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AMENDED AND RESTATED TRUST AGREEMENT
OF
CNBF CAPITAL TRUST I
Dated as of August 6, 1999
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TABLE OF CONTENTS
Page
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 2.2 Lists of Holders of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 2.3 Reports by the Property Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 2.4 Periodic Reports to Property Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 2.5 Evidence of Compliance with Conditions Precedent. . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 2.6 Events of Default; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 2.7 Default; Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE III
ORGANIZATION
SECTION 3.1 Name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 3.2 Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 3.3 Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 3.4 Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 3.5 Title to Property of the Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 3.6 Powers and Duties of the Administrators . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 3.7 Prohibition of Actions by the Trust and the Trustees . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 3.8 Powers and Duties of the Property Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 3.9 Certain Duties and Responsibilities of the Property Trustee . . . . . . . . . . . . . . . . . . . . . 20
SECTION 3.10 Certain Rights of Property Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 3.11 Delaware Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 3.12 Execution of Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 3.13 Not Responsible for Recitals or Issuance of Securities . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 3.14 Duration of Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 3.15 Mergers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE IV
SPONSOR
SECTION 4.1 Sponsor's Purchase of Common Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 4.2 Responsibilities of the Sponsor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 4.3 Right to Proceed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 4.4 Right to Dissolve Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
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ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees; Appointment of Co-Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 5.2 Delaware Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 5.3 Property Trustee; Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 5.4 Certain Qualifications of Administrators and Delaware
Trustee Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 5.5 Administrators . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 5.6 Appointment, Removal and Resignation of Trustees . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 5.7 Vacancies among Trustees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 5.8 Effect of Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 5.9 Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 5.10 Delegation of Power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 5.11 Merger, Conversion, Consolidation or Succession to Business . . . . . . . . . . . . . . . . . . . . . 34
SECTION 5.12 Appointment of Administrators . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 7.2 Execution and Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 7.3 Form and Dating . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 7.4 Registrar, Paying Agent and Exchange Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 7.5 Paying Agent to Hold Money in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 7.6 Replacement Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 7.7 Outstanding Capital Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 7.8 Capital Securities in Treasury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 7.9 Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 7.10 Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 7.11 CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
ARTICLE VIII
DISSOLUTION OF TRUST
SECTION 8.1 Dissolution of Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 Transfer of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 9.2 Transfer Procedures and Restrictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 9.3 Deemed Security Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
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SECTION 9.4 Book-Entry Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 9.5 Notices to Clearing Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 9.6 Appointment of Successor Clearing Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
ARTICLE X
LIMITATION OF LIABILITY OF HOLDERS
OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1 Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 10.2 Exculpation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 10.3 Fiduciary Duty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 10.4 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 10.5 Outside Businesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 11.2 Certain Accounting Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 11.3 Banking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 11.4 Withholding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 12.2 Meetings of the Holders; Action by Written Consent . . . . . . . . . . . . . . . . . . . . . . . . . . 64
ARTICLE XIII
REPRESENTATIONS OF PROPERTY
TRUSTEE AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of Property Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 13.2 Representations and Warranties of Delaware Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 66
ARTICLE XIV
REGISTRATION RIGHTS
SECTION 14.1 Registration Rights Agreement; Liquidated Damages . . . . . . . . . . . . . . . . . . . . . . . . . . 67
ARTICLE XV
MISCELLANEOUS
SECTION 15.1 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 15.2 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 15.3 Intention of the Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 15.4 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 15.5 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
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SECTION 15.6 Partial Enforceability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 15.7 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
TERMS OF FLOATING RATE CAPITAL
SECURITIES, SERIES A/SERIES B AND FLOATING
RATE COMMON SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I-1
EXHIBIT A-1 FORM OF CAPITAL SECURITY CERTIFICATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . X0-0
XXXXXXX X-0 XXXX XX XXXXXX SECURITY CERTIFICATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A2-1
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CROSS-REFERENCE TABLE*
Section of Section of
Trust Trust
Indenture Agreement
Act of 1939, ----------
as amended
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310(a) ..................................................................... 5.3
310(b) ..................................................................... 5.3(c), 5.3(d)
311(a) ..................................................................... 2.2(b)
311(b) ..................................................................... 2.2(b)
312(a) ..................................................................... 2.2(a)
312(b) ..................................................................... 2.2(b)
313 ..................................................................... 2.3
314(a) ..................................................................... 2.4; 3.6(j)
314(c) ..................................................................... 2.5
315(a) ..................................................................... 3.9
315(b) ..................................................................... 2.7(a)
315(c) ..................................................................... 3.9(a)
315(d) ..................................................................... 3.9(b)
316(a) ..................................................................... 2.6
316(c) ..................................................................... 3.6(e)
317(a) ..................................................................... 3.8(e); 3.8(h)
317(b) ..................................................................... 3.8(i); 7.5
*This Cross-Reference Table does not constitute part of this Trust Agreement
and shall not affect the interpretation of any of its terms or provisions.
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AMENDED AND RESTATED
TRUST AGREEMENT
OF
CNBF CAPITAL TRUST I
DATED AS OF AUGUST 6, 1999
AMENDED AND RESTATED TRUST AGREEMENT ("Trust Agreement")
dated and effective as of August 6, 1999, by and among the Trustees (as defined
herein), the Sponsor (as defined herein) and the Holders (as defined herein),
from time to time, of undivided beneficial interests in the assets of the
Capital Trust to be issued pursuant to this Trust Agreement;
WHEREAS, the Trustees and the Sponsor established CNBF
Capital Trust I (the "Trust"), a trust created under the Business Trust Act (as
defined herein) pursuant to a Trust Agreement dated as of June 14, 1999 (the
"Original Trust Agreement"), and a Certificate of Trust filed with the
Secretary of State of the State of Delaware on June 14, 1999, for the sole
purpose of issuing and selling certain securities representing undivided
beneficial interests in the assets of the Trust, investing the proceeds thereof
in certain Debentures (as defined herein) of the Debenture Issuer (as defined
herein), and engaging in only those activities necessary, advisable or
incidental thereto; and
WHEREAS, all of the Trustees and the Sponsor, by this Trust
Agreement, amend and restate each and every term and provision of the Original
Trust Agreement to provide for, among other matters, (i)the issuance of the
Common Securities by the Trust to the Sponsor, (ii) the issuance and sale of
the Capital Securities by the Trust pursuant to the Purchase Agreement, (iii)
the acquisition by the Trust from the Sponsor of all of the right, title and
interest in the Debentures, and (iv) the appointment of the Administrators;
WHEREAS, all of the Trustees and the Sponsor, by this Trust
Agreement, ratify the actions of each Trustee taken prior to the date hereof;
NOW, THEREFORE, it being the intention of the parties hereto
to continue the Trust as a business trust under the Business Trust Act and that
this Trust Agreement constitute the governing instrument of such business
trust, the Trustees declare that all assets contributed to the Trust will be
held in trust for the benefit of the holders, from time to time, of the
securities representing undivided beneficial interests in the assets of the
Trust issued hereunder, subject to the provisions of this Trust Agreement and,
in consideration of the mutual covenants contained herein and other good and
valuable consideration, the receipt of which is hereby acknowledged, the
parties, intending to be legally bound hereby, agree as follows:
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ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Definitions.
Unless the context otherwise requires:
(a) capitalized terms used in this Trust Agreement but
not defined in the preamble above or elsewhere herein have the
respective meanings assigned to them in this Section 1.1;
(b) a term defined anywhere in this Trust Agreement has
the same meaning throughout;
(c) all references to "the Trust Agreement" or "this
Trust Agreement" are to this Trust Agreement and each Annex and
Exhibit hereto, as modified, supplemented or amended from time to
time;
(d) all references in this Trust Agreement to Articles
and Sections and Annexes and Exhibits are to Articles and Sections of
and Annexes and Exhibits to this Trust Agreement unless otherwise
specified;
(e) a term defined in the Trust Indenture Act has the
same meaning when used in this Trust Agreement unless otherwise
defined in this Trust Agreement or unless the context otherwise
requires;
(f) a term defined in the Indenture (as defined herein)
has the same meaning when used in this Trust Agreement unless
otherwise defined in this Trust Agreement or the context otherwise
requires; and
(g) a reference to the singular includes the plural and
vice versa.
"Administrators" has the meaning set forth in Section 5.1.
"Affiliate" has the same meaning as given to that term in Rule
405 under the Securities Act or any successor rule thereunder.
"Agent" means any Paying Agent, Registrar or Exchange Agent.
"Authorized Officer" of a Person means any other Person that
is authorized to legally bind such former Person.
"Book-Entry Interest" means a beneficial interest in the
Global Capital Security registered in the name of a Clearing Agency or its
nominee, ownership and transfers of which shall be maintained and made through
book entries by a Clearing Agency as described in Section 9.4.
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"Business Day" means any day other than a Saturday or a Sunday
or a day on which banking institutions in Wilmington, Delaware, New York, New
York, or the State of New York are authorized or required by law or executive
order to remain closed or a day on which the principal corporate trust office
of the property trustee is closed for business.
"Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code Section 3801 et seq., as it may be amended from
time to time, or any successor legislation.
"Capital Securities" means, collectively, the Series A Capital
Securities and the Series B Capital Securities.
"Capital Securities Guarantee" means, collectively, the Series
A Capital Securities Guarantee and the Series B Capital Securities Guarantee.
"Capital Security Beneficial Owner" means, with respect to a
Book-Entry Interest, a Person who is the beneficial owner of such Book-Entry
Interest, as reflected on the books of the Clearing Agency, or on the books of
a Person maintaining an account with such Clearing Agency (directly as a
Clearing Agency Participant or as an indirect participant, in each case in
accordance with the rules of such Clearing Agency).
"Capital Security Certificate" has the meaning set forth in
Section 9.4.
"Clearing Agency" means an organization registered as a
"Clearing Agency" pursuant to Section 17A of the Exchange Act that is acting as
depositary for the Capital Securities and in whose name or in the name of a
nominee of that organization shall be registered a global certificate and which
shall undertake to effect book entry transfers and pledges of the Capital
Securities.
"Clearing Agency Participant" means a broker, dealer, bank,
other financial institution or other Person for whom from time to time the
Clearing Agency effects book entry transfers and pledges of securities
deposited with the Clearing Agency.
"Closing Time" means the "Closing Time" as defined in the
Purchase Agreement.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time, or any successor legislation.
"Commission" means the United States Securities and Exchange
Commission as from time to time constituted, or if at any time after the
execution of this Trust Agreement such Commission is not existing and
performing the duties now assigned to it under applicable federal securities
laws, then the body performing such duties at such time.
"Common Securities" has the meaning specified in Section
7.1(a).
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"Common Securities Subscription Agreement" means the Common
Securities Subscription Agreement, dated as of the Closing Time, between the
Trust and the Sponsor relating to the Common Securities.
"Company Indemnified Person" means (a) any Administrator; (b)
any Affiliate of any Administrator; (c) any officers, directors, shareholders,
members, partners, employees, representatives or agents of any Administrator;
or (d) any officer, employee or agent of the Trust or its Affiliates.
"Corporate Trust Office" means the office of the Property
Trustee at which the corporate trust business of the Property Trustee shall, at
any particular time, be principally administered, which office at the date of
execution of this Trust Agreement is located at Xxxxxx Square North, 0000 Xxxxx
Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000, Attention: Corporate Trust
Administration.
"Covered Person" means: (a) any officer, director,
shareholder, partner, member, representative, employee or agent of (i) the
Trust or (ii) the Trust's Affiliates; and (b) any Holder of Securities.
"Debenture Issuer" means CNB Financial Corp., a New York
corporation, or any successor entity resulting from any consolidation,
amalgamation, merger or other business combination, in its capacity as issuer
of the Debentures under the Indenture.
"Debenture Subscription Agreement" means the Debenture
Subscription Agreement, dated as of the Closing Time, between the Debenture
Issuer and the Trust in respect of the Debentures.
"Debenture Trustee" means Wilmington Trust Company, a Delaware
banking corporation, as trustee under the Indenture until a successor is
appointed thereunder, and thereafter means such successor trustee.
"Debentures" means, collectively, the Series A Debentures and
the Series B Debentures.
"Default" means an event, act or condition that with notice or
lapse of time, or both, would constitute an Event of Default.
"Definitive Capital Securities" has the meaning set forth in
Section 7.3(c).
"Delaware Trustee" has the meaning set forth in Section 5.1.
"Direct Action" has the meaning set forth in Section 3.8(e).
"Distribution" means a distribution payable to Holders in
accordance with Section 6.1.
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"DTC" means The Depository Trust Company, the initial Clearing
Agency.
"Event of Default" with respect to the Securities means an
Event of Default (as defined in the Indenture) that has occurred and is
continuing with respect to the Debentures.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, or any successor legislation.
"Exchange Agent" has the meaning set forth in Section 7.4.
"Exchange Offer" means the offer that may be made pursuant to
the Registration Rights Agreement (i) by the Trust to exchange Series B Capital
Securities for Series A Capital Securities and (ii) by the Debenture Issuer to
exchange Series B Debentures for Series A Debentures and to execute the Series
B Capital Securities Guarantee in respect of the Series B Capital Securities.
"Federal Reserve Board" means the Board of Governors of the
Federal Reserve System.
"Fiduciary Indemnified Person" has the meaning set forth in
Section 10.4(b).
"Fiscal Year" has the meaning set forth in Section 11.1.
"Global Capital Security'' has the meaning set forth in
Section 7.3(a).
"Holder" means a Person in whose name a Security or Successor
Security is registered, such Person being a beneficial owner within the meaning
of the Business Trust Act.
"Indemnified Person" means a Company Indemnified Person or a
Fiduciary Indemnified Person.
"Indenture" means the Indenture, dated as of the Closing Time,
between the Debenture Issuer and the Debenture Trustee, as amended from time to
time.
"Initial Optional Redemption Date" has the meaning set forth
in Section 4(b) of Annex I hereto.
"Initial Purchaser" has the meaning specified in the Purchase
Agreement.
"Investment Company" means an investment company as defined in
the Investment Company Act.
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"Investment Company Act" means the Investment Company Act of
1940, as amended from time to time, or any successor legislation.
"Investment Company Event" has the meaning set forth in
Section 4(c) of Annex I hereto.
"Legal Action" has the meaning set forth in Section 3.6(g).
"Like Amount" has the meaning set forth in Section 3 of Annex
I hereto.
"List of Holders" has the meaning set forth in Section 2.2(a).
"Majority in Liquidation Amount" means, with respect to the
Trust Securities, except as provided in the terms of the Capital Securities or
by the Trust Indenture Act, Holders of outstanding Trust Securities voting
together as a single class or, as the context may require, Holders of
outstanding Capital Securities or Holders of outstanding Common Securities
voting separately as a class, who are the record owners of more than 50% of the
aggregate liquidation amount (including the amount that would be paid on
redemption, liquidation or otherwise, plus accumulated and unpaid Distributions
to the date upon which the voting percentages are determined) of all
outstanding Securities of the relevant class.
"Offering Memorandum" has the meaning set forth in Section
3.6(b)(i).
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chairman, the Chief Executive Officer, the President,
an Executive or Senior Vice President, or a Vice President, and by the Chief
Financial Officer, the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary. Any Officers' Certificate delivered by the Trust shall be
signed by at least one Administrator. Any Officers' Certificate delivered with
respect to compliance with a condition or covenant provided for in this Trust
Agreement shall include:
(a) statement by each officer signing the Officers'
Certificate that such officer has read the covenants or conditions 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 or not, in the opinion of
such officer, such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for or an employee of the Sponsor or any Affiliate of the
Sponsor.
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"Participants" has the meaning specified in Section 7.3(b).
"Paying Agent" has the meaning specified in Section 7.4.
"Payment Amount" has the meaning specified in Section 6.1.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"PORTAL" has the meaning set forth in Section 3.6(b) (iii).
"Property Trustee" has the meaning set forth in Section
5.3(a).
"Property Trustee Account" has the meaning set forth in
Section 3.8(c)(i).
"Purchase Agreement" means the Purchase Agreement relating to
the Capital Securities, dated August 4, by and among the Trust, the Debenture
Issuer and the Initial Purchaser named therein.
"QIBs" shall mean qualified institutional buyers as defined in
Rule 144A.
"Quorum" means a majority of the Administrators or, if there
are only two Administrators, both of them.
"Redemption Price" has the meaning set forth in Section 4(a)
of Annex I hereto.
"Registrar" has the meaning set forth in Section 7.4.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of [_________], by and among the Trust, the Debenture
Issuer and the Initial Purchaser named therein, as amended from time to time.
"Registration Statement" has the meaning set forth in the
Registration Rights Agreement.
"Regulatory Capital Event" has the meaning set forth in
Section 4(c) of Annex I hereto.
"Related Party" means, with respect to the Sponsor, any direct
or indirect wholly owned subsidiary of the Sponsor or any other Person that
owns, directly or indirectly, 100% of the outstanding voting securities of the
Sponsor.
"Responsible Officer" means any officer within the Corporate
Trust Office of the Property Trustee with direct responsibility for the
administration of this
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Trust Agreement and also means, with respect to a particular corporate trust
matter, any other officer of the Property Trustee to whom such matter is
referred because of that officer's knowledge of and familiarity with the
particular subject.
"Restricted Capital Security" means a Capital Security
required by Section 9.2 to contain a Restricted Securities Legend.
"Restricted Definitive Capital Securities" has the meaning set
forth in Section 7.3(c).
"Restricted Securities Legend" has the meaning set forth in
Section 9.2(i).
"Rule 3a-5" means Rule 3a-5 under the Investment Company Act,
or any successor rule or regulation.
"Rule 144" means Rule 144 under the Securities Act, as such
rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission.
"Rule 144A" means Rule 144A under the Securities Act, as such
rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission.
"Securities" or "Trust Securities" means the Common Securities
and the Capital Securities.
"Securities Act" means the Securities Act of 1933, as amended
from time to time, or any successor legislation.
"Securities Guarantees" means the Common Securities Guarantee
and the Capital Securities Guarantee.
"Series A Capital Securities" has the meaning specified in
Section 7.1(a).
"Series A Capital Securities Guarantee" means the Series A
Capital Securities Guarantee Agreement, dated as of the Closing Time, by, CNB
Financial Corp. in respect of the Series A Capital Securities.
"Series A Debentures" means the Floating Rate Junior
Subordinated Deferrable Interest Debentures due September 30, 2029, Series A,
of the Debenture Issuer issued pursuant to the Indenture.
"Series B Capital Securities" has the meaning specified in
Section 7.1(a).
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"Series B Capital Securities Guarantee" means the Series B
Capital Securities Guarantee Agreement to be entered into in connection with
the Exchange Offer by CNB Financial Corp., in respect of the Series B Capital
Securities.
"Series B Debentures" means the Floating Rate Junior
Subordinated Deferrable Interest Debentures due September 30, 2029, Series B,
of the Debenture Issuer to be issued pursuant to the Indenture in connection
with the Exchange Offer.
"Special Event" has the meaning set forth in Section 4(c) of
Annex I hereto.
"Sponsor" means CNB Financial Corp., a New York corporation,
or any successor entity resulting from any merger, consolidation, amalgamation
or other business combination, in its capacity as sponsor of the Trust.
"Successor Delaware Trustee" has the meaning set forth in
Section 5.6(b)(ii).
"Successor Entity" has the meaning set forth in Section
3.15(b)(i).
"Successor Property Trustee" has the meaning set forth in
Section 3.8(f)(ii).
"Successor Securities" has the meaning set forth in Section
3.15(b)(i).
"Super Majority" has the meaning set forth in Section 2.6(a)
(ii).
"Tax Event" has the meaning set forth in Section 4(c) of Annex
I hereto.
"25% in Liquidation Amount" means, with respect to the Trust
Securities, except as provided in the terms of the Capital Securities or by the
Trust Indenture Act, Holders of outstanding Trust Securities voting together as
a single class or, as the context may require, Holders of outstanding Capital
Securities or Holders of outstanding Common Securities voting separately as a
class, who are the record owners of 25% or more of the aggregate liquidation
amount (including the amount that would be paid on redemption, liquidation or
otherwise, plus accumulated and unpaid Distributions to the date upon which the
voting percentages are determined) of all outstanding Securities of the
relevant class.
"Treasury Regulations" means the income tax regulations,
including temporary and proposed regulations, promulgated under the Code by the
United States Treasury Department, as such regulations may be amended from time
to time (including corresponding provisions of succeeding regulations).
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended from time to time, or any successor legislation.
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"Trust Property" means (a) the Debentures, (b) any cash on
deposit in or owing to the Property Trustee Account, (c) all proceeds and
rights in respect of the foregoing and (d) any other property and assets for
the time being held or deemed to be held by the Property Trustee pursuant to
this Trust Agreement.
"Trustee" or "Trustees" means each Person who has signed this
Trust Agreement as a trustee, so long as such Person shall continue as a
trustee of the Trust in accordance with the terms hereof, and all other Persons
who may from time to time be duly appointed, qualified and serving as Trustees
in accordance with the provisions hereof, and references herein to a Trustee or
the Trustees shall refer to such Person or Persons solely in their capacity as
trustees hereunder.
"Unrestricted Global Capital Security" has the meaning set
forth in Section 9.2(b).
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
(a) This Trust Agreement is subject to the provisions of
the Trust Indenture Act that are required to be part of this Trust
Agreement in order for this Trust Agreement to be qualified under the
Trust Indenture Act and shall, to the extent applicable, be governed
by such provisions.
(b) The Property Trustee shall be the only Trustee which
is a trustee for the purposes of the Trust Indenture Act.
(c) 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.
(d) The application of the Trust Indenture Act to this
Trust Agreement shall not affect the nature of the Securities as
equity securities representing undivided beneficial interests in the
assets of the Trust.
SECTION 2.2 Lists of Holders of Securities.
(a) Each of the Sponsor and the Administrators on behalf
of the Trust shall provide the Property Trustee, unless the Property
Trustee is Registrar for the Securities with such information as is
required by Section 312(a) of the Trust Indenture Act at the times and
in the manner provided in Section 312(a). The Property Trustee shall
preserve, in as current a form as is reasonably practicable, all
information contained in Lists of Holders given to it or which it
receives in the capacity as Paying Agent (if acting in such capacity),
provided that the Property Trustee may destroy any List of Holders
previously given to it on receipt of a new List of Holders.
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(b) The Property Trustee shall comply with its
obligations under Sections 311(a), 311(b) and 312(b) of the Trust
Indenture Act.
SECTION 2.3 Reports by the Property Trustee.
Within 60 days after the date hereof, and no later than the
anniversary date hereof in each succeeding year, 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 and in the manner
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.
SECTION 2.4 Periodic Reports to Property Trustee.
Each of the Sponsor and the Administrators on behalf of the
Trust shall provide to the Property Trustee such documents, reports and
information as are required by Section 314 (if any) of the Trust Indenture Act
and the compliance certificate required by Section 314 of the Trust Indenture
Act in the form, in the manner and at the times required by Section 314 of the
Trust Indenture Act.
SECTION 2.5 Evidence of Compliance with Conditions Precedent.
Each of the Sponsor and the Administrators on behalf of the
Trust shall provide to the Property Trustee such evidence of compliance with
any conditions precedent provided for in this Trust Agreement that 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 by an officer pursuant to Section
314(c)(1) of the Trust Indenture Act may be given in the form of an Officers'
Certificate.
SECTION 2.6 Events of Default; Waiver.
(a) The Holders of a Majority in Liquidation Amount of
Capital Securities may, on behalf of the Holders of all of the Capital
Securities, waive any past Event of Default in respect of the Capital
Securities and its consequences, provided that, if the underlying
Event of Default under the Indenture:
(i) is not waivable under the Indenture, the
Event of Default under the Trust Agreement shall also not be
waivable; or
(ii) requires the consent or vote of greater than
a majority in aggregate principal amount of the holders of the
Debentures (a "Super Majority") to be waived under the
Indenture, the Event of Default under the Trust Agreement may
only be waived by the vote of the Holders of at least the
proportion in aggregate liquidation amount of the Capital
Securities that the relevant Super Majority represents of the
aggregate principal amount of the Debentures outstanding.
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The foregoing provisions of this Section 2.6(a) shall be in lieu of Section
316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of the
Trust Indenture Act is hereby expressly excluded from this Trust Agreement and
the Securities, as permitted by the Trust Indenture Act. Upon such waiver, any
such Default shall cease to exist, and any Event of Default with respect to the
Capital Securities arising therefrom shall be deemed to have been cured, for
every purpose of this Trust Agreement, but no such waiver shall extend to any
subsequent or other Default or an Event of Default with respect to the Capital
Securities or impair any right consequent thereon. Any waiver by the Holders of
the Capital Securities of an Event of Default with respect to the Capital
Securities shall also be deemed to constitute a waiver by the Holders of the
Common Securities of any such Event of Default with respect to the Common
Securities for all purposes of this Trust Agreement without any further act,
vote, or consent of the Holders of the Common Securities.
(b) The Holders of a Majority in Liquidation Amount of
the Common Securities may, by vote, on behalf of the Holders of all of
the Common Securities, waive any past Event of Default with respect to
the Common Securities and its consequences, provided that, if the
underlying Event of Default under the Indenture:
(i) is not waivable under the Indenture, except
where the Holders of the Common Securities are deemed to have
waived such Event of Default under the Trust Agreement as
provided below in this Section 2.6(b), the Event of Default
under the Trust Agreement shall also not be waivable; or
(ii) requires the consent or vote of a Super
Majority to be waived, except where the Holders of the Common
Securities are deemed to have waived such Event of Default
under the Trust Agreement as provided below in this Section
2.6(b), the Event of Default under the Trust Agreement may
only be waived by the vote of the Holders of at least the
proportion in aggregate liquidation amount of the Common
Securities that the relevant Super Majority represents of the
aggregate principal amount of the Debentures outstanding;
provided further, each Holder of Common Securities will be deemed to have
waived any such Event of Default and all Events of Default with respect to the
Common Securities and their consequences if all Events of Default with respect
to the Capital Securities have been cured, waived or otherwise eliminated, and
until such Events of Default have been so cured, waived or otherwise
eliminated, the Property Trustee will be deemed to be acting solely on behalf
of the Holders of the Capital Securities and only the Holders of the Capital
Securities will have the right to direct the Property Trustee in accordance
with the terms of the Securities. The foregoing provisions of this Section
2.6(b) shall be in lieu of Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust
Indenture Act and such Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust
Indenture Act are hereby expressly excluded from this Trust Agreement and the
Securities, as permitted by the Trust Indenture Act. Subject to the foregoing
provisions of this Section 2.6(b), upon such waiver, any such Default shall
cease to exist and any Event of Default with respect to the Common Securities
arising
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therefrom shall be deemed to have been cured for every purpose of this Trust
Agreement, but no such waiver shall extend to any subsequent or other Default
or Event of Default with respect to the Common Securities or impair any right
consequent thereon.
(c) A waiver of an Event of Default under the Indenture
by the Property Trustee, at the direction of the Holders of the
Capital Securities, constitutes a waiver of the corresponding Event of
Default under this Trust Agreement. The foregoing provisions of this
Section 2.6(c) shall be in lieu of Section 316(a)(1)(B) of the Trust
Indenture Act and such Section 316(a)(1)(B) of the Trust Indenture Act
is hereby expressly excluded from this Trust Agreement and the
Securities, as permitted by the Trust Indenture Act.
SECTION 2.7 Default; Notice.
(a) The Property Trustee shall, within 90 days after a
Responsible Officer obtains actual knowledge of the occurrence of a
Default with respect to the Securities, transmit by mail, first class
postage prepaid, to the Holders and the Administrators, notices of all
such Defaults, unless such Defaults have been cured before the giving
of such notice or previously waived.
(b) The Property Trustee shall not be deemed to have
knowledge of any Default or Event of Default except:
(i) a Default or Event of Default under Sections
5.01(a) (other than the payment of Compounded Interest,
Additional Sums and Liquidated Damages) and 5.01(b) of the
Indenture; or
(ii) any Default or Event of Default as to which
the Property Trustee shall have received written notice or of
which a Responsible Officer charged with the administration of
the Trust Agreement shall have actual knowledge.
(c) Within five Business Days after a Responsible Officer
obtains actual knowledge of the occurrence of any Event of Default,
the Property Trustee shall transmit notice of such Event of Default to
the Holders of the Capital Securities, the Administrators and the
Sponsor, unless such Event of Default shall have been cured or waived.
The Sponsor and the Administrators shall file annually with the
Property Trustee a certification as to whether or not they are in
compliance with all the conditions and covenants applicable to them
under this Trust Agreement.
ARTICLE III
ORGANIZATION
SECTION 3.1 Name.
The Trust is named CNBF Capital Trust I as such name may be
modified from time to time by the Administrators following written notice to
the
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Delaware Trustee, the Property Trustee and the Holders. The Trust's activities
may be conducted under the name of the Trust or any other name deemed advisable
by the Administrators.
SECTION 3.2 Office.
The address of the principal office of the Trust is c/o CNB
Financial Corp., 00 Xxxxxx Xxxxxx, Xxxxxxxxxxx, XX 00000 or such other address
as the Administrators may designate.
SECTION 3.3 Purpose.
The exclusive purposes and functions of the Trust are (a) to
issue and sell Securities, (b) use the proceeds from the sale of the Securities
to acquire the Debentures, (c) to fulfill obligations under the Registration
Rights Agreement and engage in the Exchange Offer, (d) maintain its status as a
grantor trust for federal income tax purposes, and (e) except as otherwise
limited herein, to engage in only those other activities necessary, advisable
or incidental thereto, including without limitation, those activities specified
in Sections 3.6, 3.8, 3.9, 3.10, 3.11 and/or 3.12. The Trust shall not borrow
money, issue debt or reinvest proceeds derived from investments, mortgage or
pledge any of its assets, or otherwise undertake (or permit to be undertaken)
any activity that would cause the Trust not to be classified for United States
federal income tax purposes as a grantor trust.
SECTION 3.4 Authority.
Subject to the limitations provided in this Trust Agreement,
the Property Trustee, the Delaware Trustee and the Administrators shall carry
out the purposes of the Trust. Notwithstanding anything herein, it is the
intent of the parties hereto that the Administrators shall not be trustees or,
to the fullest extent permitted by law, fiduciaries with respect to the Trust
and this Trust Agreement shall be construed in a manner consistent with such
intent. The Property Trustee shall have the right and power to perform those
duties assigned to the Administrators. An action taken by the Property
Trustee in accordance with its powers shall constitute the act of and serve to
bind the Trust. In dealing with the Trustees acting on behalf of the Trust, no
Person shall be required to inquire into the authority of the Trustees to bind
the Trust. Persons dealing with the Trust are entitled to rely conclusively on
the power and authority of the Trustees as set forth in this Trust Agreement.
SECTION 3.5 Title to Property of the Trust.
Except as provided in Section 3.8 with respect to the
Debentures and the Property Trustee Account or as otherwise provided in this
Trust Agreement, legal title to all assets of the Trust shall be vested in the
Trust. The Holders shall not have legal title to any part of the assets of the
Trust, but shall have an undivided beneficial interest in the assets of the
Trust.
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SECTION 3.6 Powers and Duties of the Administrators.
The Administrators shall have the power and authority, and are
hereby authorized:
(i) in connection with the issue and sale of the
Capital Securities and the consummation of the Exchange Offer,
at the direction of the Sponsor, to:
(A) assist in preparation of an offering
memorandum (the "Offering Memorandum") in preliminary
and final form prepared by the Sponsor, in relation
to the offering and sale of Series A Capital
Securities to QIBs in reliance on Rule 144A and to
institutional "accredited investors" (as defined in
Rule 501(a)(1), (2), (3) or (7) under the Securities
Act), and to execute and file with the Commission, at
such time as is determined by the Sponsor, any
Registration Statement, including any amendments
thereto, as contemplated by the Registration Rights
Agreement;
(B) assist in compliance state securities or blue
sky law to be necessary in order to qualify or
register all or part of the Capital Securities in any
State in which the Sponsor has determined to qualify
or register such Capital Securities for sale;
(C) assist in connection with an application to
permit the Capital Securities to trade or be quoted
or listed in or on the Private Offerings, Resales and
Trading through Automated Linkages ("PORTAL") Market;
and
(D) if required, execute and file with the
Commission a registration statement on Form 8-A,
including any amendments thereto, prepared by the
Sponsor, relating to the registration of the Capital
Securities under Section 12(b) or 12(g) of the
Exchange Act, as the case may be.
(ii) to take all actions and perform such duties
as may be required of the Administrators pursuant to the terms
of the Securities;
(iii) to take such ministerial acts at the
direction of the Sponsor to cause the Trust to comply with the
Trust's obligations under the Trust Indenture Act;
(iv) to give the certificate required by Section
314(a)(4) of the Trust Indenture Act to the Property Trustee,
which certificate may be executed by any Administrator;
(v) to incur expenses that are necessary or
incidental to carry out any of the purposes of the Trust;
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(vi) to act as, or appoint another Person to act
as, Registrar and Exchange Agent for the Securities or to
appoint a Paying Agent for the Securities as provided in
Section 7.4 except for such time as such power to appoint a
Paying Agent is vested in the Property Trustee;
(vii) to give prompt written notice to the Property
Trustee and to the Holders of any notice received from the
Debenture Issuer of its election to defer payments of interest
on the Debentures by extending the interest payment period
under the Indenture;
(viii) to take all action that may be necessary or
appropriate for the preservation and the continuation of the
Trust's valid existence, rights, franchises and privileges as
a statutory business trust under the laws of the State of
Delaware and of each other jurisdiction in which such
existence is necessary to protect the limited liability of the
Holders or to enable the Trust to effect the purposes for
which the Trust was created;
(ix) along with the Property Trustee to take any
action, not inconsistent with this Trust Agreement or with
applicable law, that the Administrators determine to be
necessary or desirable in carrying out the activities of the
Trust as set out in this Section 3.6, including, but not
limited to:
(A) causing the Trust not to be deemed to be an
Investment Company required to be registered under
the Investment Company Act;
(B) causing the Trust to continue to be
classified for United States federal income tax
purposes as a grantor trust; and
(C) cooperating with the Debenture Issuer to
ensure that the Debentures will be treated as
indebtedness of the Debenture Issuer for United
States federal income tax purposes;
(x) to take all action necessary to consummate
the Exchange Offer or otherwise cause the Capital Securities
to be registered pursuant to an effective registration
statement in accordance with the provisions of the
Registration Rights Agreement;
(xi) to take all action necessary to cause all
applicable tax returns and tax information reports that are
required to be filed with respect to the Trust to be duly
prepared and filed by the Administrators, on behalf of the
Trust; and
(xii) to execute and deliver all documents or
instruments, perform all duties and powers, and do all things
(including the incurring
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of expenses) for and on behalf of the Trust in all matters
necessary, advisable or incidental to the foregoing.
The Administrators shall not be responsible for monitoring the
compliance by the Property Trustee, the Delaware Trustee or the Sponsor with
their respective duties under this Trust Agreement, nor shall an Administrator
be liable for the default or misconduct of any other Administrators, Trustee or
the Sponsor.
The Administrators must exercise the powers set forth in this
Section 3.6 in a manner that is consistent with the purposes and functions of
the Trust set out in Section 3.3, and the Administrators shall not take any
action that is inconsistent with the purposes and functions of the Trust set
forth in Section 3.3.
Subject to this Section 3.6, the Administrators shall have
none of the powers or the authority of the Property Trustee set forth in
Section 3.8.
Any expenses incurred by the Administrators pursuant to this
Section 3.6 shall be reimbursed by the Debenture Issuer.
SECTION 3.7 Prohibition of Actions by the Trust and the Trustees.
The Trust shall not, and the Trustees (including the Property
Trustee and the Delaware Trustee) shall not, and the Administrators shall cause
the Trust not to, engage in any activity other than as required or authorized
by this Trust Agreement. The Trust shall not:
(i) invest any proceeds received by the Trust from
holding the Debentures, but shall distribute all such proceeds to
Holders pursuant to the terms of this Trust Agreement and of the
Securities;
(ii) acquire any assets other than as expressly provided
herein;
(iii) possess Trust Property for other than a Trust purpose
or execute any mortgage in respect of, or pledge, any Trust Property;
(iv) make any loans or incur any indebtedness other than
loans represented by the Debentures;
(v) possess any power or otherwise act in such a way as
to vary the Trust Property or the terms of the Securities in any way
whatsoever;
(vi) issue any securities or other evidences of beneficial
ownership of, or beneficial interest in, the Trust other than the
Securities;
(vii) other than as provided in this Trust Agreement or
Annex I hereto, (A) direct the time, method and place of conducting
any proceeding with respect to any remedy available to the Debenture
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Trustee, or exercising any trust or power conferred upon the Debenture
Trustee with respect to the Debentures, (B) waive any past default
that is waivable under the Indenture, or (C) exercise any right to
rescind or annul any declaration that the principal of all the
Debentures shall be due and payable; or
(viii) consent to any amendment, modification or termination
of the Indenture or the Debentures where such consent shall be
required unless the Trust shall have received an opinion of
independent tax counsel experienced in such matters to the effect that
such amendment, modification or termination will not cause more than
an insubstantial risk that the Trust will not be classified as a
grantor trust for United States federal income tax purposes.
SECTION 3.8 Powers and Duties of the Property Trustee.
(a) The legal title to the Debentures shall be owned by
and held of record in the name of the Property Trustee in trust for
the benefit of the Trust and the Holders. The right, title and
interest of the Property Trustee to the Debentures shall vest
automatically in each Person who may hereafter be appointed as
Property Trustee in accordance with Section 5.6. Such vesting and
cessation of title shall be effective whether or not conveyancing
documents with regard to the Debentures have been executed and
delivered.
(b) The Property Trustee shall not transfer its right,
title and interest in the Debentures to the Administrators or to the
Delaware Trustee (if the Property Trustee does not also act as
Delaware Trustee).
(c) The Property Trustee shall:
(i) establish and maintain a segregated
non-interest bearing trust account in its Trust Department
(the "Property Trustee Account") in the name of and under the
exclusive control of the Property Trustee on behalf of the
Holders and, upon the receipt of payments of funds made in
respect of the Debentures held by the Property Trustee,
deposit such funds into the Property Trustee Account and make
payments or cause the Paying Agent to make payments to the
Holders from the Property Trustee Account in accordance with
Section 6.1; funds in the Property Trustee Account shall be
held uninvested until disbursed in accordance with this Trust
Agreement;
(ii) engage in such ministerial activities as
shall be necessary or appropriate to effect the redemption of
the Securities to the extent the Debentures are redeemed or
mature; and
(iii) upon written notice of distribution issued by
the Administrators in accordance with the terms of the
Securities, engage in such ministerial activities as shall be
necessary or appropriate to effect
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the distribution of the Debentures to Holders upon the occurrence of
certain events.
(d) The Property Trustee shall take all actions and
perform such duties, in addition to those set out in Section 3.6(ix),
as may be specifically required of the Property Trustee pursuant to
the terms of this Trust Agreement and the Securities.
(e) Subject to Section 3.9(a), the Property Trustee shall
take any Legal Action which arises out of or in connection with an
Event of Default of which a Responsible Officer has actual knowledge
or the Property Trustee's duties and obligations under this Trust
Agreement or the Trust Indenture Act may so require; and if the
Property Trustee shall have failed to take such Legal Action following
a written request from the Holders, the Holders of the Capital
Securities may, to the fullest extent permitted by law, take such
Legal Action, to the same extent as if such Holders of Capital
Securities held an aggregate principal amount of Debentures equal to
the aggregate liquidation amount of such Capital Securities, without
first proceeding against the Property Trustee or the Trust; provided,
however, that if an Event of Default has occurred and is continuing
and such event is attributable to the failure of the Debenture Issuer
to pay the principal of or interest (including Compounded Interest and
Additional Sums, if any) or Liquidated Damages, if any, on the
Debentures on the date such principal, or interest (including
Compounded Interest and Additional Sums, if any) or Liquidated
Damages, if any, is otherwise payable (or in the case of redemption,
on the redemption date), then a Holder of Capital Securities may
directly institute a proceeding for enforcement of payment to such
Holder of the principal of or interest (including Compounded Interest
and Additional Sums, if any) or Liquidated Damages, if any, on the
Debentures having a principal amount equal to the aggregate
liquidation amount of the Capital Securities of such Holder (a "Direct
Action") on or after the respective due date specified in the
Debentures. In connection with such Direct Action, the Holders of the
Common Securities will be subrogated to the rights of such Holder of
Capital Securities to the extent of any payment made by the Debenture
Issuer to such Holder of Capital Securities in such Direct Action.
Except as provided herein, Holders of Capital Securities will not be
able to exercise directly any other remedy available to the holders of
the Debentures.
(f) The Property Trustee shall continue to serve as a
Trustee until either:
(i) the Trust has been completely liquidated and
the proceeds of the liquidation distributed to the Holders
pursuant to the terms of the Securities and this Trust
Agreement; or
(ii) a successor Property Trustee has been
appointed and has accepted that appointment in accordance with
Section 5.6 (a "Successor Property Trustee").
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(g) The Property Trustee shall have the legal power to
exercise all of the rights, powers and privileges of a holder of
Debentures under the Indenture and, if an Event of Default actually
known to a Responsible Officer occurs and is continuing, the Property
Trustee shall, for the benefit of Holders, enforce its rights as
holder of the Debentures subject to the rights of the Holders pursuant
to the terms of this Trust Agreement and the Securities.
(h) The Property Trustee shall be authorized to undertake
any actions set forth in Section 317(a) of the Trust Indenture Act.
(i) For such time as the Property Trustee is the Paying
Agent, the Property Trustee may authorize one or more Persons to act
as additional Paying Agents and to pay Distributions, redemption
payments or liquidation payments on behalf of the Trust with respect
to all Securities and any such Paying Agent shall comply with Section
317(b) of the Trust Indenture Act. Any such additional Paying Agent
may be removed by the Property Trustee at any time the Property
Trustee remains as Paying Agent and a successor Paying Agent or
additional Paying Agents may be (but are not required to be) appointed
at any time by the Property Trustee while the Property Trustee is
acting as Paying Agent.
(j) Subject to this Section 3.8, the Property Trustee
shall have none of the duties or liabilities, assigned to the
Administrators in Section 3.6.
Notwithstanding anything expressed or implied to the contrary
in this Trust Agreement or any Annex or Exhibit hereto, (i) the Property
Trustee must exercise the powers set forth in this Section 3.8 in a manner that
is consistent with the purposes and functions of the Trust set out in Section
3.3, and (ii) the Property Trustee shall not take any action that is
inconsistent with the purposes and functions of the Trust set out in Section
3.3.
SECTION 3.9 Certain Duties and Responsibilities of the Property Trustee.
(a) The Property Trustee, before the occurrence of any
Event of Default (of which, other than in the case of Events of
Default under Sections 5.01(a) and 5.01(b) of the Indenture, a
Responsible Officer of the Property Trustee has actual knowledge) and
after the curing or waiving of all such Events of Default that may
have occurred, shall undertake to perform only such duties as are
specifically set forth in this Trust Agreement and in the Securities
and no implied covenants shall be read into this Trust Agreement
against the Property Trustee. In case an Event of Default has occurred
(that has not been cured or waived pursuant to Section 2.6) of which a
Responsible Officer has actual knowledge, the Property Trustee 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 their
exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
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(b) 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 an Event of
Default (of which, other than in the case of Events of Default
under Sections 5.01(a) and 5.01(b) of the Indenture, a
Responsible Officer of the Property Trustee has actual
knowledge) 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 and in the
Securities 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 and in the Securities, and no implied
covenants or obligations shall be read into this
Trust Agreement against the Property Trustee; 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; provided,
however, that in the case of any such certificates or
opinions that by any provision hereof 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 on
their face 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 a Responsible
Officer, unless it shall be proved that the Property Trustee
was negligent in ascertaining the pertinent facts;
(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 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) 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
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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;
(v) the Property Trustee's sole duty with respect
to the custody, safekeeping and physical preservation of the
Debentures and the Property Trustee 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;
(vi) the Property Trustee shall have no duty or
liability for or with respect to the value, genuineness,
existence or sufficiency of the Debentures or the payment of
any taxes or assessments levied thereon or in connection
therewith;
(vii) the Property Trustee shall not be liable for
any interest on any money received by it except as it may
otherwise agree in writing with the Sponsor. Money held by the
Property Trustee need not be segregated from other funds held
by it except in relation to the Property Trustee Account
maintained by the Property Trustee pursuant to Section
3.8(c)(i) and except to the extent otherwise required by law;
and
(viii) the Property Trustee shall not be responsible
for monitoring the compliance by the Administrators or the
Sponsor with their respective duties under this Trust
Agreement, nor shall the Property Trustee be liable for any
default or misconduct of the Administrators or the Sponsor.
SECTION 3.10 Certain Rights of Property Trustee.
(a) Subject to the provisions of Section 3.9:
(i) the Property Trustee may conclusively rely
and shall be fully protected in acting or refraining from
acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be
genuine and to have been signed, sent or presented by the
proper party or parties;
(ii) any direction or act of the Sponsor by this
Trust Agreement may be sufficiently evidenced by an Officers'
Certificate;
(iii) whenever in the administration of this Trust
Agreement, the Property Trustee shall deem it desirable that a
matter be proved or established before taking, suffering or
omitting any action hereunder, the
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Property Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part,
request and conclusively rely upon an Officers' Certificate
which, upon receipt of such request, shall be promptly
delivered by the Sponsor;
(iv) 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 rerecording,
refiling or registration thereof;
(v) the Property Trustee may consult with counsel
or other experts of its selection, and the advice or opinion
of such counsel and experts with respect to legal matters or
advice within the scope of such experts' area of expertise
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 accordance with such advice or
opinion; such counsel may be counsel to the Sponsor or any of
its Affiliates, and may include any of its employees; and 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;
(vi) 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
Holder, unless such Holder shall have provided to the Property
Trustee security or indemnity, reasonably satisfactory to the
Property Trustee, against the costs, expenses (including
reasonable attorneys' fees and expenses and the expenses of
the Property Trustee's agents, nominees or custodians) and
liabilities that might be incurred by it in complying with
such request or direction, including such reasonable advances
as may be requested by the Property Trustee; provided,
however, that, nothing contained in this Section 3.10(a)(vi)
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;
(vii) the Property Trustee shall not be bound to
make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, 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, in its discretion, may
make such further inquiry or investigation into such facts or
matters as it may see fit;
(viii) the Property Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder
either directly or by or through agents, custodians, nominees
or attorneys, and the Property
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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;
(ix) any action taken by the Property Trustee or
its agents hereunder shall bind the Trust and the Holders, and
the signature of the Property Trustee or its agents alone
shall be sufficient and effective to perform any such action
and no third party shall be required to inquire as to the
authority of the Property Trustee to so act or as to its
compliance with any of the terms and provisions of this Trust
Agreement, both of which shall be conclusively evidenced by
the Property Trustee's or its agent's taking such action;
(x) 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 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 Securities as would be
entitled to direct the Property Trustee under the terms of the
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 protected in conclusively relying on or acting in
accordance with such instructions;
(xi) 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; and
(xii) The Property Trustee shall not be liable for
any action taken, suffered, or omitted to be taken by it in
good faith, without negligence or willful misconduct, and
reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Trust
Agreement.
(b) No provision of this Trust Agreement shall be deemed
to impose any duty or obligation on the Property Trustee to perform
any act or acts or exercise any right, power, duty or obligation
conferred or imposed on it, in any jurisdiction in which it shall be
illegal, or in which 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 the Property Trustee shall
be construed to be a duty.
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SECTION 3.11 Delaware Trustee.
Notwithstanding any other provision of this Trust Agreement
other than Section 5.2, 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 Trustees described in this Trust Agreement (except as
required under the Business Trust Act). Except as set forth in Section 5.2, the
Delaware Trustee shall be a Trustee for the sole and limited purpose of
fulfilling the requirements of Section 3807 of the Business Trust Act. In the
event the Delaware Trustee shall at any time be required to take any action or
perform any duty hereunder, the Delaware Trustee shall be entitled to the
benefits of Section 3.9(b)(ii) to (viii), inclusive, and Section 3.10. No
implied covenants or obligations shall be read into this Trust Agreement
against the Delaware Trustee.
SECTION 3.12 Execution of Documents.
Unless otherwise required by applicable law, each
Administrator, individually, is authorized to execute and deliver on behalf of
the Trust any documents, agreements, instruments or certificates that the
Administrators have the power and authority to execute pursuant to Section 3.6.
SECTION 3.13 Not Responsible for Recitals or Issuance of Securities.
The recitals contained in this Trust Agreement and the
Securities shall be taken as the statements of the Trust, and the Trustees and
the Administrators do not assume any responsibility for their correctness. The
Trustees make no representations as to the value or condition of the Trust
Property or any part thereof. The Trustees make no representations as to the
validity or sufficiency of this Trust Agreement or the Securities.
SECTION 3.14 Duration of Trust.
The Trust, unless dissolved pursuant to the provisions of
Article VIII hereof, shall have existence up to September 30, 2029.
SECTION 3.15 Mergers.
(a) The Trust may not merge with or into, consolidate,
amalgamate, or be replaced by, or convey, transfer or lease its
properties and assets as an entirety or substantially as an entirety
to any Person, except as described in Section 3.15(b) and (c) and
except with respect to the distribution of Debentures to Holders
pursuant to Section 8.1(a)(iii) of this Trust Agreement or Section 3
of Annex I.
(b) The Trust may, at the request of the Sponsor, with
the consent of the Holders of a Majority in Liquidation Amount of the
Capital Securities and without the consent of the Delaware Trustee or
the Property Trustee, merge with or into, consolidate, amalgamate, or
be replaced by, or convey, transfer or lease its properties and assets
as an entirety or substantially as an entirety to, a trust organized
as such under the laws of any State; provided that:
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(i) such successor entity (the "Successor Entity")
either:
(A) expressly assumes all of the obligations of the Trust
under the Securities; or
(B) substitutes for the Securities other securities
having substantially the same terms as the Securities (the
"Successor Securities") so long as the Successor Securities
rank the same as the Securities rank in priority with respect
to Distributions and payments upon liquidation, redemption and
otherwise;
(ii) the Sponsor expressly appoints a trustee of the
Successor Entity that possesses the same powers and duties as the
Property Trustee with respect to the Debentures;
(iii) the Successor Securities (excluding any securities
substituted for the Common Securities) are listed, quoted or included
for trading, or any Successor Securities will be listed, quoted or
included for trading upon notification of issuance, on any national
securities exchange or with any other organization on which the
Capital Securities are then listed, quoted or included;
(iv) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not cause the Capital
Securities (including any Successor Securities) or the Debentures to
be downgraded by any nationally recognized statistical rating
organization that publishes a rating on the Capital Securities or the
Debentures;
(v) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not adversely affect
the rights, preferences and privileges of the Holders (including the
holders of any Successor Securities) in any material respect (other
than with respect to any dilution of the interests of such Holders or
holders, as the case may be, in the Successor Entity);
(vi) the Successor Entity has a purpose substantially
identical to that of the Trust;
(vii) prior to such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, the Sponsor has received
an opinion of independent counsel to the Trust experienced in such
matters to the effect that:
(A) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and
privileges of the Holders (including the holders of
any Successor Securities) in any material respect
(other than with
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respect to any dilution of the interests of such
Holders or holders, as the case may be, in the
Successor Entity);
(B) following such merger, consolidation,
amalgamation, replacement, conveyance, transfer or
lease, neither the Trust nor the Successor Entity
will be required to register as an Investment
Company; and
(viii) the Sponsor or any permitted successor or
assignee owns all of the common securities of the Successor
Entity and guarantees the obligations of the Successor Entity
under the Successor Securities at least to the extent provided
by the Securities Guarantees.
(c) Notwithstanding Section 3.15(b), the Trust shall not,
except with the consent of Holders of 100% in aggregate liquidation
amount of the Securities, consolidate, amalgamate, merge with or into,
or be replaced by, or convey, transfer or lease its properties and
assets as an entirety or substantially as an entirety to, any other
Person or permit any other Person to consolidate, amalgamate, merge
with or into, or replace it if such consolidation, amalgamation,
merger, replacement, conveyance, transfer or lease would cause the
Trust or the Successor Entity not to be classified as a grantor trust
for United States federal income tax purposes.
ARTICLE IV
SPONSOR
SECTION 4.1 Sponsor's Purchase of Common Securities.
At the Closing Time, pursuant to the Common Securities
Subscription Agreement, the Sponsor will purchase all of the Common Securities
then issued by the Trust, in an amount equal to 4% of the liquidation amount of
the Series A Capital Securities issued and sold.
SECTION 4.2 Responsibilities of the Sponsor.
In connection with the issue and sale of the Capital
Securities, the Sponsor shall have the exclusive right and responsibility to
engage in the following activities:
(a) to prepare the Offering Memorandum, in preliminary
and final form, and to prepare for filing by the Trust with the
Commission and execute any Registration Statement, including any
amendments thereto, as contemplated by the Registration Rights
Agreement;
(b) to determine the States in which to take appropriate
action to qualify or register for sale all or part of the Capital
Securities and to do any and all such acts, other than actions which
must be taken by the Trust, and advise the Trust of actions it must
take, and prepare for execution and filing and execute any
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documents to be executed and filed by the Trust, as the Sponsor deems
necessary or advisable in order to comply with the applicable laws of
any such States;
(c) to prepare for filing by the Trust with the
Commission a registration statement on Form 8-A, including any
amendments thereto, relating to the registration of the Capital
Securities under Section 12(b) or 12(g) of the Exchange Act, as the
case may be, including any amendments thereto; and
(d) to negotiate the terms of, execute, enter into and
deliver the Purchase Agreement and the Registration Rights Agreement.
(e) to give the Sponsor and the Property Trustee prompt
written notice of the occurrence of a Special Event;
(f) to establish a record date with respect to all
actions to be taken hereunder that require a record date to be
established, including and with respect to, for the purposes of
Section 316(c) of the Trust Indenture Act, Distributions, voting
rights, redemptions and exchanges, and to issue relevant notices to
the Holders with respect to such actions and applicable record dates.
SECTION 4.3 Right to Proceed.
The Sponsor acknowledges the rights of the Holders of Capital
Securities, in the event that a failure of the Trust to pay Distributions on
the Capital Securities is attributable to the failure of the Debenture Issuer
to pay the principal of or interest on the Debentures, to institute a
proceeding directly against the Debenture Issuer for enforcement of its payment
obligations in respect of the Debentures.
SECTION 4.4 Right to Dissolve Trust.
The Sponsor will have the right at any time to dissolve the
Trust and, after satisfaction of liabilities to creditors of the Trust as
required by applicable law, to cause the Debentures to be distributed to the
Holders in liquidation of the Trust. Such right is subject to the Sponsor's
having received all required regulatory approvals.
ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees; Appointment of Co-Trustee.
The number of Trustees initially shall be two (2), and:
(a) at any time before the issuance of any Securities,
the Sponsor may, by written instrument, increase or decrease the
number of Trustees; and
(b) after the issuance of any Securities, the number of
Trustees may be increased or decreased by vote of the Holders of a
Majority in Liquidation
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Amount of the Common Securities voting as a class at a meeting of the
Holders of the Common Securities;
provided, however, that, the number of Trustees shall in no event be less than
two (2); provided further that (1) one Trustee, in the case of a natural
person, shall be a person who is a resident of the State of Delaware or that,
if not a natural person, is an entity which has its principal place of business
in the State of Delaware (the "Delaware Trustee"); and (2) one Trustee shall be
the Property Trustee for so long as this Trust Agreement is required to qualify
as an indenture under the Trust Indenture Act, and such Trustee may also serve
as Delaware Trustee if it meets the applicable requirements in which event the
number of Trustees shall be one (1). Notwithstanding the above, 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 one or more Persons
either to act as a co-trustee, jointly with the Property Trustee, of all or any
part of the Trust Property, or 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 such capacity any
property, title, right or power deemed necessary or desirable, subject to the
provisions of this Trust Agreement.
SECTION 5.2 Delaware Trustee.
For so long as required by the Business Trust Act, the
Delaware Trustee shall be:
(a) a natural person who is a resident of the State of
Delaware; or
(b) if not a natural person, an entity which has its
principal place of business in the State of Delaware, and otherwise
meets the requirements of applicable law,
provided, however, that, if the Property Trustee has its principal place of
business in the State of Delaware and otherwise meets the requirements of
applicable law, then the Property Trustee shall also be the Delaware Trustee
and Section 3.11 shall have no application.
The initial Delaware Trustee shall be:
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attn.: Corporate Trust Administration
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
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SECTION 5.3 Property Trustee; Eligibility.
(a) There shall at all times be one Trustee (the
"Property Trustee") which shall act as Property Trustee and which
shall:
(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation organized and doing business
under the laws of the United States of America or any State or
Territory thereof or of the District of Columbia, or a
corporation or Person permitted by the Commission to act as an
indenture trustee under the Trust Indenture Act, authorized
under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least 50 million U.S.
dollars ($50,000,000), and subject to supervision or
examination by federal, state, territorial or District of
Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the
requirements of the supervising or examining authority
referred to above, then for the purposes of this Section
5.3(a)(ii), the combined capital and surplus of such
corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Property Trustee shall cease to be
eligible to so act under Section 5.3(a), the Property Trustee shall
immediately resign in the manner and with the effect set forth in
Section 5.6(c).
(c) If the Property Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 330(b) of the
Trust Indenture Act, the Property Trustee and the Holder of the Common
Securities (as if it were the obligor referred to in Section 310(b) of
the Trust Indenture Act) shall in all respects comply with the
provisions of Section 310(b) of the Trust Indenture Act.
(d) The Capital Securities Guarantee shall be deemed to
be specifically described in this Trust Agreement for purposes of
clause (i) of the first proviso contained in Section 310 (b) of the
Trust Indenture Act.
(e) The initial Property Trustee shall be:
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attn.: Corporate Trust Administration
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
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SECTION 5.4 Certain Qualifications of Administrators and Delaware Trustee
Generally.
Each Administrator and the Delaware Trustee (unless the
Property Trustee also acts as Delaware Trustee) shall be either a natural
person who is at least 21 years of age or a legal entity that shall act through
one or more Authorized Officers.
SECTION 5.5 Administrators.
The initial Administrators shall be:
Xxxxxx X. Brass
Xxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
c/o CNB Financial Corp.
00 Xxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
(a) Except as expressly set forth in this Trust Agreement
and except if a meeting of the Administrators is called with respect
to any matter over which the Administrators have power to act, any
power of the Administrators may be exercised by, or with the consent
of, any one such Administrator.
(b) Unless otherwise required by the applicable law, any
Administrator acting alone is authorized to execute on behalf of the
Trust any documents which the Administrators have the power and
authority to cause the Trust to execute pursuant to Section 3.6.
(c) An 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 purposes of signing any documents which
the Administrators have power and authority to cause the Trust to
execute pursuant to Section 3.6.
SECTION 5.6 Appointment, Removal and Resignation of Trustees.
(a) Subject to Section 5.6(b) hereof and to Section 6(b)
of Annex I hereto, Trustees may be appointed or removed without cause
at any time:
(i) until the issuance of any Securities, by
written instrument executed by the Sponsor;
(ii) unless an Event of Default shall have
occurred and be continuing after the issuance of any
Securities, for cause by vote of the Holders of a Majority in
Liquidation Amount of the Capital Securities voting as a class
at a meeting of the Holders of the Capital Securities; and
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(iii) if an Event of Default shall have occurred
and be continuing after the issuance of the Securities, with
or without cause, by vote of Holders of a Majority in
Liquidation Amount of the Capital Securities voting as a class
at a meeting of Holders of the Capital Securities.
(b) (i) The Trustee that acts as Property Trustee
shall not be removed in accordance with Section 5.6(a) until a
Successor Property Trustee has been appointed and has accepted such
appointment by written instrument executed by such Successor Property
Trustee and delivered to the removed Property Trustee, the
Administrators and the Sponsor; and
(ii) the Trustee that acts as Delaware Trustee
shall not be removed in accordance with this Section 5.6(a) until a successor
Trustee possessing the qualifications to act as Delaware Trustee under Sections
5.2 and 5.4 (a "Successor Delaware Trustee") has been appointed and has
accepted such appointment by written instrument executed by such Successor
Delaware Trustee and delivered to the removed Delaware Trustee, the Property
Trustee (if the removed Delaware Trustee is not also the Property Trustee), the
Administrators and the Sponsor.
(c) A Trustee appointed to office shall hold office until
his successor shall have been appointed or until his death, removal or
resignation. Any Trustee may resign from office (without need for
prior or subsequent accounting) by an instrument in writing signed by
the Trustee and delivered to the other Trustees, the Sponsor and the
Trust, which resignation shall take effect upon such delivery or upon
such later date as is specified therein; provided, however, that:
(i) No such resignation of the Trustee that acts as the
Property Trustee shall be effective:
(A) until a Successor Property Trustee has been appointed
and has accepted such appointment by instrument executed by
such Successor Property Trustee and delivered to the Trust,
the Sponsor, the Delaware Trustee (if the resigning Property
Trustee is not also the Delaware Trustee) and the resigning
Property Trustee; or
(B) until the assets of the Trust have been completely
liquidated and the proceeds thereof distributed to the
Holders; and
(ii) no such resignation of the Trustee that acts as the
Delaware Trustee shall be effective until a Successor Delaware Trustee
has been appointed and has accepted such appointment by instrument
executed by such Successor Delaware Trustee and delivered to the
Trust, the Property Trustee (if the resigning Delaware Trustee is not
also the Property Trustee), the Sponsor and the resigning Delaware
Trustee.
(d) The Holders of the Common Securities or, if an Event
of Default shall have occurred and be continuing after the issuance of
the Securities, the
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Holders of the Capital Securities shall use their best efforts to
promptly appoint a Successor Property Trustee or Successor Delaware
Trustee, as the case may be, if the Property Trustee or the Delaware
Trustee delivers an instrument of resignation in accordance with this
Section 5.6.
(e) If no Successor Property Trustee or Successor
Delaware Trustee shall have been appointed and accepted appointment as
provided in this Section 5.6 within 60 days after delivery of an
instrument of resignation or removal, the Property Trustee or Delaware
Trustee resigning or being removed, as applicable, may petition any
court of competent jurisdiction for appointment of a Successor
Property Trustee or Successor Delaware Trustee. Such court may
thereupon, after prescribing such notice, if any, as it may deem
proper to prescribe, appoint a Successor Property Trustee or Successor
Delaware Trustee, as the case may be.
(f) No Property Trustee or Delaware Trustee shall be
liable for the acts or omissions to act of any Successor Property
Trustee or Successor Delaware Trustee, as the case may be.
(g) At the time of resignation or removal of the Property
Trustee or the Delaware Trustee, the Sponsor shall pay to such Trustee
any amounts that may be owed to such Trustee pursuant to Section 10.4.
(h) Any successor Delaware Trustee shall file an
amendment to the Certificate of Trust with the Secretary of State of
the State of Delaware identifying the name and principal place of
business of such Successor Delaware Trustee in the State of Delaware.
SECTION 5.7 Vacancies among Trustees.
If a Trustee ceases to hold office for any reason and the
number of Trustees is not reduced pursuant to Section 5.l, or if the number of
Trustees is increased pursuant to Section 5.1, a vacancy shall occur. A
resolution certifying the existence of such vacancy by the Administrators or,
if there are more than two, a majority of the Administrators shall be
conclusive evidence of the existence of such vacancy. The vacancy shall be
filled with a Trustee appointed in accordance with Section 5.6.
SECTION 5.8 Effect of Vacancies.
The death, resignation, retirement, removal, bankruptcy,
dissolution, liquidation, incompetence or incapacity to perform the duties of a
Trustee shall not operate to dissolve, liquidate or annul the Trust or to
terminate this Trust Agreement. Whenever a vacancy in the number of
Administrators shall occur, until such vacancy is filled by the appointment of
an Administrator in accordance with Section 5.6, the Administrators in office,
regardless of their number, shall have all the powers granted to the
Administrators and shall discharge all the duties imposed upon the
Administrators by this Trust Agreement.
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SECTION 5.9 Meetings.
If there is more than one Administrator, meetings of the
Administrators shall be held from time to time upon the call of any
Administrator. Regular meetings of the Administrators may be held at a time and
place fixed by resolution of the Administrators. Notice of any in-person
meetings of the Administrators shall be hand delivered or otherwise delivered
in writing (including by facsimile, with a hard copy by overnight courier) not
less than 24 hours before such meeting. Notice of any telephonic meetings of
the Administrators or any committee thereof shall be hand delivered or
otherwise delivered in writing (including by facsimile, with a hard copy by
overnight courier) not less than 24 hours before a meeting. Notices shall
contain a brief statement of the time, place and anticipated purposes of the
meeting. The presence (whether in person or by telephone) of an Administrator
at a meeting shall constitute a waiver of notice of such meeting except where
an Administrator attends a meeting for the express purpose of objecting to the
transaction of any activity on the ground that the meeting has not been
lawfully called or convened. Unless provided otherwise in this Trust
Agreement, any action of the Administrators may be taken at a meeting by vote
of a majority of the Administrators present (whether in person or by telephone)
and eligible to vote with respect to such matter, provided that, a Quorum is
present, or without a meeting by the unanimous written consent of the
Administrators. In the event there is only one Administrator, any and all
action of such Administrator shall be evidenced by a written consent of such
Administrator.
SECTION 5.10 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 3.6, including any registration
statement or amendment thereto filed with the Commission, or making
any other governmental filing.
(b) The Administrators shall have power to delegate from
time to time to such of their number or to officers of the Trust the
doing of such things and the execution of such instruments either in
the name of the 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 5.11 Merger, Conversion, Consolidation or Succession to Business.
Any Person into which the Property Trustee or the Delaware
Trustee, as the case may be, may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Property Trustee or the Delaware Trustee, as the
case may be, shall be a party, or any Person succeeding to all or substantially
all the corporate trust business of the Property Trustee or the Delaware
Trustee, as the case may be, shall be the successor of the Property Trustee or
the Delaware Trustee, as the case may be, hereunder, without the execution or
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filing of any paper or any further act on the part of any of the parties
hereto, provided such Person shall be otherwise qualified and eligible under
this Article and provided further that such Person shall file an amendment to
the Certificate of Trust with the Delaware Secretary of State as contemplated
in Section 5.6(h).
SECTION 5.12 Appointment of Administrators.
(a) The Administrators shall be appointed by the Holders
of a Majority in Liquidation Amount of the Common Securities and may
be removed by the Holders of a Majority in Liquidation Amount of the
Common Securities or may resign at any time. Upon any resignation or
removal, the Sponsor shall appoint a successor Administrator. Each
Administrator shall execute this Trust Agreement thereby agreeing to
comply with, and be legally bound by, all of the terms, conditions and
provisions of this Trust Agreement. 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 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 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 filed by the remaining Administrators, if there were
at least two of them prior to such vacancy, and by the Sponsor, 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 as the case may be, set
forth in Section 5.4).
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 VI
DISTRIBUTIONS
SECTION 6.1 Distributions.
Holders shall receive Distributions in accordance with the
applicable terms of the relevant Holder's Securities. If and to the extent that
the Debenture Issuer
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makes a payment of interest (including Compounded Interest and Additional Sums)
and/or principal on the Debentures held by the Property Trustee or Liquidated
Damages or any other payments pursuant to the Registration Rights Agreement
with respect to the Debentures held by the Property Trustee (the amount of any
such payment being a "Payment Amount"), the Property Trustee shall and is
directed, to the extent funds are available for that purpose, to make a
distribution (a "Distribution") of the Payment Amount to Holders in accordance
with the terms of the Securities.
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities.
(a) The Administrators shall, on behalf of the Trust,
issue one class of capital securities representing undivided preferred
beneficial interests in the assets of the Trust having such terms as
are set forth in Annex I (the "Series A Capital Securities") and one
class of common securities representing common undivided beneficial
interests in the assets of the Trust having such terms as are set
forth in Annex I (the "Common Securities"). The Administrators shall,
on behalf of the Trust, issue one class of capital securities
representing undivided preferred beneficial interests in the Trust
having such terms as set forth in Annex I (the "Series B Capital
Securities") in exchange for the Series A Capital Securities accepted
for exchange in the Exchange Offer, which Series B Capital Securities
shall not bear the legends required by Section 9.2(i) unless the
Holder of such Series A Capital Securities is either (A) a
broker-dealer who purchased such Series A Capital Securities directly
from the Trust for resale pursuant to Rule 144A or any other available
exemption under the Securities Act, (B) a Person participating in the
distribution of the Series A Capital Securities or (C) a Person who is
an Affiliate of the Sponsor or the Trust. The Trust shall issue no
securities or other interests in the assets of the Trust other than
the Capital Securities and the Common Securities.
(b) The consideration received by the Trust for the
issuance of the Securities shall constitute a contribution to the
capital of the Trust and shall not constitute a loan to the Trust.
(c) Upon issuance of the Securities as provided in this
Trust Agreement, the Securities so issued shall be deemed to be
validly issued, fully paid and nonassessable.
(d) Every Person, by virtue of having become a Holder or
a Capital Security Beneficial Owner in accordance with the terms of
this Trust Agreement, shall be deemed to have expressly assented and
agreed to the terms of, and shall be bound by, this Trust Agreement.
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(e) The Administrators shall execute and deliver the
Common Securities Subscription Agreement, letters, documents, or
instruments with DTC and other Clearing Agencies relating to the
Capital Securities.
(f) The Administrators shall execute, enter into and
deliver the Debenture Subscription Agreement, to acquire the Series A
Debentures with the proceeds of the sale of the Series A Capital
Securities and the Common Securities and to exchange the Series A
Debentures for a like principal amount of Series B Debentures,
pursuant to the Exchange Offer; provided, however, that the
Administrators shall cause legal title to the Debentures to be held of
record in the name of the Property Trustee for the benefit of the
Holders;
SECTION 7.2 Execution and Authentication.
(a) The Securities shall be signed on behalf of the Trust
by an Administrator. In case any Administrator of the Trust who shall
have signed any of the Securities shall cease to be such Administrator
before the Securities so signed shall be delivered by the Trust, such
Securities nevertheless may be delivered as though the Person who
signed such Securities had not ceased to be such Administrator; and
any Securities may be signed on behalf of the Trust by such persons
who, at the actual date of execution of such Security, shall be the
Administrators of the Trust, although at the date of the execution and
delivery of this Trust Agreement any such person was not an
Administrator.
(b) One Administrator shall sign the Capital Securities
for the Trust by manual or facsimile signature. Unless otherwise
determined by an Administrator on behalf of the Trust, such signature
shall, in the case of Common Securities, be a manual signature.
A Capital Security shall not be valid until authenticated by
the manual signature of an authorized signatory of the Property Trustee. The
signature shall be conclusive evidence that the Capital Security has been
authenticated under this Trust Agreement. A Common Security shall be valid
upon execution by an Administrator without any act of the Property Trustee.
Upon a written order of the Trust signed by one Administrator,
the Property Trustee shall authenticate the Capital Securities for original
issue. The aggregate number of Capital Securities outstanding at any time shall
not exceed the number set forth in Annex I hereto except as provided in Section
7.6.
The Property Trustee may appoint an authenticating agent
acceptable to the Trust to authenticate Capital Securities. An authenticating
agent may authenticate Capital Securities whenever the Property Trustee may do
so. Each reference in this Trust Agreement to authentication by the Property
Trustee includes authentication by such agent. An authenticating agent has the
same rights as the Property Trustee hereunder with respect to the Sponsor or an
Affiliate.
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SECTION 7.3 Form and Dating.
The Capital Securities shall be evidenced by one or more
certificates substantially in the form of Exhibit A-1, and the Common
Securities shall be evidenced by one or more certificates substantially in the
form of Exhibit A-2. The Property Trustee's certificate of authentication shall
be substantially in the form set forth in Exhibit A-1. Certificates
representing the Securities may be printed, lithographed or engraved or may be
produced in any other manner as is reasonably acceptable to an Administrator,
as evidenced by the execution thereof. The Securities may have letters, "CUSIP"
or other numbers, notations or other marks of identification or designation and
such legends or endorsements required by law, stock exchange rule, agreements
to which the Trust is subject, if any, or usage, provided that, any such
notation, legend or endorsement is in a form acceptable to the Administrators,
as evidenced by their execution thereof. The Trust at the direction of the
Sponsor, shall furnish any such legend not contained in Exhibit A-1 to the
Property Trustee in writing. Each Capital Security shall be dated the date of
its authentication. The terms and provisions of the Securities set forth in
Annex I and the forms of Securities set forth in Exhibits A-1 and A-2 are part
of the terms of this Trust Agreement and, to the extent applicable, the
Property Trustee and the Sponsor, by their execution and delivery of this Trust
Agreement, expressly agree to such terms and provisions and to be bound
thereby.
(a) Global Capital Security. Capital Securities offered
and sold to QIBs in reliance on Rule 144A, as provided in the Purchase
Agreement, shall be issued in the form of a single permanent global
Capital Security in definitive, fully registered form without
distribution coupons with the appropriate global legends and
Restricted Securities Legend set forth in Exhibit A-1 hereto (the
"Global Capital Security"), which shall be deposited on behalf of the
purchasers of the Capital Securities represented thereby with the
Property Trustee, at its Corporate Trust Office, as custodian for the
Clearing Agency, and registered in the name of the Clearing Agency or
a nominee of the Clearing Agency, duly executed by the Trust and
authenticated by the Property Trustee as hereinafter provided. The
number of Capital Securities represented by the Global Capital
Security may from time to time be increased or decreased by
adjustments made on the records of the Property Trustee and the
Clearing Agency or its nominee as hereinafter provided.
(b) Book-Entry Provisions. This Section 7.3(b) shall
apply only to the Global Capital Security and such other Capital
Securities in global form as may be authorized by the Trust to be
deposited with or on behalf of the Clearing Agency.
An Administrator shall execute and the Property Trustee shall,
in accordance with this Section 7.3, authenticate and make available for
delivery initially a single Global Capital Security that (i) shall be
registered in the name of Cede & Co. or other nominee of such Clearing Agency,
and (ii) shall be delivered by the Property Trustee to such Clearing Agency or
pursuant to such Clearing Agency's written
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instructions or, if no such written instructions are received by the Property
Trustee, held by the Property Trustee as custodian for the Clearing Agency.
Members of, or participants in, the Clearing Agency
("Participants") shall have no rights under this Trust Agreement with respect
to the Global Capital Security held on their behalf by the Clearing Agency or
by the Property Trustee as the custodian of the Clearing Agency or under such
Global Capital Security, and the Clearing Agency may be treated by the Trust,
the Property Trustee and any agent of the Trust or the Property Trustee as the
absolute owner of such Global Capital Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Trust, the
Property Trustee or any agent of the Trust or the Property Trustee from giving
effect to any written certification, proxy or other authorization furnished by
the Clearing Agency or impair, as between the Clearing Agency and its
Participants, the operation of customary practices of such Clearing Agency
governing the exercise of the rights of a holder of a beneficial interest in
the Global Capital Security.
(c) Definitive Capital Securities. Except as provided in
Section 7.9 or 9.2(f)(i), owners of beneficial interests in the Global
Capital Security will not be entitled to receive physical delivery of
certificated Capital Securities ("Definitive Capital Securities").
Purchasers of Securities who are "accredited investors" (as defined in
Rule 501(a)(1), (2), (3) or (7) under the Securities Act) and who are
not QIBs will receive Capital Securities in the form of individual
certificates in definitive, fully registered form without distribution
coupons and with the Restricted Securities Legend set forth in Exhibit
A-1 hereto ("Restricted Definitive Capital Securities"); provided,
however, that upon registration of transfer of such Restricted
Definitive Capital Securities to a QIB, such Restricted Definitive
Capital Securities will, unless the Global Capital Security has
previously been exchanged, be exchanged for an interest in the Global
Capital Security pursuant to the provisions of Section 9.2.
Restricted Definitive Capital Securities will bear the Restricted
Securities Legend set forth on Exhibit A-1 unless removed in
accordance with this Section 7.3 or Section 9.2.
SECTION 7.4 Registrar, Paying Agent and Exchange Agent.
The Trust shall maintain in Wilmington, Delaware (i) an office
or agency where Capital Securities may be presented for registration of
transfer ("Registrar"), (ii) an office or agency where Capital Securities may
be presented for payment ("Paying Agent") and (iii) an office or agency where
Securities may be presented for exchange ("Exchange Agent"). The Registrar
shall keep a register of the Capital Securities and of their transfer. The
Property Trustee may appoint the Registrar, the Paying Agent and the Exchange
Agent and may appoint one or more co-registrars, one or more additional paying
agents and one or more additional Exchange Agents in such other locations as it
shall determine, in each case reasonably acceptable to the Administrators. The
term "Registrar" includes any additional registrar, the term "Paying Agent"
includes any additional paying agent and the term "Exchange Agent" includes any
additional Exchange Agent. The Property Trustee may change any Paying Agent,
Registrar, co-registrar or Exchange Agent without prior notice to any Holder.
The Paying
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Agent shall be permitted to resign as Paying Agent upon 30 days' written notice
to the Property Trustee, the Administrators and the Sponsor. The Property
Trustee shall notify the Trust of the name and address of any Agent not a party
to this Trust Agreement. If the Property Trustee fails to appoint or maintain
another entity as Registrar, Paying Agent or Exchange Agent, the Property
Trustee shall act as such. The Trust or any of its Affiliates may act as Paying
Agent, Registrar, or Exchange Agent. The Trust shall act as Paying Agent,
Registrar and Exchange Agent for the Common Securities.
The Property Trustee initially appoints the Property Trustee
as Registrar, Paying Agent, Exchange Agent and Calculation Agent for the
Capital Securities.
The Calculation Agent shall determine the Coupon Rate (as
defined in Annex I hereto) in accordance with the terms of the Securities.
SECTION 7.5 Paying Agent to Hold Money in Trust.
The Trust shall require each Paying Agent other than the
Property Trustee to agree in writing that the Paying Agent will hold in trust
for the benefit of Holders or the Property Trustee all money held by the Paying
Agent for the payment of liquidation amounts or Distributions, and will notify
the Property Trustee if there are insufficient funds for such purpose. While
any such insufficiency continues, the Property Trustee may require a Paying
Agent to pay all money held by it to the Property Trustee. The Trust at any
time may require a Paying Agent to pay all money held by it to the Property
Trustee and to account for any money disbursed by it. Upon payment over to the
Property Trustee, the Paying Agent (if other than the Trust or an Affiliate of
the Trust) shall have no further liability for the money. If the Trust or the
Sponsor or an Affiliate of the Trust or the Sponsor acts as Paying Agent, it
shall segregate and hold in a separate trust fund for the benefit of the
Holders all money held by it as Paying Agent.
SECTION 7.6 Replacement Securities.
If a Holder claims that a Security owned by it has been lost,
destroyed or wrongfully taken or if such Security is mutilated and is
surrendered to the Trust or in the case of the Capital Securities to the
Property Trustee, an Administrator shall execute and the Property Trustee shall
authenticate and make available for delivery a replacement Security if the
Property Trustee's requirements are met. An indemnity bond must be provided by
the Holder which, in the judgment of the Property Trustee, is sufficient to
protect the Trustees, the Sponsor, the Trust or any authenticating agent from
any loss which any of them may suffer if a Security is replaced. The Trust may
charge such Holder for its expenses in replacing a Security and the
Administrators or the Registrar may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
therewith.
SECTION 7.7 Outstanding Capital Securities.
The Capital Securities outstanding at any time are all the
Capital Securities authenticated by the Property Trustee except for those
cancelled by it, those delivered to it for cancellation, and those described in
this Section as not outstanding.
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If a Capital Security is replaced, paid or purchased pursuant
to Section 7.6 hereof, it ceases to be outstanding unless the Property Trustee
receives proof satisfactory to it that the replaced, paid or purchased Capital
Security is held by a bona fide purchaser.
If Capital Securities are considered paid in accordance with
the terms of this Trust Agreement, they cease to be outstanding and
Distributions on them shall cease to accumulate.
A Capital Security does not cease to be outstanding because
one of the Trust, the Sponsor or an Affiliate of the Sponsor holds the
Security.
SECTION 7.8 Capital Securities in Treasury.
In determining whether the Holders of the required amount of
Securities have concurred in any direction, waiver or consent, Capital
Securities owned by the Trust, the Sponsor or an Affiliate of the Sponsor, as
the case may be, shall be disregarded and deemed not to be outstanding, except
that for the purposes of determining whether the Property Trustee shall be
fully protected in relying on any such direction, waiver or consent, only
Securities which the Property Trustee actually knows are so owned shall be so
disregarded.
SECTION 7.9 Temporary Securities.
(a) Until Definitive Capital Securities are ready for
delivery, the Trust may prepare and, in the case of the Capital
Securities, the Property Trustee shall authenticate temporary
Securities. Temporary Securities shall be substantially in the form of
Definitive Capital Securities but may have variations that the Trust
considers appropriate for temporary Securities. Without unreasonable
delay, the Trust shall prepare and, in the case of the Capital
Securities, the Property Trustee shall authenticate Definitive Capital
Securities in exchange for temporary Securities.
(b) The Global Capital Security deposited with the
Clearing Agency or with the Property Trustee as custodian for the
Clearing Agency pursuant to Section 7.3 shall be transferred to the
beneficial owners thereof in the form of Definitive Capital Securities
only if such transfer complies with Section 9.2 and (i) the Clearing
Agency notifies the Sponsor that it is unwilling or unable to continue
as Clearing Agency for such Global Capital Security or if at any time
such Clearing Agency ceases to be a "clearing agency" registered under
the Exchange Act, and, in each case, a clearing agency is not
appointed by the Sponsor within 90 days of receipt of such notice or
of becoming aware of such condition, (ii) a Default or an Event of
Default has occurred and is continuing, or (iii) the Trust at its sole
discretion elects to cause the issuance of Definitive Capital
Securities.
(c) Any Global Capital Security that is transferable to
the beneficial owners thereof in the form of Definitive Capital
Securities pursuant to this
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Section 7.9 shall be surrendered by the Clearing Agency to the
Property Trustee to be so transferred, in whole or from time to time
in part, without charge, and the Property Trustee shall authenticate
and make available for delivery, upon such transfer of each portion of
such Global Capital Security, an equal aggregate liquidation amount of
Capital Securities of authorized denominations in the form of
Definitive Capital Securities. Any portion of the Global Capital
Security transferred pursuant to this Section shall be registered in
such names as the Clearing Agency shall direct. Any Definitive Capital
Security delivered in exchange for an interest in the Restricted
Global Capital Security shall, except as otherwise provided by
Sections 7.3 and 9.1, bear the Restricted Securities Legend set forth
in Exhibit A-l hereto.
(d) Subject to the provisions of Section 7.9(c), the
Holder of the Global Capital Security may grant proxies and otherwise
authorize any Person, including Participants and Persons that may hold
interests through Participants, to take any action which such Holder
is entitled to take under this Trust Agreement or the Securities.
(e) In the event of the occurrence of any of the events
specified in Section 7.9(b), the Trust will promptly make available to
the Property Trustee a reasonable supply of certificated Capital
Securities in fully registered form without distribution coupons.
SECTION 7.10 Cancellation.
The Trust at any time may deliver Capital Securities to the
Property Trustee for cancellation. The Registrar, Paying Agent and Exchange
Agent shall forward to the Property Trustee any Capital Securities surrendered
to them for registration of transfer, redemption, exchange or payment. The
Property Trustee shall promptly cancel all Capital Securities surrendered for
registration of transfer, redemption, exchange, payment, replacement or
cancellation and shall dispose of canceled Capital Securities in accordance
with its customary procedures unless the Trust otherwise directs. The Trust may
not issue new Capital Securities to replace Capital Securities that it has paid
or that have been delivered to the Property Trustee for cancellation or that
any Holder has exchanged.
SECTION 7.11 CUSIP Numbers.
The Trust in issuing the Capital Securities may use "CUSIP"
numbers (if then generally in use), and, if so, the Property Trustee shall use
"CUSIP" numbers in notices of redemption as a convenience to Holders of Capital
Securities; provided that, any such notice may state that no representation is
made as to the correctness of such numbers either as printed on the Capital
Securities or as contained in any notice of a redemption and that reliance may
be placed only on the other identification numbers printed on the Capital
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Sponsor will promptly notify the Property Trustee
of any change in the CUSIP numbers.
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ARTICLE VIII
DISSOLUTION OF TRUST
SECTION 8.1 Dissolution of Trust.
(a) The Trust shall dissolve upon the first to occur of
the following:
(i) upon the bankruptcy of the Sponsor;
(ii) upon the filing of a certificate of
dissolution or liquidation or its equivalent with respect to
the Sponsor;
(iii) following the distribution of a Like Amount
of the Debentures to the Holders, provided that, the Property
Trustee has received written notice from the Holders of the
Common Securities directing the Property Trustee to dissolve
the Trust (which direction is optional, and except as
otherwise expressly provided below, within the discretion of
the Holders of the Common Securities), and provided, further,
that such direction and such distribution is conditioned on
the receipt by the Sponsor of any and all required regulatory
approvals;
(iv) upon the entry of a decree of judicial
dissolution of the Trust by a court of competent jurisdiction;
(v) when all of the Securities shall have been
called for redemption and the amounts necessary for redemption
thereof shall have been paid to the Holders in accordance with
the terms of the Securities in connection with the redemption
or repayment of the Debentures; or
(vi) the expiration of the term of the Trust
provided in Section 3.14.
(b) As soon as is practicable upon completion of winding
up of the Trust following the occurrence of an event referred to in
Section 8.1(a), and subject to Section 3808(d) and (e) of the Business
Trust Act, the Property Trustee and the Delaware Trustee (each of whom
is hereby authorized to take such action) shall terminate the Trust by
filing a certificate of cancellation with the Secretary of State of
the State of Delaware in accordance with the Business Trust Act and,
upon such filing, the obligations and responsibilities of the
Administrators and the Trust created and continued hereby shall
terminate.
(c) The provisions of Section 3.9 and Article X shall
survive the dissolution of the Trust.
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ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 Transfer of Securities.
(a) Securities may only be transferred, in whole or in
part, in accordance with the terms and conditions set forth in this
Trust Agreement and in the terms of the Securities. To the fullest
extent permitted by law, any transfer or purported transfer of any
Security not made in accordance with this Trust Agreement shall be
null and void.
(b) For so long as the Securities remain outstanding, the
Sponsor agrees (i) not to transfer ownership of the Common Securities
of the Trust, provided that any permitted successor of the Sponsor
under the Indenture may succeed to the Sponsor's ownership of the
Common Securities or to an Affiliate of the Sponsor in compliance with
applicable law (including the Securities Act and applicable state
securities and blue sky laws).
(c) The Registrar shall provide for the registration of
Capital Securities and of the transfer of Capital Securities, which
will be effected without charge but only upon payment (with such
indemnity as the Registrar may require) in respect of any tax or other
governmental charges that may be imposed in relation to it. Upon
surrender for registration of transfer of any Capital Securities, an
Administrator shall cause one or more new Capital Securities to be
issued in the name of the designated transferee or transferees. Every
Capital Security surrendered for registration of transfer shall be
accompanied by a written instrument of transfer in form satisfactory
to the Registrar duly executed by the Holder or such Holder's attorney
duly authorized in writing. Each Capital Security surrendered for
registration of transfer shall be delivered to the Registrar and
canceled in accordance with Section 7.10. A transferee of a Capital
Security shall be entitled to the rights and subject to the
obligations of a Holder hereunder upon the receipt by such transferee
of a Capital Security. By acceptance of a Capital Security or any
interest therein, each transferee shall be deemed to have agreed to be
bound by this Trust Agreement.
SECTION 9.2 Transfer Procedures and Restrictions.
(a) General. Except as otherwise provided in Section
9.2(b), if Capital Securities are issued upon the transfer, exchange
or replacement of Capital Securities bearing the Restricted Securities
Legend set forth in Exhibit A-1 hereto, or if a request is made to
remove such Restricted Securities Legend on Capital Securities, the
Capital Securities so issued shall bear the Restricted Securities
Legend, or the Restricted Securities Legend shall not be removed, as
the case may be, unless there is delivered to the Trust and the
Property Trustee such satisfactory evidence, which shall include an
Opinion of Counsel, as may be reasonably required by the Trust and the
Property Trustee, that neither the Restricted Securities Legend nor
the restrictions on transfer set forth therein are required to
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ensure that transfers thereof are made pursuant to an exception from
the registration requirements of the Securities Act or, with respect
to Restricted Capital Securities, that such Securities are not
"restricted" within the meaning of Rule 144. Upon provision of such
satisfactory evidence, the Property Trustee, at the written direction
of an Administrator on behalf of the Trust, shall authenticate and
deliver Capital Securities that do not bear the legend.
(b) Transfers After Effectiveness of a Registration
Statement. After the effectiveness of a Registration Statement with
respect to any Capital Securities, all requirements pertaining to
legends on such Capital Securities will cease to apply (other than the
legend requiring that transfers of Capital Securities be made in
blocks having an aggregate liquidation amount of not less than
$100,000 (100 Capital Securities) and multiples of $1,000 in excess
thereof), and beneficial interests in the Global Capital Security
without legends will be available to transferees of such Capital
Securities, upon exchange of the transferring Holder's Restricted
Definitive Capital Security or directions to transfer such Holder's
beneficial interest in the Global Capital Security, as the case may
be. No such transfer or exchange of a Restricted Definitive Capital
Security or of an interest in the Global Capital Security shall be
effective unless the transferor delivers to the Property Trustee a
certificate in a form substantially similar to that attached hereto as
the form of "Assignment" in Exhibit A-1. Except as otherwise provided
in Section 9.2(m), after the effectiveness of a Registration
Statement, an Administrator on behalf of the Trust shall issue and the
Property Trustee, upon a written order of the Trust signed by one
Administrator, shall authenticate a Global Capital Security without
the Restricted Securities Legend (the "Unrestricted Global Capital
Security") to deposit with the Clearing Agency to evidence transfers
of beneficial interests from the (i) Global Capital Security and (ii)
Restricted Definitive Capital Securities.
(c) Transfer and Exchange of Definitive Capital
Securities. When Definitive Capital Securities are presented to the
Registrar or co-registrar:
(x) to register the transfer of such Definitive Capital
Securities; or
(y) to exchange such Definitive Capital Securities which
became mutilated, destroyed, defaced, stolen or lost, for an equal
number of Definitive Capital Securities, the Registrar or co-registrar
shall register the transfer or make the exchange as requested if its
reasonable requirements for such transaction are met;
provided, however, that the Definitive Capital Securities surrendered
for registration of transfer or exchange:
(i) shall be duly endorsed or accompanied by a
written instrument of transfer in form reasonably satisfactory
to the Trust and the Registrar or co- registrar, duly executed
by the Holder thereof or his attorney duly authorized in
writing; and
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(ii) in the case of Definitive Capital Securities
that are Restricted Definitive Capital Securities:
(A) if such Restricted Capital
Securities are being delivered to the
Registrar by a Holder for registration in the
name of such Holder, without transfer,
certification(s) from such Holder to that
effect; or
(B) if such Restricted Capital
Securities are being transferred: (i)
certification(s) in a form substantially
similar to that attached hereto as the form
of "Assignment" in Exhibit A-1, and (ii) if
the Trust or Registrar so requests, evidence
reasonably satisfactory to them as to the
compliance with the restrictions set forth in
the Restricted Securities Legend.
(d) Restrictions on Transfer of a Definitive Capital
Security for a Beneficial Interest in the Global Capital Security. A
Definitive Capital Security may not be exchanged for a beneficial
interest in the Global Capital Security except upon satisfaction of
the requirements set forth below. Upon receipt by the Property Trustee
of a Definitive Capital Security, duly endorsed or accompanied by
appropriate instruments of transfer, in form satisfactory to the
Property Trustee, together with:
(i) if such Definitive Capital Security is a
Restricted Capital Security, certification(s) in a form
substantially similar to that attached hereto as the form of
"Assignment" in Exhibit A-1; and
(ii) whether or not such Definitive Capital
Security is a Restricted Capital Security, written
instructions directing the Property Trustee to make, or to
direct the Clearing Agency to make, an adjustment on its books
and records with respect to the Global Capital Security to
reflect an increase in the number of the Capital Securities
represented by such Global Capital Security,
then the Property Trustee shall cancel such Definitive Capital Security and
cause, or direct the Clearing Agency to cause, the aggregate number of Capital
Securities represented by the Global Capital Security to be increased
accordingly. If the Global Capital Security is not then outstanding, an
Administrator on behalf of the Trust shall issue and the Property Trustee shall
authenticate, upon written order of any Administrator, a new Global Capital
Security representing an appropriate number of Capital Securities.
(e) Transfer and Exchange of the Global Capital Security
Subject to Section 9.2(f), the transfer and exchange of Global Capital
Security or beneficial interests therein shall be effected through the
Clearing Agency in accordance with this Trust Agreement (including
applicable restrictions on transfer set forth herein, if any) and the
procedures of the Clearing Agency therefor.
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(f) Transfer of a Beneficial Interest in the Global
Capital Security for a Definitive Capital Security.
A beneficial interest in the Global Capital Security may be
exchanged for a Security that is not a Global Capital Security only as provided
in Section 7.9.
(g) Restrictions on Transfer and Exchange of the Global
Capital Security. Notwithstanding any other provisions of this Trust
Agreement (other than the provisions set forth in subsection (h) of
this Section 9.2), the Global Capital Security may not be transferred
as a whole except by the Clearing Agency to a nominee of the Clearing
Agency or another nominee of the Clearing Agency or by the Clearing
Agency or any such nominee to a successor Clearing Agency or a nominee
of such successor Clearing Agency.
(h) Authentication of Definitive Capital Securities. If
at any time:
(i) a Default or an Event of Default has occurred
and is continuing,
(ii) the Trust, in its sole discretion, notifies
the Property Trustee in writing that it elects to cause the
issuance of Definitive Capital Securities under this Trust
Agreement, or
(iii) the Clearing Agency notifies the Sponsor that
it is unwilling or unable to continue as Clearing Agency for
such Global Capital Security or if at any time such Clearing
Agency ceases to be a "clearing agency" registered under the
Exchange Act, and, in each case, a clearing agency is not
appointed by the Sponsor within 90 days of receipt of such
notice or of becoming aware of such condition,
then an Administrator on behalf of the Trust will execute, and the Property
Trustee, upon receipt of a written order of the Trust signed by one
Administrator requesting the authentication and delivery of Definitive Capital
Securities to the Persons designated by the Trust, will authenticate and make
available for delivery Definitive Capital Securities, equal in number to the
number of Capital Securities represented by the Global Capital Security, in
exchange for such Global Capital Security.
(i) Legend.
(i) Except as permitted by the following
paragraph (ii), each Capital Security Certificate evidencing
the Global Capital Security and each Definitive Capital
Security (and all Capital Securities issued in exchange
therefor or substitution thereof) shall bear a legend (the
"Restricted Securities Legend") in substantially the following
form:
THIS CAPITAL SECURITY REPRESENTED HEREBY AND ANY JUNIOR
SUBORDINATED DEFERRABLE INTEREST DEBENTURES ISSUABLE IN
CONNECTION THEREWITH HAVE NOT BEEN
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REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR ANY OTHER
APPLICABLE SECURITIES LAW. NEITHER THIS CAPITAL SECURITY NOR
ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS CAPITAL SECURITY BY ITS ACCEPTANCE HEREOF
AGREES TO OFFER, SELL OR OTHERWISE TRANSFER THIS CAPITAL
SECURITY, PRIOR TO THE DATE (THE "RESALE RESTRICTION
TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUANCE DATE HEREOF AND THE LAST DATE ON WHICH CNB
FINANCIAL CORP. (THE "CORPORATION") OR ANY "AFFILIATE" OF THE
CORPORATION WAS THE OWNER OF THIS CAPITAL SECURITY (OR ANY
PREDECESSOR OF THIS CAPITAL SECURITY) ONLY (A) TO THE
CORPORATION, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH
HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) SO
LONG AS THIS CAPITAL SECURITY IS ELIGIBLE FOR RESALE PURSUANT
TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A
PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A) THAT PURCHASES FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER
TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (D) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (A)(1), (2), (3)
OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING
THIS CAPITAL SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT
OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN
CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT OR (E) PURSUANT TO ANY OTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER THE
SECURITIES ACT, SUBJECT TO THE RIGHT OF CNBF CAPITAL TRUST I
(THE "TRUST") AND THE CORPORATION PRIOR TO ANY SUCH OFFER,
SALE OR TRANSFER (i) PURSUANT TO CLAUSE (D) OR (E) TO REQUIRE
THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR
OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (ii)
PURSUANT TO CLAUSE (D) TO REQUIRE THAT THE TRANSFEROR DELIVER
TO THE TRUST A LETTER FROM
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THE TRANSFEREE SUBSTANTIALLY IN THE FORM OF ANNEX A TO THE
OFFERING MEMORANDUM DATED [______], 1999. SUCH HOLDER FURTHER
AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS
CAPITAL SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND.
THE HOLDER OF THIS CAPITAL SECURITY BY ITS ACCEPTANCE HEREOF
ALSO AGREES, REPRESENTS AND WARRANTS THAT: (A) THE PURCHASE
AND HOLDING OF THE CAPITAL SECURITIES IS COVERED BY THE
EXEMPTIVE RELIEF PROVIDED BY PTCE 96-23, 95-60, 91-38, 90-1 OR
84-14 OR ANOTHER APPLICABLE EXEMPTION, (B) CNB AND THE
ADMINISTRATORS ARE NOT "FIDUCIARIES" WITHIN THE MEANING OF
SECTION 3(21) OF ERISA AND THE REGULATIONS THEREUNDER, WITH
RESPECT TO SUCH PERSON'S INTEREST IN THE CAPITAL SECURITIES OR
THE JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURES, AND
(C) IN PURCHASING THE CAPITAL SECURITIES SUCH PERSON APPROVES
THE PURCHASE OF THE JUNIOR SUBORDINATED DEFERRABLE INTEREST
DEBENTURES AND THE APPOINTMENT OF THE PROPERTY TRUSTEE AND THE
DELAWARE TRUSTEE.
THE HOLDER OF THIS CAPITAL SECURITY BY ITS ACCEPTANCE HEREOF
IS DEEMED TO HAVE AGREED TO BE BOUND BY THE PROVISIONS OF A
REGISTRATION RIGHTS AGREEMENT AMONG CNB FINANCIAL CORP., CNBF
CAPITAL TRUST I, AND XXXX, XXXX & CO., INC., DATED , 1999
(THE "REGISTRATION RIGHTS AGREEMENT"). CNB FINANCIAL CORP.
WILL PROVIDE A COPY OF THE REGISTRATION RIGHTS AGREEMENT TO A
HOLDER WITHOUT CHARGE UPON WRITTEN REQUEST TO CNBF CAPITAL
TRUST I AT ITS PRINCIPAL PLACE OF BUSINESS.
In all circumstances, each Capital Security Certificate shall bear the
following legend:
THE CAPITAL SECURITIES WILL BE ISSUED AND MAY BE TRANSFERRED
ONLY IN BLOCKS HAVING A LIQUIDATION AMOUNT OF NOT LESS THAN
$100,000 (100 CAPITAL SECURITIES) AND MULTIPLES OF $1,000 IN
EXCESS THEREOF. ANY ATTEMPTED TRANSFER OF CAPITAL SECURITIES
IN A BLOCK HAVING A LIQUIDATION AMOUNT OF LESS THAN $100,000
(100 CAPITAL SECURITIES) SHALL BE DEEMED TO BE VOID AND OF NO
LEGAL EFFECT WHATSOEVER. ANY SUCH PURPORTED TRANSFEREE SHALL
BE DEEMED NOT TO BE THE HOLDER OF SUCH CAPITAL SECURITIES FOR
ANY PURPOSE, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF
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DISTRIBUTIONS ON SUCH CAPITAL SECURITIES, AND SUCH PURPORTED
TRANSFEREE SHALL BE DEEMED TO HAVE NO INTEREST WHATSOEVER IN
SUCH CAPITAL SECURITIES.
(ii) Upon any sale or transfer of a Restricted
Capital Security (including any Restricted Capital Security
represented by the Global Capital Security) pursuant to an
effective registration statement under the Securities Act or
pursuant to Rule 144:
(A) in the case of any Restricted Capital
Security that is a Definitive Capital Security, the
Registrar shall permit the Holder thereof to exchange
such Restricted Capital Security for a Definitive
Capital Security that does not bear the Restricted
Securities Legend and rescind any restriction on the
transfer of such Restricted Capital Security; and
(B) in the case of any Restricted Capital
Security that is represented by the Global Capital
Security, the Registrar shall permit the Holder of
such Global Capital Security to exchange such Global
Capital Security for another Global Capital Security
that does not bear the Restricted Securities Legend.
(j) Cancellation or Adjustment of Global Capital
Security. At such time as all beneficial interests in the Global
Capital Security have either been exchanged for Definitive Capital
Securities to the extent permitted by this Trust Agreement or
redeemed, repurchased or canceled in accordance with the terms of this
Trust Agreement, such Global Capital Security shall be returned to the
Clearing Agency for cancellation or retained and canceled by the
Property Trustee. At any time prior to such cancellation, if any
beneficial interest in the Global Capital Security is exchanged for
Definitive Capital Securities, Capital Securities represented by such
Global Capital Security shall be reduced and an adjustment shall be
made on the books and records of the Property Trustee and the Clearing
Agency or its nominee to reflect such reduction.
(k) Obligations with Respect to Transfers and Exchanges
of Capital Securities.
(i) To permit registrations of transfers and
exchanges, the Trust shall execute and the Property Trustee
shall authenticate Definitive Capital Securities and the
Global Capital Security at the Registrar's or co-registrar's
request in accordance with the terms of this Trust Agreement.
(ii) Registrations of transfers or exchanges will
be effected without charge, but only upon payment (with such
indemnity as the Trust or the Sponsor may require) in respect
of any tax or other governmental charge that may be imposed in
relation to it.
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(iii) The Registrar or co-registrar shall not be
required to register the transfer of or exchange of (A)
Capital Securities during a period beginning at the opening of
business 15 days before the day of mailing of a notice of
redemption or any notice of selection of Capital Securities
for redemption and ending at the close of business on the day
of such mailing or (B) any Capital Security so selected for
redemption in whole or in part, except the unredeemed portion
of any Capital Security being redeemed in part.
(iv) Prior to the due presentation for
registration of transfer of any Capital Security, the Trust,
the Property Trustee, the Paying Agent, the Registrar or any
co-registrar may deem and treat the Person in whose name a
Capital Security is registered as the absolute owner of such
Capital Security for the purpose of receiving Distributions on
such Capital Security and for all other purposes whatsoever,
and none of the Trust, the Property Trustee, the Paying Agent,
the Registrar or any co-registrar shall be affected by notice
to the contrary.
(v) All Capital Securities issued upon any
registration of transfer or exchange pursuant to the terms of
this Trust Agreement shall evidence the same security and
shall be entitled to the same benefits under this Trust
Agreement as the Capital Securities surrendered upon such
registration of transfer or exchange.
(l) No Obligation of the Property Trustee.
(i) The Property Trustee shall have no
responsibility or obligation to any Capital Security
Beneficial Owner, a Participant in the Clearing Agency or
other Person with respect to the accuracy of the records of
the Clearing Agency or its nominee or of any Participant
thereof, with respect to any ownership interest in the Capital
Securities or with respect to the delivery to any Participant,
beneficial owner or other Person (other than the Clearing
Agency) of any notice (including any notice of redemption) or
the payment of any amount, under or with respect to such
Capital Securities. All notices and communications to be given
to the Holders and all payments to be made to Holders under
the Capital Securities shall be given or made only to or upon
the order of the registered Holders (which shall be the
Clearing Agency or its nominee in the case of the Global
Capital Security). The rights of Capital Security Beneficial
Owners shall be exercised only through the Clearing Agency
subject to the applicable rules and procedures of the Clearing
Agency. The Property Trustee may conclusively rely and shall
be fully protected in relying upon information furnished by
the Clearing Agency or any agent thereof with respect to its
Participants and any Capital Security Beneficial Owners.
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(ii) The Property Trustee and the Registrar shall
have no obligation or duty to monitor, determine or inquire as
to compliance with any restrictions on transfer imposed under
this Trust Agreement or under applicable law with respect to
any transfer of any interest in any Capital Security
(including any transfers between or among Clearing Agency
Participants or Capital Security Beneficial Owners) other than
to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to
do so if and when expressly required by, the terms of this
Trust Agreement, and to examine the same to determine
substantial compliance as to form with the express
requirements hereof.
(m) Exchange of Series A Capital Securities for Series B
Capital Securities. The Series A Capital Securities shall be exchanged
for Series B Capital Securities pursuant to the terms of the Exchange
Offer if the following conditions are satisfied:
(i) The Sponsor shall present the Property
Trustee with an Officers' Certificate certifying the
following:
(A) upon issuance of the Series B Capital
Securities, the transactions contemplated by the
Exchange Offer have been consummated; and
(B) the number of Series A Capital Securities
properly tendered in the Exchange Offer that are
represented by the Global Capital Security and the
number of Series A Capital Securities properly
tendered in the Exchange Offer that are represented
by Definitive Capital Securities, the name of each
Holder of such Definitive Capital Securities, the
liquidation amount of Capital Securities properly
tendered in the Exchange Offer by each such Holder
and the name and address to which Definitive Capital
Securities for Series B Capital Securities shall be
registered and sent for each such Holder.
(ii) The Property Trustee, upon receipt of (i)
such Officers' Certificate, (ii) an Opinion of Counsel to the
effect that the Series B Capital Securities and the Series B
Capital Securities Guarantee have been registered under
Section 5 of the Securities Act and that this Trust Agreement
and the Series B Capital Securities Guarantee have been
qualified under the Trust Indenture Act and (y) with respect
to the matters set forth in Section 3(q) of the Registration
Rights Agreement, shall authenticate (A) the Global Capital
Security, executed and delivered by the Trust to the Property
Trustee, for Series B Capital Securities in aggregate
liquidation amount equal to the aggregate liquidation amount
of Series A Capital Securities represented by the Global
Capital Security indicated in such Officers' Certificate as
having been properly tendered
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and (B) Definitive Capital Securities, executed and delivered
by the Trust to the Property Trustee, representing Series B
Capital Securities registered in the names and in the
liquidation amounts indicated in such Officers' Certificate.
If, upon consummation of the Exchange Offer, less than all the
outstanding Series A Capital Securities shall have been properly tendered and
not withdrawn, the Property Trustee shall make an endorsement on the Global
Capital Security for Series A Capital Securities indicating the reduction in
the number and aggregate liquidation amount represented thereby as a result of
the Exchange Offer.
The Trust shall deliver such authenticated Definitive Capital
Securities for Series B Capital Securities to the Holders thereof as indicated
in such Officers' Certificate.
(n) Minimum Transfers. Series A Capital Securities and,
if and when issued, Series B Capital Securities may only be
transferred in minimum blocks of $100,000 aggregate liquidation amount
(100 Capital Securities) and multiples of $1,000 in excess thereof.
Any attempted transfer of Series A Capital Securities or Series B
Capital Securities in a block having an aggregate liquidation amount
of less than $100,000 shall be deemed to be voided and of no legal
effect whatsoever. Any such purported transferee shall be deemed not
to be a Holder of such Series A Capital Securities or Series B Capital
Securities for any purpose, including, but not limited to, the receipt
of Distributions on such Capital Securities, and such purported
transferee shall be deemed to have no interest whatsoever in such
Capital Securities.
SECTION 9.3 Deemed Security Holders.
The Trustees may treat the Person in whose name any Security
shall be registered on the books and records of the Trust as the sole owner and
Holder of such Security for purposes of receiving Distributions and for all
other purposes whatsoever and, accordingly, shall not be bound to recognize any
equitable or other claim to or interest in such Security on the part of any
Person, whether or not the Trust shall have actual or other notice thereof.
SECTION 9.4 Book-Entry Interests.
The Global Capital Security shall initially be registered on
the books and records of the Trust in the name of Cede & Co., the nominee of
the Clearing Agency, and no Capital Security Beneficial Owner will receive
physical delivery of a definitive Capital Security certificate (a "Capital
Security Certificate") representing such Capital Security Beneficial Owner's
interests in such Global Capital Security, except as provided in Section 9.2
and Section 7.9. Unless and until Definitive Capital Securities have been
issued to the Capital Security Beneficial Owners pursuant to Section 9.2 or
Section 7.9:
(a) the provisions of this Section 9.4 shall be in full
force and effect;
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(b) the Trust and the Trustees shall be entitled to deal
with the Clearing Agency for all purposes of this Trust Agreement
(including the payment of Distributions on the Global Capital Security
and receiving approvals, votes or consents hereunder) as the sole
Holder of the Global Capital Security and shall have no obligation to
the Capital Security Beneficial Owners;
(c) to the extent that the provisions of this Section 9.4
conflict with any other provisions of this Trust Agreement, the
provisions of this Section 9.4 shall control; and
(d) the rights of the Capital Security Beneficial Owners
shall be exercised only through the Clearing Agency and shall be
limited to those established by law and agreements between such
Capital Security Beneficial Owners and the Clearing Agency and/or the
Clearing Agency Participants, and the Clearing Agency shall receive
and transmit payments of Distributions on the Global Capital Security
to such Clearing Agency Participants; provided, however, that solely
for the purposes of determining whether the Holders of the requisite
amount of Capital Securities have voted on any matter provided for in
this Trust Agreement, the Trustees, with respect to the Global Capital
Security, may conclusively rely on, and shall be protected in relying
on, any written instrument (including a proxy) delivered to the
Trustees by the Clearing Agency setting forth the Capital Security
Beneficial Owners' votes or assigning the right to vote on any matter
to any other Persons either in whole or in part; and the Clearing
Agency will also make book-entry transfers among the Clearing Agency
Participants.
SECTION 9.5 Notices to Clearing Agency.
Whenever a notice or other communication to the Capital
Security Holders is required to be given by a Trustee under this Trust
Agreement, such Trustee shall give all such notices and communications
specified herein to be given to the Holder of the Global Capital Security to
the Clearing Agency and shall have no notice obligations to the Capital
Security Beneficial Owners.
SECTION 9.6 Appointment of Successor Clearing Agency.
If any Clearing Agency elects to discontinue its services as
securities depositary with respect to the Capital Securities, the
Administrators may, in their sole discretion, appoint a successor Clearing
Agency with respect to such Capital Securities.
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ARTICLE X
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1 Liability.
(a) Except as expressly set forth in this Trust
Agreement, the Securities Guarantees and the terms of the Securities,
the Sponsor shall not be:
(i) personally liable for the return of any
portion of the capital contributions (or any return thereon)
of the Holders which shall be made solely from assets of the
Trust; and
(ii) required to pay to the Trust or to any Holder
any deficit upon dissolution of the Trust or otherwise.
(b) The Sponsor shall be liable for all of the debts and
obligations of the Trust (other than in respect of the Securities) to
the extent not satisfied out of the Trust's assets.
(c) Pursuant to Section 3803(a) of the Business Trust
Act, the Holders shall be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware.
SECTION 10.2 Exculpation.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Trust or any Covered Person
for any loss, damage or claim incurred by reason of any act or
omission performed or omitted by such Indemnified Person in good faith
on behalf of the Trust and in a manner such Indemnified Person
reasonably believed to be within the scope of the authority conferred
on such Indemnified Person by this Trust Agreement or by law, except
that an Indemnified Person shall be liable for any such loss, damage
or claim incurred by reason of such Indemnified Person's gross
negligence (or in the case of the Property Trustee or the Delaware
Trustee, negligence) or willful misconduct with respect to such acts
or omissions.
(b) An Indemnified Person shall be fully protected in
relying in good faith upon the records of the Trust and upon such
information, opinions, reports or statements presented to the Trust by
any Person as to matters the Indemnified Person reasonably believes
are within such other Person's professional or expert competence and
who has been selected with reasonable care by or on behalf of the
Trust, including information, opinions, reports or statements as to
the value and amount of the assets, liabilities, profits, losses, or
any other facts pertinent to the existence and amount of assets from
which Distributions to Holders might properly be paid.
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SECTION 10.3 Fiduciary Duty.
(a) To the extent that, at law or in equity, an
Indemnified Person has duties (including fiduciary duties) and
liabilities relating thereto to the Trust or to any other Covered
Person, an Indemnified Person acting under this Trust Agreement shall
not be liable to the Trust or to any other Covered Person for its 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 an Indemnified Person otherwise existing
at law or in equity (other than the duties imposed on the Property
Trustee under the Trust Indenture Act), are agreed by the parties
hereto to replace such other duties and liabilities of such
Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or
arises between any Covered Person and any Indemnified Person,
or
(ii) whenever this Trust Agreement or any other
agreement contemplated herein or therein provides that an
Indemnified Person shall act in a manner that is, or provides
terms that are, fair and reasonable to the Trust or any Holder
of Securities,
the Indemnified Person shall resolve such conflict of interest, take such
action or provide such terms, considering in each case the relative interest of
each party (including its own interest) to such conflict, agreement,
transaction or situation and the benefits and burdens relating to such
interests, any customary or accepted industry practices, and any applicable
generally accepted accounting practices or principles. In the absence of bad
faith by the Indemnified Person, the resolution, action or term so made, taken
or provided by the Indemnified Person shall not constitute a breach of this
Trust Agreement or any other agreement contemplated herein or of any duty or
obligation of the Indemnified Person at law or in equity or otherwise.
(c) Whenever in this Trust Agreement an Indemnified
Person is permitted or required to make a decision:
(i) in its "discretion" or under a grant of
similar authority, the Indemnified Person shall be entitled to
consider such interests and factors as it desires, including
its own interests, and shall have no duty or obligation to
give any consideration to any interest of or factors affecting
the Trust or any other Person; or
(ii) in its "good faith" or under another express
standard, the Indemnified Person shall act under such express
standard and shall not be subject to any other or different
standard imposed by this Trust Agreement or by applicable law.
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SECTION 10.4 Indemnification.
(a) The Sponsor shall indemnify, to the full extent
permitted by law, any Company Indemnified Person who was or is a party
or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the
right of the Trust) by reason of the fact that he is or was a Company
Indemnified Person, against expenses (including attorneys' fees and
expenses), judgments, fines and amounts paid in settlement actually
and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably
believed to be within the scope of authority confer on such Company
Indemnified Person by this Trust Agreement and in or not opposed to
the best interests of the Trust, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his conduct
was unlawful, except that no Company Indemnified Person shall be
entitled to be indemnified in respect of any amount incurred by such
Company Indemnified Person by reason of negligence or willful
misconduct. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a
presumption that the Company Indemnified Person did not act in good
faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the Trust, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that
his conduct was unlawful.
(b) The Sponsor shall indemnify, to the full extent
permitted by law, any Company Indemnified Person who was or is a party
or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Trust to procure a
judgment in its favor by reason of the fact that he is or was a
Company Indemnified Person against expenses (including attorneys' fees
and expenses) actually and reasonably incurred by him in connection
with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be within the
scope of authority confer on such Company Indemnified Person by this
Trust Agreement and in or not opposed to the best interests of the
Trust and except that no such indemnification shall be made in respect
of any claim, issue or matter as to which such Company Indemnified
Person shall have been adjudged to be liable to the Trust unless and
only to the extent that the Court of Chancery of Delaware or the court
in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of
all the circumstances of the case, such Person is fairly and
reasonably entitled to indemnity for such expenses which such Court of
Chancery or such other court shall deem proper, except that no Company
Indemnified Person shall be entitled to be indemnified in respect of
any amount incurred by such Company Indemnified Person by reason of
negligence or willful misconduct.
(c) To the extent that a Company Indemnified Person shall
be successful on the merits or otherwise (including dismissal of an
action without
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prejudice or the settlement of an action without admission of
liability) in defense of any action, suit or proceeding referred to in
paragraphs (i) and (ii) of this Section 10.4(a), or in defense of any
claim, issue or matter therein, he shall be indemnified, to the full
extent permitted by law, against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection therewith.
(d) Any indemnification under paragraphs (i) and (ii) of
this Section 10.4(a) (unless ordered by a court) shall be made by the
Sponsor only as authorized in the specific case upon a determination
that indemnification of the Company Indemnified Person is proper in
the circumstances because he has met the applicable standard of
conduct set forth in paragraphs (i) and (ii). Such determination shall
be made (1) by the Administrators by a majority vote of a Quorum
consisting of such Administrators who were not parties to such action,
suit or proceeding, (2) if such a Quorum is not obtainable, or, even
if obtainable, if a Quorum of disinterested Administrators so directs,
by independent legal counsel in a written opinion, or (3) by the
Common Security Holder of the Trust.
(e) Expenses (including attorneys' fees and expenses)
incurred by a Company Indemnified Person in defending a civil,
criminal, administrative or investigative action, suit or proceeding
referred to in paragraphs (i) and (ii) of this Section 10.4(a) shall
be paid by the Sponsor in advance of the final disposition of such
action, suit or proceeding upon receipt of an undertaking by or on
behalf of such Company Indemnified Person to repay such amount if it
shall ultimately be determined that he is not entitled to be
indemnified by the Sponsor as authorized in this Section 10.4(a).
Notwithstanding the foregoing, no advance shall be made by the Sponsor
if a determination is reasonably and promptly made (i) by the
Administrators by a majority vote of a Quorum of disinterested
Administrators, (ii) if such a Quorum is not obtainable, or, even if
obtainable, if a Quorum of disinterested Administrators so directs, by
independent legal counsel in a written opinion or (iii) by the Common
Security Holder of the Trust, that, based upon the facts known to the
Administrators, counsel or the Common Security Holder at the time such
determination is made, such Company Indemnified Person acted in bad
faith or in a manner that the Common Security Holder did not believe
to be in or not opposed to the best interests of the Trust, or, with
respect to any criminal proceeding, that such Company Indemnified
Person believed or had reasonable cause to believe his conduct was
unlawful. In no event shall any advance be made in instances where the
Administrators, independent legal counsel or Common Security Holder
reasonably determine that a Company Indemnified Person deliberately
breached his duty to the Trust or its Common or Capital Security
Holders.
(f) The indemnification and advancement of expenses
provided by, or granted pursuant to, the other paragraphs of this
Section 10.4(a) shall not be deemed exclusive of any other rights to
which those seeking indemnification and advancement of expenses may be
entitled under any agreement, vote of stockholders or disinterested
directors of the Sponsor or Capital Security Holders of the Trust or
otherwise, both as to action
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in his official capacity and as to action in another capacity while
holding such office. All rights to indemnification under this Section
10.4(a) shall be deemed to be provided by a contract between the
Sponsor and each Company Indemnified Person who serves in such
capacity at any time while this Section 10.4(a) is in effect. Any
repeal or modification of this Section 10.4(a) shall not affect any
rights or obligations then existing.
(g) The Sponsor or the Trust may purchase and maintain
insurance on behalf of any person who is or was a Company Indemnified
Person against any liability asserted against him and incurred by him
in any such capacity, or arising out of his status as such, whether or
not the Debenture Issuer would have the power to indemnify him against
such liability under the provisions of this Section 10.4(a).
(h) For purposes of this Section 10.4(a), references to
"the Trust" shall include, in addition to the resulting or surviving
entity, any constituent entity (including any constituent of a
constituent) absorbed in a consolidation or merger, so that any person
who is or was a director, trustee, officer or employee of such
constituent entity, or is or was serving at the request of such
constituent entity as a director, trustee, officer, employee or agent
of another entity, shall stand in the same position under the
provisions of this Section 10.4(a) with respect to the resulting or
surviving entity as he would have with respect to such constituent
entity if its separate existence had continued.
(i) The indemnification and advancement of expenses
provided by, or granted pursuant to, this Section 10.4(a) shall,
unless otherwise provided when authorized or ratified, continue as to
a Person who has ceased to be a Company Indemnified Person and shall
inure to the benefit of the heirs, executors and administrators of
such a Person.
(j) The Sponsor agrees to indemnify the (i) Property
Trustee, (ii) the Delaware Trustee, (iii) any Affiliate of the
Property Trustee or the Delaware Trustee, and (iv) any officers,
directors, shareholders, members, partners, employees,
representatives, custodians, nominees or agents of the Property
Trustee or the Delaware Trustee (each of the Persons in (i) through
(iv), including the Property Trustee and the Delaware Trustee in their
respective individual capacities, being referred to as a "Fiduciary
Indemnified Person") for, and to hold each Fiduciary Indemnified
Person harmless against, any and all loss, liability, damage, action,
suit, claim or expense including taxes (other than taxes based on the
income of such Fiduciary Indemnified Person) of any kind and nature
whatsoever incurred by such person in good faith on behalf of the
Trust and in a manner such Fiduciary Indemnified Person reasonably
believed to be within the scope of authority conferred on such
Fiduciary Indemnified Person by this Trust Agreement, except that no
Fiduciary Indemnified Person shall be entitled to be indemnified in
respect of any amount incurred by such Fiduciary Indemnified Person by
reason of negligence or willful misconduct, arising out of or in
connection with the acceptance or administration of the trust or
trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of
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defending against or investigating any claim or liability in
connection with the exercise or performance of any of the powers or
duties of such Fiduciary Indemnified Person hereunder. The obligation
to indemnify as set forth in this Section 10.4(b) shall survive the
resignation or removal of the Property Trustee or the Delaware Trustee
and the satisfaction and discharge of this Trust Agreement.
(k) The Sponsor agrees to pay the Property Trustee and
the Delaware Trustee, from time to time, such reasonable compensation
for all services rendered by the Property Trustee and the Delaware
Trustee hereunder as may be mutually agreed upon in writing by the
Sponsor and the Property Trustee or the Delaware Trustee, as the case
may be, and, except as otherwise expressly provided herein, to
reimburse the Property Trustee and the Delaware Trustee upon its or
their request for all reasonable expenses (including counsel fees and
expenses), disbursements and advances incurred or made by the Property
Trustee or the Delaware Trustee, as the case may be, in accordance
with the provisions of this Trust Agreement, except any such expense,
disbursement or advance as may be attributable to its or their
negligence, bad faith or willful misconduct.
SECTION 10.5 Outside Businesses.
Any Covered Person, the Sponsor, the Delaware Trustee and the
Property Trustee (subject to Section 5.3(c)) 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 Trust, and the
Trust and the Holders 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 Trust, shall not be deemed wrongful or improper. No Covered Person, the
Sponsor, the Delaware Trustee, or the Property Trustee shall be obligated to
present any particular investment or other opportunity to the Trust even if
such opportunity is of a character that, if presented to the Trust, could be
taken by the Trust, and any Covered Person, the Sponsor, the Delaware Trustee
and the Property 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 Covered Person, the Delaware
Trustee and the Property Trustee may engage or be interested in any financial
or other transaction with the Sponsor or any Affiliate of the Sponsor, or may
act as depositary for, trustee or agent for, or act on any committee or body of
holders of, securities or other obligations of the Sponsor or its Affiliates.
ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year.
The fiscal year ("Fiscal Year") of the Trust shall be the
calendar year, or such other year as is required by the Code.
SECTION 11.2 Certain Accounting Matters.
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(a) At all times during the existence of the Trust, the
Administrators shall keep, or cause to be kept, full books of account,
records and supporting documents, which shall reflect in reasonable
detail each transaction of the Trust. The books of account shall be
maintained on the accrual method of accounting, in accordance with
generally accepted accounting principles, consistently applied. The
Trust shall use the accrual method of accounting for United States
federal income tax purposes. The books of account and the records of
the Trust shall be examined by and reported upon as of the end of each
Fiscal Year of the Trust by a firm of independent certified public
accountants selected by the Administrators.
(b) The Administrative Trustees shall cause to be duly
prepared and delivered to each of the Holders any annual United States
federal income tax information statement required by the Code,
containing such information with regard to the Securities held by each
Holder as is required by the Code and the Treasury Regulations.
(c) The Administrators shall cause to be duly prepared
and filed with the appropriate taxing authority, an annual United
States federal income tax return, on a Form 1041 or such other form
required by United States federal income tax law, and any other annual
income tax returns required to be filed by the Administrators on
behalf of the Trust with any state or local taxing authority.
SECTION 11.3 Banking.
The Trust may maintain one or more bank accounts in the name
and for the sole benefit of the Trust; provided, however, that all payments of
funds in respect of the Debentures held by the Property Trustee shall be made
directly to the Property Trustee Account and no other funds of the Trust shall
be deposited in the Property Trustee Account. The sole signatories for such
accounts shall be designated by the Administrators; provided, however, that the
Property Trustee shall designate the signatories for the Property Trustee
Account.
SECTION 11.4 Withholding.
The Trust and the Administrators shall comply with all
withholding requirements under United States federal, state and local law. The
Trust shall request, and the Holders shall provide to the Trust, such forms or
certificates as are necessary to establish an exemption from withholding with
respect to each Holder, and any representations and forms as shall reasonably
be requested by the Trust to assist it in determining the extent of, and in
fulfilling, its withholding obligations. The Administrators shall cause to be
filed required forms with applicable jurisdictions and, unless an exemption
from withholding is properly established by a Holder, shall remit amounts
withheld with respect to the Holder to applicable jurisdictions. To the extent
that the Trust is required to withhold and pay over any amounts to any
authority with respect to Distributions or allocations to any Holder, the
amount withheld shall be deemed to be a Distribution in the amount of the
withholding to the Holder. In the event of any claim of excess withholding,
Holders shall be limited to an action against the applicable
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jurisdiction. If the amount required to be withheld was not withheld from
actual Distributions made, the Trust may reduce subsequent Distributions by the
amount of such withholding.
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments.
(a) Except as otherwise provided in this Trust Agreement
(including Section 7 of Annex I hereto) or by any applicable terms of
the Securities, this Trust Agreement may only be amended by a written
instrument approved and executed by:
(i) the Sponsor and the Administrators (or, if
there are more than two Administrators, a majority of the
Administrators);
(ii) if the amendment affects the rights, powers,
duties, obligations or immunities of the Property Trustee, the
Property Trustee; and
(iii) if the amendment affects the rights, powers,
duties, obligations or immunities of the Delaware Trustee, the
Delaware Trustee.
(b) No amendment shall be made, and any such purported
amendment shall be void and ineffective:
(i) unless, in the case of any proposed
amendment, the Property Trustee shall have first received an
Officers' Certificate from each of the Trust and the Sponsor
that such amendment is permitted by, and conforms to, the
terms of this Trust Agreement (including the terms of the
Securities);
(ii) unless, in the case of any proposed amendment
which affects the rights, powers, duties, obligations or
immunities of the Property Trustee, the Property Trustee shall
have first received:
(A) an Officers' Certificate from each of the
Trust and the Sponsor that such amendment is
permitted by, and conforms to, the terms of this
Trust Agreement (including the terms of the
Securities); and
(B) an Opinion of Counsel (who may be counsel to
the Sponsor or the Trust) that such amendment is
permitted by, and conforms to, the terms of this
Trust Agreement (including the terms of the
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Securities) and that all conditions precedent to the
execution and delivery of such amendment have been
satisfied;
provided, however, that the Property Trustee shall not be required to sign any
such amendment; and
(iii) to the extent the result of such amendment
would be to:
(A) cause the Trust to fail to continue to be
classified for purposes of United States federal
income taxation as a grantor trust;
(B) reduce or otherwise adversely affect the
powers of the Property Trustee in contravention of
the Trust Indenture Act; or
(C) cause the Trust to be deemed to be an
Investment Company required to be registered under
the Investment Company Act.
(c) At such time after the Trust has issued any
Securities that remain outstanding, any amendment that would adversely
affect the rights, privileges or preferences of any Holder (other than
an amendment pursuant to (g)(ii) below) may be effected only with such
additional requirements as may be set forth in the terms of such
Securities;
(d) Section 10.1(c) and this Section 12.1 shall not be
amended without the consent of all of the Holders;
(e) Article Four shall not be amended without the consent
of the Holders of a Majority in Liquidation Amount of the Common
Securities;
(f) The rights of the Holders of the Common Securities
under Article V to increase or decrease the number of Trustees shall
not be amended without the consent of the Holders of a Majority in
Liquidation Amount of the Common Securities; and
(g) Notwithstanding Section 12.1(c), this Trust Agreement
may be amended without the consent of the Holders of the Capital
Securities to:
(i) cure any ambiguity, correct or supplement any
provision in this Trust Agreement that may be inconsistent
with any other provision of this Trust Agreement or to make
any other provisions with respect to matters or questions
arising under this Trust Agreement which shall not be
inconsistent with the other provisions of the Trust Agreement;
(ii) to modify, eliminate or add to any provisions
of the Trust Agreement to such extent as shall be necessary to
ensure that the Trust will not be classified as an association
taxable as a corporation or to enable the Trust to qualify as
a grantor trust at all times that any Securities are
outstanding, in each case for U.S. federal income tax
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purposes or to ensure that the Trust will not be required to
register as an Investment Company under the Investment Company
Act; and
(iii) to modify, eliminate or add any provisions of
the Trust Agreement to such extent as shall be necessary to
enable the Trust or the Sponsor to conduct an Exchange Offer
in the manner contemplated by the Registration Rights
Agreement;
provided, however, that in the case of clauses (i) and (iii) above, such action
shall not adversely affect in any material respect the interests of the
Holders, and any such amendments of this Trust Agreement shall become effective
when notice thereof is given to the Holders.
SECTION 12.2 Meetings of the Holders; Action by Written Consent.
(a) Meetings of the Holders of any class of Securities
may be called at any time by the Administrators or the Property
Trustee (or as provided in the terms of the Securities) to consider
and act on any matter on which Holders of such class of Securities are
entitled to act under the terms of this Trust Agreement, the terms of
the Securities or the rules of any stock exchange on which the Capital
Securities are listed or admitted for trading. The Property Trustee
shall call a meeting of the Holders of such class if directed to do so
by the Holders of at least 25% in Liquidation Amount of such class of
Securities. Such direction shall be given by delivering to the
Property Trustee one or more notices in writing stating that the
signing Holders wish to call a meeting and indicating the general or
specific purpose for which the meeting is to be called. Any Holders
calling a meeting shall specify in writing the Capital Security
Certificates held by the Holders exercising the right to call a
meeting and only those Securities specified shall be counted for
purposes of determining whether the required percentage set forth in
the second sentence of this paragraph has been met.
(b) Except to the extent otherwise provided in the terms
of the Securities, the following provisions shall apply to meetings of
Holders:
(i) notice of any such meeting shall be given to
all the Holders having a right to vote thereat at least seven
days and not more than 90 days before the date of such
meeting. Whenever a vote, consent or approval of the Holders
is permitted or required under this Trust Agreement or the
rules of any stock exchange on which the Capital Securities
are listed or admitted for trading, such vote, consent or
approval may be given at a meeting of the Holders; any action
that may be taken at a meeting of the Holders may be taken
without a meeting if a consent in writing setting forth the
action so taken is signed by the Holders owning not less than
the minimum amount of Securities in liquidation amount that
would be necessary to authorize or take such action at a
meeting at which all Holders having a right to vote thereon
were present and voting; prompt notice of the taking of action
without a
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meeting shall be given to the Holders entitled to vote who
have not consented in writing; and the Property Trustee may
specify that any written ballot submitted to the Security
Holder for the purpose of taking any action without a meeting
shall be returned to the Trust within the time specified by
the Property Trustee;
(ii) each Holder may authorize any Person to act
for it by proxy on all matters in which a Holder is entitled
to participate, including waiving notice of any meeting, or
voting or participating at a meeting; no proxy shall be valid
after the expiration of eleven months from the date thereof
unless otherwise provided in the proxy; every proxy shall be
revocable at the pleasure of the Holder executing it; and,
except as otherwise provided herein, all matters relating to
the giving, voting or validity of proxies shall be governed by
the General Corporation Law of the State of Delaware relating
to proxies, and judicial interpretations thereunder, as if the
Trust were a Delaware corporation and the Holders were
stockholders of a Delaware corporation;
(iii) each meeting of the Holders shall be
conducted by the Property Trustee or by such other Person that
the Property Trustee may designate; and
(iv) unless the Business Trust Act, this Trust
Agreement, the terms of the Securities, the Trust Indenture
Act or the listing rules of any stock exchange on which the
Capital Securities are then listed or trading, otherwise
provides, the Property Trustee, in its sole discretion, shall
establish all other provisions relating to meetings of
Holders, including notice of the time, place or purpose of any
meeting at which any matter is to be voted on by any Holders,
waiver of any such notice, action by consent without a
meeting, the establishment of a record date, quorum
requirements, voting in person or by proxy or any other matter
with respect to the exercise of any such right to vote.
ARTICLE XIII
REPRESENTATIONS OF PROPERTY TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of Property Trustee.
The Trustee that acts as initial Property Trustee represents
and warrants to the Trust and to the Sponsor at the date of this Trust
Agreement, and each Successor Property Trustee represents and warrants to the
Trust and the Sponsor at the time of the Successor Property Trustee's
acceptance of its appointment as Property Trustee that:
(a) the Property Trustee is a banking corporation, a
national banking association or a bank or trust company, duly
organized, validly existing and in good standing under the laws of the
United States or the State of Delaware as the
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case may be, with corporate 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 under Delaware law (excluding any securities
laws) 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 charter or by-laws of the Property Trustee;
(d) no consent, approval or authorization of, or
registration with or notice to, any federal or state banking authority
governing the trust powers of the Property Trustee is required for the
execution, delivery or performance by the Property Trustee of this
Trust Agreement; and
(e) the Property Trustee has not knowingly created any
liens or encumbrances of the Securities.
SECTION 13.2 Representations and Warranties of Delaware Trustee.
The Trustee that acts as initial Delaware Trustee represents
and warrants to the Trust and to the Sponsor at the date of this Trust
Agreement, and each Successor Delaware Trustee represents and warrants to the
Trust and the Sponsor at the time of the Successor Delaware Trustee's
acceptance of its appointment as Delaware Trustee that:
(a) the Delaware Trustee is a banking corporation, a
national banking association or a bank or trust company, duly
organized, validly existing and in good standing under the laws of the
United States or the State of Delaware, as the case may be, with
corporate 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
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 under Delaware law (excluding any securities
laws) 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' rights
generally and to general principles of
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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 Delaware Trustee does not conflict with or constitute
a breach of the charter or by-laws of the Delaware Trustee; and
(d) no consent, approval or authorization of, or
registration with or notice to, any federal or Delaware banking
authority governing the trust powers of the Delaware Trustee is
required for the execution, delivery or performance by the Delaware
Trustee of this Trust Agreement; and
(e) the Delaware Trustee is a natural person who is a
resident of the State of Delaware or, if not a natural person, an
entity which has its principal place of business in the State of
Delaware, and is a Person that satisfies for the Trust Section 3807(a)
of the Business Trust Act.
ARTICLE XIV
REGISTRATION RIGHTS
SECTION 14.1 Registration Rights Agreement; Liquidated Damages.
The Holders of the Series A Capital Securities, the Series A
Debentures and the Series A Capital Securities Guarantee are entitled to the
benefits of the Registration Rights Agreement. In certain limited circumstances
set forth in the Registration Rights Agreement, the Debenture Issuer shall be
required to pay liquidated damages with respect to the Debentures. Unless
otherwise stated, the term "Distribution," as used in this Trust Agreement,
includes any and all liquidated damages.
ARTICLE XV
MISCELLANEOUS
SECTION 15.1 Notices.
All notices provided for in this Trust Agreement shall be in
writing, duly signed by the party giving such notice, and shall be delivered,
telecopied or mailed by first class mail, overnight courier service or
confirmed telecopy, as follows:
(a) if given to the Trust, in care of the Administrators
at the Trust's mailing address set forth below (or such other address
as the Trust may give notice of to the Property Trustee, the Delaware
Trustee and the Holders):
CNBF Capital Trust I
c/o CNB Financial Corp.
00 Xxxxxx Xxxxxx
Xxxxxxxxxxx, Xxx Xxxx 00000
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Attn.: Administrator
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
(b) if given to the Delaware Trustee, at the mailing
address set forth below (or such other address as Delaware Trustee may
give notice of to the Holders):
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attn.: Corporate Trust Administration
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
(c) if given to the Property Trustee, at the Property
Trustee's mailing address set forth below (or such other address as
the Property Trustee may give notice of to the Holders):
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attn: Corporate Trust Administration
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
(d) if given to the Holder of the Common Securities, at
the mailing address of the Sponsor set forth below (or such other
address as the Holder of the Common Securities may give notice to the
Trust):
CNB Financial Corp.
00 Xxxxxx Xxxxxx
Xxxxxxxxxxx, Xxx Xxxx 00000
Attn.: Xxxxx X. Xxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
(e) if given to any other Holder, at the address set
forth on the books and records of the Trust.
All such notices shall be deemed to have been given when
received in person, telecopied with receipt confirmed, or mailed by first class
mail, postage prepaid except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address of which no notice
was given, such notice or other document shall be deemed to have been delivered
on the date of such refusal or inability to deliver.
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SECTION 15.2 Governing Law.
This Trust Agreement and the rights of the parties hereunder
shall be governed by and construed in accordance with the laws of the State of
Delaware without regard to conflict of laws principles thereof.
SECTION 15.3 Intention of the Parties.
It is the intention of the parties hereto that the Trust be
classified for United States federal income tax purposes as a grantor trust.
The provisions of this Trust Agreement shall be interpreted to further this
intention of the parties.
SECTION 15.4 Headings.
Headings contained in this Trust Agreement are inserted for
convenience of reference only and do not affect the interpretation of this
Trust Agreement or any provision hereof.
SECTION 15.5 Successors and Assigns.
Whenever in this Trust Agreement any of the parties hereto is
named or referred to, the successors and assigns of such party shall be deemed
to be included, and all covenants and agreements in this Trust Agreement by the
Sponsor and the Trustees shall bind and inure to the benefit of their
respective successors and assigns, whether or not so expressed.
SECTION 15.6 Partial Enforceability.
If any provision of this Trust Agreement, or the application
of such provision to any Person or circumstance, shall be held invalid, the
remainder of this Trust Agreement, or the application of such provision to
Persons or circumstances other than those to which it is held invalid, shall
not be affected thereby.
SECTION 15.7 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 Trustees to one or more 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 page.
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EXHIBIT 4.4
IN WITNESS WHEREOF, the undersigned has caused these presents
to be executed as of the day and year first above written.
WILMINGTON TRUST COMPANY,
as Delaware Trustee
By: /s/ XXXXXX XXXXXXXX
------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
WILMINGTON TRUST COMPANY,
as Property Trustee
By: /s/ XXXXXX XXXXXXXX
------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
CNB FINANCIAL CORP.,
as Sponsor and Debenture Issuer
By: /s/ XXXXX X. XXXXX
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Executive Vice President
and Chief Financial Officer
Accepted and agreed to:
/s/ XXXXXX X. BRASS
----------------------------------
Xxxxxx X. Brass,
as Administrator
/s/ XXXXX X. XXXXX
----------------------------------
Xxxxx X. Xxxxx,
as Administrator
/s/ XXXXXXX XXXXX
----------------------------------
Xxxxxxx Xxxxx,
as Administrator
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EXHIBIT 4.4
ANNEX I
TERMS OF
FLOATING RATE CAPITAL SECURITIES, SERIES A/SERIES B
FLOATING RATE COMMON SECURITIES
Pursuant to Section 7.1 of the Amended and Restated Trust
Agreement, dated as of August 6, 1999 (as amended from time to time, the "Trust
Agreement"), the designation, rights, privileges, restrictions, preferences and
other terms and provisions of the Securities are set out below (each
capitalized term used but not defined herein has the meaning set forth in the
Trust Agreement or, if not defined in such Trust Agreement, as defined in the
Offering Memorandum referred to below in Section 2(g) of this Annex I):
1. Designation and Number.
(a) Capital Securities. 18,000 Series A Capital
Securities of the Trust and 18,000 Series B Capital Securities of the Trust,
each series with an aggregate liquidation amount with respect to the assets of
the Trust of Eighteen Million Dollars ($18,000,000) and with a liquidation
amount with respect to the assets of the Trust of One Thousand Dollars ($1,000)
(the "Liquidation Amount") per security, are hereby designated for the purposes
of identification only as "Floating Rate Capital Securities, Series A" and
"Floating Rate Capital Securities, Series B," respectively (collectively, the
"Capital Securities"). The certificates evidencing the Capital Securities shall
be substantially in the form of Exhibit A-1 to the Trust Agreement, with such
changes and additions thereto or deletions therefrom as may be required by
ordinary usage, custom or practice or to conform to the rules of any exchange or
quotation system on or in which the Capital Securities are listed, traded or
quoted.
(b) Common Securities. 720 Common Securities of the Trust
with an aggregate liquidation amount with respect to the assets of the Trust of
Seven Hundred Twenty Thousand Dollars ($720,000) and a liquidation amount with
respect to the assets of the Trust of $1,000 per security, are hereby
designated for the purposes of identification only as "Floating Rate Common
Securities" (the "Common Securities"). The certificates evidencing the Common
Securities shall be substantially in the form of Exhibit A-2 to the Trust
Agreement, with such changes and additions thereto or deletions therefrom as
may be required by ordinary usage, custom or practice.
2. Distributions.
(a) Distributions on each Security will be payable at a
rate per annum, reset quarterly, equal to 3-month LIBOR (as defined below) plus
275 basis points (the "Coupon Rate"), such rate being the rate of interest
payable on the Debentures to be held by the Property Trustee. Distributions in
arrears for more than one quarterly period will bear additional Distributions
thereon compounded quarterly at the Coupon Rate (to the extent permitted by
applicable law). Pursuant to the Registration Rights Agreement, in certain
limited circumstances the Debenture Issuer will be required to pay Liquidated
Damages (as defined in the Registration Rights Agreement) with respect to the
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Debentures. The term "Distributions," as used herein, includes distributions of
any and all such interest and Liquidated Damages, if any, payable unless
otherwise stated. A Distribution is payable only to the extent that payments
are made with respect to the Debentures held by the Property Trustee and to the
extent the Property Trustee has funds legally available therefor.
(b) The Coupon Rate on the Securities for each quarter
(or other period for which interest is payable) will be determined on the
Determination Date (as defined below) for such quarter (or other period for
which interest is payable) and will be a per annum rate reset quarterly equal
to 3-month LIBOR (determined as set forth below) plus 275 basis points, and
will be effective as of the first day of such quarter (or other period for
which interest is payable).
(c) On each Determination Date, the Calculation Agent
will calculate the interest rate, based on 3-month LIBOR, for each interest
period commencing on the second London Banking Day immediately following such
Determination Date. "3-month LIBOR" means, with respect to an interest period
relating to a Distribution Date, the London interbank offered rate for
three-month, Eurodollar deposits determined in the following order of priority:
(i) the rate (expressed as a percentage per annum) for
Eurodollar deposits having a three-month maturity that appears on
Telerate Page 3750 as of 11:00 a.m. (London time) on the related
Determination Date);
(ii) if such rate does not appear on Telerate Page 3750 as
of 11:00 a.m. (London time) on the related Determination Date, 3-month
LIBOR will be the arithmetic mean of the rates (expressed as
percentages per annum) for Eurodollar deposits having a three-month
maturity that appear on Reuters Monitor Money Rates Page LIBO
("Reuters Page LIBO") as of 11:00 a.m. (London time) on such
Determination Date;
(iii) if such rate does not appear on Reuters Page LIBO as
of 11:00 a.m. (London time) on the related Determination Date, the
Calculation Agent will request the principal London offices of four
leading banks in the London interbank market to provide such banks'
offered quotations (expressed as percentages per annum) to prime banks
in the London interbank market for Eurodollar deposits having a
three-month maturity as of 11:00 a.m. (London time) on such
Determination Date. If at least two quotations are provided, 3-month
LIBOR will be the arithmetic mean of such quotations;
(iv) if fewer than two such quotations are provided as
requested in clause (iii) above, the Calculation Agent will request
four major New York City banks to provide such banks' offered
quotations (expressed as percentages per annum) to leading European
banks for loans in Eurodollars as of 11:00 a.m. (London time) on such
Determination Date. If at least two such quotations are provided,
3-month LIBOR will be the arithmetic mean of such quotations; and
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(v) if fewer than two such quotations are provided as
requested in clause (iv) above, 3-month LIBOR will be 3-month LIBOR
determined with respect to the interest period immediately preceding
such current interest period.
If the rate for Eurodollar deposits having a three-month
maturity that initially appears on Telerate Page 3750 or Reuters Page LIBO, as
the case may be, as of 11:00 a.m. (London time) on the related Determination
Date is superceded on Telerate Page 3750 or Reuters Page LIBO, as the case may
be, by a corrected rate before 12:00 noon (London time) on such Determination
Date, the corrected rate as so substituted on the applicable page will be the
applicable 3-month LIBOR for such Determination Date.
As used herein:
"Calculation Agent" means Wilmington Trust Company,
Wilmington, Delaware.
"Determination Date" means the date that is two London Banking
Days preceding the first day of any quarter or other period for which a
Distribution will be payable.
"London Banking Day" means a day on which dealings in deposits
in U.S. dollars are transacted in the London interbank market.
Telerate Page 3750" means the display designated as "Page
3750" on the Dow Xxxxx Telerate Service (or such other page as may replace Page
3750 on that service or such other service or services as may be nominated by
the British Bankers' Association as the information vendor for the purpose of
displaying London interbank offered rates for U.S. dollar deposits).
(d) All percentages resulting from any calculations on
the Securities will be rounded, if necessary, to the nearest one
hundred-thousandth of a percentage point, with five one- millionths of a
percentage point rounded upward (e.g., 9.876545% (or .09876545) being rounded
to 9.87655% (or .0987655)), and all dollar amounts used in or resulting from
such calculation will be rounded to the nearest cent (with one-half cent being
rounded upward).
(e) On the Determination Date, the Calculation Agent
shall notify the Debenture Issuer and the Paying Agent of the applicable Coupon
Rate in effect for the related Distribution period. The Calculation Agent
shall, upon the request of the holder of any Securities, provide the Coupon
Rate then in effect. All calculations made by the Calculation Agent in the
absence of manifest error shall be conclusive for all purposes and binding on
the Sponsor and the Holders of the Securities. The Paying Agent shall be
entitled to rely on information received from the Calculation Agent or the
Debenture Issuer as to the Coupon Rate.
(f) Distributions on the Securities will be cumulative,
will accumulate from the most recent date to which Distributions have been paid
or, if no Distributions have been paid, from August 6, 1999 and will be payable
quarterly in arrears on Xxxxx
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00, Xxxx 30, September 30 and December 31 of each year, commencing September
30, 1999 (each, a "Distribution Date"), except as otherwise described below.
Distributions will be computed on the basis of the actual number of days
elapsed in such period and a 360-day year. As long as no Event of Default has
occurred and is continuing under the Indenture, the Debenture Issuer has the
right under the Indenture to defer payments of interest by extending the
interest payment period at any time and from time to time on the Debentures for
a period not exceeding 20 consecutive quarterly periods, including the first
such quarterly period during such period (each an "Extension Period"), during
which Extension Period no interest shall be due and payable on the Debentures,
provided that no Extension Period shall end on a date other than an Interest
Payment Date for the Debentures or extend beyond the Maturity Date of the
Debentures. As a consequence of such deferral, Distributions (other than
Liquidated Damages, if any) will also be deferred. Notwithstanding such
deferral, Distributions will continue to accumulate with additional
Distributions thereon (to the extent permitted by applicable law but not at a
rate greater than the rate at which interest is then accruing on the
Debentures) at the applicable periodic Coupon Rate compounded quarterly during
any such Extension Period. Prior to the termination of any such Extension
Period, the Debenture Issuer may further defer payments of interest by further
extending such Extension Period, provided that such extension does not cause
such Extension Period, together with all such previous and further extensions
within such Extension Period, to exceed 20 consecutive quarterly periods,
including the first quarterly period during such Extension Period, end on a
date other than an Interest Payment Date for the Debentures or extend beyond
the Maturity Date of the Debentures. Upon the termination of any Extension
Period and the payment of all amounts then due, the Debenture Issuer may
commence a new Extension Period, subject to the above requirements.
(g) Distributions on the Securities will be payable to
the Holders thereof as they appear on the books and records of the Trust on the
close of business on the 15th day of the month in which the relevant
Distribution Date occurs, which Distribution Dates correspond to the Interest
Payment Dates for the Debentures. Subject to any applicable laws and
regulations and the provisions of the Declaration, each such payment with
respect to the Capital Securities will be made as described under the heading
"Description of Capital Securities -- Form, Denomination, Book-Entry Procedures
and Transfer" in the Offering Memorandum dated August 4, 1999 of the Debenture
Issuer and the Trust relating to the Securities and the Debentures. The
relevant record dates for the Common Securities shall be the same as the record
dates for the Capital Securities. Distributions payable on any Securities that
are not punctually paid on any Distribution Date, as a result of the Debenture
Issuer having failed to make a payment under the Debentures, will cease to be
payable to the Holder on the relevant record date, and such defaulted
Distribution will instead be payable to the Person in whose name such
Securities are registered on the special record date or other specified date
determined in accordance with the Indenture. If any date on which Distributions
are payable on the Securities is not a Business Day, then payment of the
Distributions 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 next succeeding Business Day falls in the next
succeeding calendar year, such payment
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shall be made on the immediately preceding Business Day with the same force and
effect as if made on such date.
(h) In the event that there is any money or other
property held by or for the Trust that is not accounted for hereunder, such
property shall be distributed Pro Rata (as defined herein) among the Holders.
3. Liquidation Distribution Upon Dissolution.
In the event of any dissolution of the Trust, the Trust shall
be liquidated by the Property Trustee as expeditiously as the Property Trustee
determines to be possible by distributing to the Holders, after satisfaction of
liabilities to creditors of the Trust as provided by applicable law, a Like
Amount (as defined below) of the Debentures, unless such distribution is
determined by the Property Trustee not to be practicable, in which event such
Holders will be entitled to receive out of the assets of the Trust legally
available for distribution to Holders, after satisfaction of liabilities to
creditors of the Trust as provided by applicable law, an amount equal to the
aggregate of the liquidation amount of $1,000 per Security plus accumulated and
unpaid Distributions thereon to the date of payment (such amount being the
"Liquidation Distribution").
"Like Amount" means (i) with respect to a redemption of the
Securities, Securities having a Liquidation Amount equal to the principal
amount of Debentures to be paid in accordance with their terms and (ii) with
respect to a distribution of Debentures upon the liquidation of the Trust,
Debentures having a principal amount equal to the Liquidation Amount of the
Securities of the Holder to whom such Debentures are distributed.
If, upon any such liquidation, the Liquidation Distribution
can be paid only in part because the Trust has insufficient assets legally
available to pay in full the aggregate Liquidation Distribution, then the
amounts payable directly by the Trust with respect to the Securities shall be
paid on a Pro Rata basis, except that if an Event of Default has occurred and
is continuing, the Capital Securities shall have a priority over the Common
Securities, as provided in Section 9 of this Annex I.
4. Redemption and Distribution.
(a) Upon the repayment of the Debentures in whole or in
part, at maturity or otherwise (either at the option of the Debenture Issuer or
pursuant to a Special Event, as described below), the proceeds from such
repayment shall be simultaneously applied by the Property Trustee (subject to
the Property Trustee having received written notice no later than 45 days prior
to such repayment) to redeem a Like Amount of the Securities at a redemption
price equal to 100% of the principal of, plus accrued and unpaid interest on,
the Debentures being redeemed (the "Redemption Price"). Holders will be given
not less than 30 nor more than 60 days' prior written notice of such
redemption.
(b) In the case of an optional redemption, if fewer than
all the outstanding Securities are to be so redeemed, the Common Securities and
the Capital
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Securities shall be redeemed Pro Rata and the Capital Securities to be redeemed
will be determined as described in Section 4(f)(ii) below. Upon the entry of an
order for the dissolution of the Trust by a court of competent jurisdiction,
the Debentures thereafter will be subject to optional redemption, in whole, but
not in part, on or after the Initial Optional Redemption Date.
The Debenture Issuer shall have the right (subject to the
conditions in the Indenture) to elect to redeem the Debentures, in whole or in
part, at any time on or after [ ], 2009 (the "Initial
Optional Redemption Date"), and, simultaneous with such redemption, to cause a
Like Amount of the Securities to be redeemed by the Trust at the Redemption
Price on a Pro Rata basis.
(c) If at any time an Investment Company Event, a
Regulatory Capital Event or a Tax Event (each as defined below, and each a
"Special Event") occurs, the Debenture Issuer shall have the right (subject to
the conditions set forth in the Indenture) at any time prior to the Initial
Optional Redemption Date, to redeem the Debentures in whole, but not in part,
within the 90 days following the occurrence of such Special Event (the ''90 Day
Period"), and, simultaneous with such redemption, to cause a Like Amount of the
Securities to be redeemed by the Trust at the Redemption Price on a Pro Rata
basis.
"Investment Company Event" shall mean the receipt by the Trust
of an opinion of 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
(including any announced prospective change) in interpretation or application
of law or regulation by any legislative body, court, governmental agency or
regulatory authority there is more than an insubstantial risk that the Trust is
or will be considered an "investment company" that is required to be registered
under the Investment Company Act, which change or prospective change becomes
effective or would become effective, as the case may be, on or after the date
of issuance of the Capital Securities.
"Regulatory Capital Event" shall mean the reasonable
determination by the Debenture Issuer that as a result of (a) 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
thereof or therein or any rules, guidelines or policies of an applicable
regulatory authority for the Debenture Issuer or (b) any official
administrative pronouncement or judicial decision interpreting or applying such
laws or regulations, which amendment or change is effective or which
pronouncement or decision is announced on or after the date of original
issuance of the Securities, there is more than an insubstantial risk that the
Debenture Issuer will not be entitled to treat an amount equal to the
liquidation amount of the Capital Securities as Tier 1 Capital (or its then
equivalent if the Sponsor were subject to such capital requirement) for
purposes of the risk-based capital adequacy guidelines of the Federal Reserve
Board or those in effect and applicable to the Debenture Issuer.
A "Tax Event" shall occur upon receipt by the Debenture Issuer
and the Trust of an opinion of independent tax counsel experienced in such
matters to the effect that, as a result of (a) any amendment to, or change
(including any announced prospective
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change) in, the laws or any regulations thereunder of the United States or any
political subdivision or taxing authority thereof or therein, or (b) any
official administrative pronouncement or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
which pronouncement or decision is announced on or after the date of original
issuance of the Securities, there is more than an insubstantial risk that (i)
the Trust is, or will be within 90 days of the date of such opinion, subject to
United States federal income tax with respect to income received or accrued on
the Debentures, (ii) the interest payable by the Debenture Issuer on the
Debentures is not, or within 90 days of the date of such opinion will not be,
deductible by the Debenture Issuer, in whole or in part, for United States
federal income tax purposes, or (iii) the Trust is, or will be within 90 days
of the date of such opinion, subject to more than a de minimis amount of other
taxes, duties or other governmental charges.
(d) On and from the date fixed by the Trustees for any
distribution of Debentures and liquidation of the Trust: (i) the Securities
will no longer be deemed to be outstanding, (ii) the Clearing Agency or its
nominee (or any successor Clearing Agency or its nominee), as the Holder of the
Capital Securities, will receive a registered global certificate or
certificates representing the Debentures to be delivered upon such
distribution, and (iii) any certificates representing Securities not held by
the Clearing Agency or its nominee (or any successor Clearing Agency or its
nominee) will be deemed to represent beneficial interests in a Like Amount of
Debentures until such certificates are presented to the Debenture Issuer or its
agent for transfer or reissue.
(e) The Trust may not redeem fewer than all the
outstanding Securities unless all accumulated and unpaid Distributions have
been paid on all Securities for all quarterly Distribution periods terminating
on or before the date of redemption.
(f) The procedure with respect to redemptions or
distributions of Securities shall be as follows:
(i) Notice of any redemption of, or notice of
distribution of Debentures in exchange for, the Securities (a
"Redemption/Distribution Notice") will be given by the Trust by mail
to each Holder to be redeemed or exchanged not fewer than 30 nor more
than 60 days before the date fixed for redemption or exchange thereof
which, in the case of a redemption, will be the date fixed for
redemption of the Debentures. For purposes of the calculation of the
date of redemption or exchange and the dates on which notices are
given pursuant to this Section 4(f)(i), a Redemption/Distribution
Notice shall be deemed to be given on the day such notice is first
mailed by first-class mail, postage prepaid, to Holders. Each
Redemption/Distribution Notice shall be addressed to the Holders at
the address of each such Holder appearing in the books and records of
the Trust. No defect in the Redemption/Distribution Notice or in the
mailing of either thereof with respect to any Holder shall affect the
validity of the redemption or exchange proceedings with respect to any
other Holder.
(ii) In the event that fewer than all the outstanding
Securities are to be redeemed, the particular Securities to be
redeemed shall be selected on a Pro
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Rata basis (based upon Liquidation Amounts) not more than 60 nor less
than 30 days prior to the date fixed for redemption from the
outstanding Securities not previously called for redemption; provided,
however, that with respect to Holders that would be required to hold
less than 100 but more than zero Securities as a result of such
redemption, the Trust shall redeem Securities of each such Holder so
that after such redemption such Holder shall hold either 100
Securities or such Holder no longer holds any Securities, and shall
use such method (including, without limitation, by lot) as the Trust
shall deem fair and appropriate; provided, further, that any such
redemption may be made on the basis of the aggregate Liquidation
Amount of Securities held by each Holder thereof and may be made by
making such adjustments as the Trust deems fair and appropriate in
order that fractional Securities shall not thereafter remain
outstanding. With respect to Capital Securities registered in the
name of and held of record by the Clearing Agency or its nominee (or
any successor Clearing Agency or its nominee) or any nominee, the
distribution of the proceeds of such redemption will be made to the
Clearing Agency and disbursed by such Clearing Agency in accordance
with the procedures applied by such agency or nominee.
(iii) If Securities are to be redeemed and the Trust gives
a Redemption/Distribution Notice (which notice will be irrevocable),
then (A) with respect to Capital Securities issued in book-entry form,
by 12:00 noon, Eastern time, on the redemption date, the Property
Trustee will deposit irrevocably with the Clearing Agency or its
nominee (or successor Clearing Agency or its nominee) immediately
available funds sufficient to pay the applicable Redemption Price with
respect to such Capital Securities and will give the Clearing Agency
irrevocable instructions and authority to pay the Redemption Price to
the relevant Clearing Agency Participants, and (B) with respect to
Capital Securities issued in certificated form and Common Securities,
the Property Trustee will irrevocably deposit with the paying agent
for the Capital Securities (if other than the Property Trustee) funds
sufficient to pay the applicable Redemption Price to the Holders by
check mailed to the address of the relevant Holder appearing on the
books and records of the Trust on the redemption date, and provided
further, that any such payment shall become due only upon surrender by
the Holder of the related certificated Capital Securities. If a
Redemption/ Distribution Notice shall have been given and funds
deposited as required, if applicable, then immediately prior to the
close of business on the date of such deposit, or on the redemption
date, as applicable, Distributions will cease to accumulate on the
Securities so called for redemption and all rights of Holders so
called for redemption will cease, except the right of the Holders of
such Securities to receive the Redemption Price, but without interest
on such Redemption Price, and such Securities shall cease to be
outstanding.
(iv) Payment of accumulated and unpaid Distributions on
the Redemption Date of the Securities will be subject to the rights of
Holders at the close of business on a regular record date in respect
of a Distribution Date occurring on or prior to such Redemption Date.
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Neither the Administrators nor the Trust shall be required to
register or cause to be registered the transfer of (i) any Securities beginning
at the opening of business 15 days before the day of mailing of a notice of
redemption or any notice of selection of Securities for redemption or (ii) any
Securities selected for redemption, except the unredeemed portion of any
Security being redeemed. If any date fixed for redemption of Securities is not
a Business Day, then payment of the 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
next succeeding Business Day falls in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day with the same
force and effect as if made on such date. If payment of the Redemption Price
with respect to any Securities is improperly withheld or refused and not paid
either by the Property Trustee or by the Sponsor as guarantor pursuant to the
relevant Securities Guarantee, Distributions on such Securities will continue
to accumulate from the original redemption date to the actual date of payment,
in which case the actual payment date will be considered the date fixed for
redemption for purposes of calculating the Redemption Price.
(v) Redemption/Distribution Notices shall be sent by the
Property Trustee on behalf of the Trust to (A) with respect to Capital
Securities issued in book-entry form, the Clearing Agency or its
nominee (or any successor Clearing Agency or its nominee), (B) with
respect to Capital Securities issued in certificated form, to the
Holders thereof, and (C) with respect to the Common Securities, to the
Holders thereof.
(vi) Subject to the foregoing and applicable law
(including, without limitation, United States federal securities laws
and banking laws), the Sponsor or any of its subsidiaries may at any
time and from time to time purchase outstanding Capital Securities by
tender, in the open market or by private agreement.
5. Voting Rights - Capital Securities.
(a) Except as provided under Sections 5(b) and 7 and as
otherwise required by law and the Trust Agreement, the Holders of the Capital
Securities will have no voting rights.
(b) So long as any Debentures are held by the Property
Trustee, the Trustees shall not (i) direct the time, method and place of
conducting any proceeding for any remedy available to the Debenture Trustee or
executing any trust or power conferred on such Debenture Trustee with respect
to the Debentures, (ii) waive any past default that is waivable under Section
5.07 of the Indenture, (iii) exercise any right to rescind or annul a
declaration of acceleration of the maturity of the principal of the Debentures
or (iv) consent to any amendment, modification or termination of the Indenture
or the 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 all outstanding Capital Securities; provided, however, that where a consent
under the Indenture would
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require the consent of each holder of Debentures affected thereby, no such
consent shall be given by the Property Trustee without the prior approval of
each Holder of the Capital Securities. The Trustees shall not revoke any action
previously authorized or approved by a vote of the Holders of the Capital
Securities except by subsequent vote of such Holders. The Property Trustee
shall notify each Holder of Capital Securities of any notice of default with
respect to the Debentures. In addition to obtaining the foregoing approvals of
such Holders of the Capital Securities, prior to taking any of the foregoing
actions, the Trustees shall obtain an opinion of counsel experienced in such
matters to the effect that the Trust will continue to be classified as a
grantor trust for United States federal income tax purposes after taking any
such action into account.
If an Event of Default under the Trust Agreement has occurred
and is continuing and such event is attributable to the failure of the
Debenture Issuer to pay principal of or interest on the Debentures on the due
date (or, in the case of redemption, on the redemption date), then a Holder of
Capital Securities may institute a proceeding directly against the Debenture
Issuer for enforcement of payment to such Holder of the principal of or
interest on a Like Amount of Debentures (a "Direct Action") on or after the
respective due date specified in the Debentures. In connection with such Direct
Action, the Common Securities Holder will be subordinated to the rights of such
Holder of Capital Securities to the extent of any payment made by the Debenture
Issuer to such Holder of Capital Securities in such Direct Action. Except as
provided in the second preceding sentence, or except as set forth in the first
sentence of Section 3.8(e) of the Trust Agreement, the Holders of Capital
Securities will not be able to exercise directly any other remedy available to
the holders of the Debentures.
Unless an Event of Default shall have occurred and be
continuing, any Trustee may be removed for cause at any time by vote of the
Holders of a Majority in Liquidation Amount of the Capital Securities voting as
a class at a meeting of the Holders of the Capital Securities. If a Debenture
Event of Default has occurred and is continuing, the Property Trustee and the
Delaware Trustee may be removed with or without cause by vote of Holders of a
Majority in Liquidation Amount of the Capital Securities voting as a class at a
meeting of Holders of the Capital Securities. In no event will the Holders of
the Capital Securities have the right to vote to appoint, remove or replace the
Administrators, which voting rights are vested exclusively in the Sponsor as
the Holder of the Common Securities. No resignation or removal of a Trustee
and no appointment of a successor trustee shall be effective until the
acceptance of appointment by the successor trustee in accordance with the
provisions of the Trust Agreement.
Any approval or direction of Holders of Capital Securities may
be given at a separate meeting of Holders of Capital Securities convened for
such purpose, at a meeting of all of the Holders of Securities in the Trust or
pursuant to written consent. The Property Trustee will cause a notice of any
meeting at which Holders of Capital Securities are entitled to vote to be
mailed to each Holder of record of Capital Securities. Each such notice will
include a statement setting forth (i) the date of such meeting or the date by
which such action is to be taken, (ii) a description of any resolution proposed
for adoption at such meeting on which such Holders are entitled to vote or of
such matter
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upon which written consent is sought and (iii) instructions for the delivery of
proxies or consent.
No vote or consent of the Holders of the Capital Securities
will be required for the Trust to redeem and cancel Capital Securities or to
distribute the Debentures in accordance with the Trust Agreement and the terms
of the Securities.
Notwithstanding that Holders of Capital Securities are
entitled to vote or consent under any of the circumstances described above, any
of the Capital Securities that are owned by the Sponsor or any Affiliate of the
Sponsor shall not be entitled to vote or consent and shall, for purposes of
such vote or consent, be treated as if they were not outstanding.
6. Voting Rights - Common Securities.
(a) Except as provided under Sections 6(b) and 7 or as
otherwise required by law and the Trust Agreement, the Holders of the Common
Securities will have no voting rights.
(b) So long as any Debentures are held by the Property
Trustee, the Trustees shall not (i) direct the time, method and place of
conducting any proceeding for any remedy available to the Debenture Trustee, or
executing any trust or power conferred on such Debenture Trustee with respect
to the Debentures, (ii) waive any past default that is waivable under Section
5.07 of the Indenture, (iii) exercise any right to rescind or annul a
declaration of acceleration of the maturity of the principal of the Debentures
or (iv) consent to any amendment, modification or termination of the Indenture
or the 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 all outstanding Common Securities; provided, however, that where a consent
under the Indenture would require the consent of each holder of Debentures
affected thereby, no such consent shall be given by the Property Trustee
without the prior approval of each Holder of the Common Securities. The
Trustees shall not revoke any action previously authorized or approved by a
vote of the Holders of the Common Securities except by subsequent vote of such
Holders. The Property Trustee shall notify each Holder of Common Securities of
any notice of default with respect to the Debentures. In addition to obtaining
the foregoing approvals of such Holders of the Common Securities, prior to
taking any of the foregoing actions, the Trustees shall obtain an opinion of
counsel experienced in such matters to the effect that the Trust will continue
to be classified as a grantor trust for United States federal income tax
purposes after taking any such action into account.
If an Event of Default under the Trust Agreement has occurred
and is continuing and such event is attributable to the failure of the
Debenture Issuer to pay principal of or interest on the Debentures on the due
date (or in the case of redemption, on the redemption date), then a Holder of
Common Securities may institute a Direct Action directly against the Debenture
Issuer for enforcement of payment to such Holder of the principal of or
interest on a Like Amount of Debentures on or after the respective due date
specified in the Debentures. In connection with such Direct Action, the rights
of
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the Common Securities Holder will be subordinated to the rights of Holders of
Capital Securities in respect of any payment from the Debenture Issuer in such
Direct Action. Except as provided in the second preceding sentence, the Holders
of Common Securities will not be able to exercise directly any other remedy
available to the holders of the Debentures.
Any approval or direction of Holders of Common Securities may
be given at a separate meeting of Holders of Common Securities convened for
such purpose, at a meeting of all of the Holders of Securities in the Trust or
pursuant to written consent. The Administrators will cause a notice of any
meeting at which Holders of Common Securities are entitled to vote, or of any
matter upon which action by written consent of such Holders is to be taken, to
be mailed to each Holder of record of Common Securities. Each such notice will
include a statement setting forth (i) the date of such meeting or the date by
which such action is to be taken, (ii) a description of any resolution proposed
for adoption at such meeting on which such Holders are entitled to vote or of
such matter upon which written consent is sought, and (iii) instructions for
the delivery of proxies or consents.
No vote or consent of the Holders of the Common Securities
will be required for the Trust to redeem and cancel Common Securities or to
distribute the Debentures in accordance with the Trust Agreement and the terms
of the Securities.
7. Amendments to Trust Agreement.
In addition to the requirements set out in Section 12.1 of the
Trust Agreement, the Trust Agreement may be amended from time to time by the
Sponsor, the Property Trustee and the Administrators without the consent of the
Holders to (i) cure any ambiguity, correct or supplement any provisions in the
Trust Agreement that may be inconsistent with any other provisions, or make any
other provisions with respect to matters or questions arising under the Trust
Agreement which shall not be inconsistent with the other provisions of the
Trust Agreement, (ii) modify, eliminate or add to any provisions of the Trust
Agreement to such extent as shall be necessary to ensure that the Trust will
not be classified as an association taxable as a corporation or to enable the
Trust to qualify as a grantor trust at all times that any Securities are
outstanding, in each case for U.S. federal income tax purposes or to ensure
that the Trust will not be required to register as an Investment Company under
the Investment Company Act; or (iii) modify, eliminate or add any provisions of
the Trust Agreement to such extent as shall be necessary to enable the Trust or
the Sponsor to conduct an Exchange Offer in the manner contemplated by the
Registration Rights Agreement; provided, however, that in each case (other than
an amendment pursuant to clause (ii) above), such action shall not adversely
affect in any material respect the interests of any Holder, and any such
amendments of the Trust Agreement shall become effective when notice thereof is
given to the Holders. The Trust Agreement may also be amended by the Trustees
and the Sponsor with (i) the consent of Holders representing a Majority in
Liquidation Amount of all outstanding Securities, and (ii) receipt by the
Trustees of an Opinion of Counsel to the effect that such amendment or the
exercise of any power granted to the Trustees in accordance with such amendment
will not affect the Trust's status as a grantor trust for United States federal
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income tax purposes or the Trust's exemption from status as an Investment
Company under the Investment Company Act; provided, however, that, without the
consent of each Holder of Trust Securities, the Trust Agreement may not be
amended to (i) change the amount or timing of any Distribution on, or the
payment required to be made in respect of, the Trust Securities as of a
specified date or (ii) restrict the right of a Holder of Trust Securities to
institute suit for the enforcement of any such payment on or after such date.
8. Pro Rata.
A reference in these terms of the Securities to any payment,
distribution or treatment as being "Pro Rata" shall mean pro rata to each
Holder according to the aggregate liquidation amount of the Securities held by
such Holder in relation to the aggregate liquidation amount of all Securities
outstanding unless, in relation to a payment, an Event of Default under the
Trust Agreement has occurred and is continuing, in which case any funds
available to make such payment shall be paid first to each Holder of the
Capital Securities pro rata according to the aggregate liquidation amount of
Capital Securities held by such Holder relative to the aggregate liquidation
amount of all Capital Securities outstanding and then, only after satisfaction
of all amounts owed to the Holders of the Capital Securities, to each Holder of
Common Securities pro rata according to the aggregate liquidation amount of
Common Securities held by such Holder relative to the aggregate liquidation
amount of all Common Securities outstanding.
9. Ranking.
The Capital Securities rank pari passu with the Common
Securities and payment thereon shall be made Pro Rata with the Common
Securities, except that, if an Event of Default under the Trust Agreement
occurs and is continuing, no payments in respect of Distributions on, or
payments upon liquidation, redemption or otherwise with respect to, the Common
Securities shall be made until the Holders of the Capital Securities shall be
paid in full, all Allocable Amounts due on or in respect of, the Distributions,
Redemption Price, Liquidation Distribution and any other payments to which they
are entitled at such time.
10. Acceptance of Capital Securities Guarantee, Indenture and
Debentures.
Each Holder of Capital Securities and Common Securities, by
the acceptance thereof, agrees to the provisions of the Capital Securities
Guarantee, the Indenture and the Debentures, as applicable, including the
subordination provisions therein.
11. No Preemptive Rights.
Neither the issuance of Capital Securities, nor the issuance
of Common Securities is subject to preemptive or other similar rights. The
Holders shall have no preemptive or similar rights to subscribe for any
additional securities.
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12. Miscellaneous.
These terms constitute a part of the Trust Agreement.
The Sponsor will provide a copy of the Trust Agreement, the
Capital Securities Guarantee or the Common Securities Guarantee, as applicable,
and the Indenture (including any supplemental indenture) to a Holder without
charge upon written request to the Trust at its principal place of business.
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EXHIBIT A-1
FORM OF CAPITAL SECURITY CERTIFICATE
[FORM OF FACE OF SECURITY]
[IF THIS CAPITAL SECURITY IS A GLOBAL CAPITAL SECURITY,
INSERT: THIS CAPITAL SECURITY IS A GLOBAL CAPITAL SECURITY WITHIN THE MEANING
OF THE TRUST AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF
THE DEPOSITORY TRUST COMPANY (THE "CLEARING AGENCY") OR A NOMINEE OF THE
CLEARING AGENCY. THIS CAPITAL SECURITY IS EXCHANGEABLE FOR CAPITAL SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE CLEARING AGENCY OR ITS
NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE TRUST AGREEMENT AND
NO TRANSFER OF THIS CAPITAL SECURITY (OTHER THAN A TRANSFER OF THIS CAPITAL
SECURITY AS A WHOLE BY THE CLEARING AGENCY TO A NOMINEE OF THE CLEARING AGENCY
OR BY A NOMINEE OF THE CLEARING AGENCY TO THE CLEARING AGENCY OR ANOTHER
NOMINEE OF THE CLEARING AGENCY) MAY BE REGISTERED EXCEPT IN LIMITED
CIRCUMSTANCES.
UNLESS THIS CAPITAL SECURITY IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE CLEARING AGENCY TO THE TRUST OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CAPITAL SECURITY ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE CLEARING AGENCY AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.]
THIS CAPITAL SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES LAW. NEITHER THIS CAPITAL
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS CAPITAL SECURITY BY ITS ACCEPTANCE HEREOF
AGREES TO OFFER, SELL OR OTHERWISE TRANSFER THIS CAPITAL SECURITY, PRIOR TO THE
DATE (THE "RESALE RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE
LATER OF THE
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ORIGINAL ISSUANCE DATE HEREOF AND THE LAST DATE ON WHICH CNB FINANCIAL CORP.
(THE "CORPORATION") OR ANY "AFFILIATE" OF THE CORPORATION WAS THE OWNER OF THIS
CAPITAL SECURITY (OR ANY PREDECESSOR OF THIS CAPITAL SECURITY) ONLY (A) TO THE
CORPORATION, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) SO LONG AS THIS CAPITAL SECURITY IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER"
(AS DEFINED IN RULE 144A) THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (D) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (A)(1), (2), (3) OR (7) OF RULE
501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS CAPITAL SECURITY FOR ITS
OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR,
FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN
CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR (E)
PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
UNDER THE SECURITIES ACT, SUBJECT TO THE RIGHT OF CNBF CAPITAL TRUST I (THE
"TRUST") AND THE CORPORATION PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i)
PURSUANT TO CLAUSE (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (ii)
PURSUANT TO CLAUSE (D) TO REQUIRE THAT THE TRANSFEROR DELIVER TO THE TRUST A
LETTER FROM THE TRANSFEREE SUBSTANTIALLY IN THE FORM OF ANNEX A TO THE OFFERING
MEMORANDUM DATED AUGUST 4, 1999. SUCH HOLDER FURTHER AGREES THAT IT WILL
DELIVER TO EACH PERSON TO WHOM THIS CAPITAL SECURITY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
THE HOLDER OF THIS CAPITAL SECURITY BY ITS ACCEPTANCE HEREOF
ALSO AGREES, REPRESENTS AND WARRANTS THAT: (A) THE PURCHASE AND HOLDING OF THE
CAPITAL SECURITIES IS COVERED BY THE EXEMPTIVE RELIEF PROVIDED BY PTCE 96-23,
95-60, 91-38, 90-1 OR 84-14 OR ANOTHER APPLICABLE EXEMPTION, (B) CNB AND THE
ADMINISTRATORS ARE NOT "FIDUCIARIES" WITHIN THE MEANING OF SECTION 3(21) OF
ERISA AND THE REGULATIONS THEREUNDER, WITH RESPECT TO SUCH PERSON'S INTEREST IN
THE CAPITAL SECURITIES OR THE JUNIOR SUBORDINATED DEFERRABLE INTEREST
DEBENTURES, AND (C) IN PURCHASING THE CAPITAL SECURITIES SUCH PERSON APPROVES
THE PURCHASE OF THE JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURES AND THE
APPOINTMENT OF THE PROPERTY TRUSTEE AND THE DELAWARE TRUSTEE.
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THE CAPITAL SECURITIES WILL BE ISSUED AND MAY BE TRANSFERRED
ONLY IN BLOCKS HAVING A LIQUIDATION AMOUNT OF NOT LESS THAN $100,000 (100
CAPITAL SECURITIES) AND MULTIPLES OF $1,000 IN EXCESS THEREOF. ANY ATTEMPTED
TRANSFER OF CAPITAL SECURITIES IN A BLOCK HAVING A LIQUIDATION AMOUNT OF LESS
THAN $100,000 (100 CAPITAL SECURITIES) SHALL BE DEEMED TO BE VOID AND OF NO
LEGAL EFFECT WHATSOEVER. ANY SUCH PURPORTED TRANSFEREE SHALL BE DEEMED NOT TO
BE THE HOLDER OF SUCH CAPITAL SECURITIES FOR ANY PURPOSE, INCLUDING, BUT NOT
LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON SUCH CAPITAL SECURITIES, AND SUCH
PURPORTED TRANSFEREE SHALL BE DEEMED TO HAVE NO INTEREST WHATSOEVER IN SUCH
CAPITAL SECURITIES.
THE HOLDER OF THIS CAPITAL SECURITY BY ITS ACCEPTANCE HEREOF
IS DEEMED TO HAVE AGREED TO BE BOUND BY THE PROVISIONS OF A REGISTRATION RIGHTS
AGREEMENT AMONG CNB FINANCIAL CORP., CNBF CAPITAL TRUST I, AND XXXX, XXXX &
CO., INC., DATED AUGUST 6, 1999 (THE "REGISTRATION RIGHTS AGREEMENT"). CNB
FINANCIAL CORP. WILL PROVIDE A COPY OF THE REGISTRATION RIGHTS AGREEMENT TO A
HOLDER WITHOUT CHARGE UPON WRITTEN REQUEST TO CNBF CAPITAL TRUST I AT ITS
PRINCIPAL PLACE OF BUSINESS.
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Certificate Number: 1 Aggregate Liquidation
Amount: $18,000,000
CUSIP Number:00000XXX0
Certificate Evidencing Capital Securities
Of
CNBF CAPITAL TRUST I
Floating Rate Capital Securities, Series A
(liquidation amount $1,000 per Capital Security)
CNBF Capital Trust I, a statutory business trust created under
the laws of the State of Delaware (the "Trust"), hereby certifies that Cede &
Co. (the "Holder") is the registered owner of $18,000,000 in aggregate
liquidation amount of Capital Securities of the Trust](1) [the aggregate
liquidation amount of Capital Securities of the Trust specified in Schedule A
hereto](2) representing undivided preferred beneficial interests in the assets
of the Trust designated the Floating Rate Capital Securities, Series A
(liquidation amount $1,000 per Capital Security) (the "Capital Securities").
The Capital Securities are transferable on the books and records of the Trust,
in person or by a duly authorized attorney, upon surrender of this certificate
duly endorsed and in proper form for transfer. The designation, rights,
privileges, restrictions, preferences and other terms and provisions of the
Capital Securities represented hereby are issued and shall in all respects be
subject to the provisions of the Amended and Restated Trust Agreement of the
Trust, dated as of August 6, 1999, as the same may be amended from time to time
(the "Trust Agreement"), including the designation of the terms of the Capital
Securities as set forth in Annex I to the Trust Agreement. Capitalized terms
used but not defined herein shall have the meaning given them in the Trust
Agreement. The Sponsor will provide a copy of the Trust Agreement, the Series A
Capital Securities Guarantee and the Indenture (including any supplemental
indenture) to a Holder without charge upon written request to the 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 and to the benefits
of the Series A Capital Securities Guarantee to the extent provided therein.
By acceptance hereof, the Holder agrees, for United States
federal income tax purposes, to treat the Debentures as indebtedness and the
Capital Securities as evidence of indirect beneficial ownership in the
Debentures.
--------------------
(1) Insert in Definitive Capital Security only.
(2) Insert in Global Capital Securities only.
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IN WITNESS WHEREOF, the Trust has executed this certificate this 6th day of
August, 1999.
CNBF CAPITAL TRUST I
By:
-------------------------------------
Xxxxx X. Xxxxx
Administrator
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Floating Rate Capital Securities, Series A of CNBF
CAPITAL TRUST I referred to in the within-mentioned Trust Agreement.
Dated: August 6, 1999
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Property Trustee
By:
-------------------------------------
Authorized Signatory
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[FORM OF REVERSE OF SECURITY]
Distributions on each Capital Security will be payable at a
rate per annum, reset quarterly, equal to 3-month LIBOR (as defined in the
Trust Agreement) plus 275 basis points (the "Coupon Rate"), such rate being the
rate of interest payable on the Debentures to be held by the Property Trustee.
Distributions in arrears for more than one quarterly period will bear interest
thereon compounded quarterly at the Coupon Rate (to the extent permitted by
applicable law). Pursuant to the Registration Rights Agreement, in certain
limited circumstances the Debenture Issuer will be required to pay Liquidated
Damages (as defined in the Registration Rights Agreement) with respect to the
Debentures. The term "Distributions," as used herein, includes such cash
distributions and any and all such interest and Liquidated Damages, if any,
payable unless otherwise stated. A Distribution is payable only to the extent
that payments are made in respect of the Debentures held by the Property
Trustee and to the extent the Property Trustee has funds legally available
therefor.
Distributions on the Capital Securities will be cumulative,
will accumulate from the most recent date to which Distributions have been paid
or, if no Distributions have been paid, from August 6, 1999 and will be payable
quarterly in arrears, on March 31, June 30, September 30 and December 31 of
each year, commencing September 30, 1999, except as otherwise described below.
Distributions will be computed on the basis of the actual number of days
elapsed in such period and a 360-day year. As long as no Event of Default has
occurred and is continuing under the Indenture, the Debenture Issuer has the
right under the Indenture to defer payments of interest by extending the
interest payment period at any time and from time to time on the Debentures for
a period not exceeding 20 consecutive calendar quarterly periods, including the
first such quarterly period during such extension period (each an "Extension
Period"), provided that no Extension Period shall end on a date other than an
Interest Payment Date for the Debentures or extend beyond the Maturity Date of
the Debentures. As a consequence of such deferral, Distributions will also be
deferred. Notwithstanding such deferral, quarterly Distributions will continue
to accumulate with interest thereon (to the extent permitted by applicable law,
but not at a rate exceeding the rate of interest then accruing on the
Debentures) at the applicable periodic Coupon Rate compounded quarterly during
any such Extension Period. Prior to the termination of any Extension Period,
the Debenture Issuer may further defer payments of interest by further
extending such Extension Period; provided that such Extension Period, together
with all such previous and further extensions within such Extension Period, may
not (i) exceed 20 consecutive quarterly periods, including the first quarterly
period during such Extension Period, (ii) end on a date other than an Interest
Payment Date for the Debentures or (iii) extend beyond the Maturity Date of the
Debentures. Payments of accumulated Distributions will be payable to Holders as
they appear on the books and records of the Trust on the record date
immediately preceding the end of the Extension Period. Upon the termination of
any Extension Period and the payment of all amounts then due, the Debenture
Issuer may commence a new Extension Period, subject to the above requirements.
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Subject to receipt by the Sponsor of any and all required
regulatory approvals and to certain other conditions set forth in the Trust
Agreement and the Indenture, the Property Trustee may, at the direction of the
Sponsor, at any time dissolve the Trust and after satisfaction of liabilities
to creditors of the Trust as provided by applicable law, cause the Debentures
to be distributed to the Holders of the Securities in liquidation of the Trust
or, simultaneously with any redemption of the Debentures, cause a Like Amount
of the Securities to be redeemed by the Trust.
The Capital Securities shall be redeemable as provided in the
Trust Agreement.
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-----------------------------
ASSIGNMENT
-----------------------------
FOR VALUE RECEIVED, the undersigned hereby assigns and transfers this Capital
Security Certificate to:
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
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(Assignee's social security or tax identification number)
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(Address and zip code of assignee)
and irrevocably appoints
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
agent
--------------------------------------------------------------------------
to transfer this Capital Security Certificate on the books of the Trust. The
agent may substitute another to act for him or her.
Date:
Signature:
(Sign exactly as your name appears on the other side of this Capital Security
Certificate)
Signature Guarantee:
---------------------------------------------------------
----------------------------
Signature must be guaranteed by an ''eligible guarantor
institution" that is a bank, stockbroker, savings and loan
association or credit union meeting the requirements of the
Registrar, which requirements include membership or
participation in the Securities Transfer Agents Medallion
Program ("STAMP") or such other "signature guarantee program"
as may be determined by the Registrar in addition to, or in
substitution for, STAMP, all in accordance with the Securities
Exchange Act of 1934, as amended.
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[INCLUDE THE FOLLOWING IF THE CAPITAL SECURITY BEARS A RESTRICTED SECURITIES
LEGEND]
In connection with any transfer of any of the Capital Securities evidenced by
this Certificate, the undersigned confirms that such Capital Securities are
being:
CHECK ONE BOX BELOW
(1) [ ] exchanged for the undersigned's own account without
transfer; or
(2) [ ] transferred pursuant to and in compliance with Rule
144A under the Securities Act of 1933, as amended; or
(3) [ ] transferred to an institutional "accredited investor"
within the meaning of subparagraph (a)(1), (2), (3)
or (7) of Rule 501 under the Securities Act of 1933,
as amended, that is acquiring the Capital Securities
for its own account, or for the account of such an
institutional "accredited investor," for investment
purposes and not with a view to, or for offer or sale
in connection with, any distribution in violation of
the Securities Act of 1933, as amended; or
(4) [ ] transferred pursuant to another available exemption
from the registration requirements of the Securities
Act of 1933, as amended; or
(5) [ ] transferred pursuant to an effective registration
statement.
Unless one of the boxes is checked, the Registrar will refuse to register any
of the Capital Securities evidenced by this Certificate in the name of any
Person other than the Holder hereof; provided, however, that if box (3) or (4)
is checked, the Registrar may require, prior to registering any such transfer
of the Capital Securities, such legal opinions, certifications and other
information as the Trust has reasonably requested to confirm that such transfer
is being made pursuant to an exemption from, or in a transaction not subject
to, the registration requirements of the Securities Act of 1933, as amended,
such as the exemption provided by Rule 144 under such Act; provided, further,
that (i) if box (2) is checked, by acceptance of this Certificate, the
transferee shall be deemed to have certified that it is a "qualified
institutional buyer" (as defined in Rule 144A) ("QIB") acquiring the Capital
Securities for its own account or for the account of another QIB over which it
exercises sole investment discretion and that it is aware that the Holder is
relying upon the exemption from registration afforded by Rule144A in respect of
the Holder's transfer of Capital Securities to it or (ii) if box (3) is
checked, the transferee must also provide to the Registrar a Transferee Letter
of Representation in the form attached to the Offering Memorandum of the Trust
dated August 4, 1999; provided, further, that after the date that a
registration statement has been filed and so long as such Registration
Statement continues to be effective, only then may the Registrar permit
transfers for which box (5) has been checked.
----------------------------
Signature
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EXHIBIT A-2
FORM OF COMMON SECURITY CERTIFICATE
THIS COMMON SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR ANY
OTHER APPLICABLE SECURITIES LAW. NEITHER THIS COMMON SECURITY NOR ANY INTEREST
OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS COMMON SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER THIS COMMON SECURITY, PRIOR TO THE DATE (THE
"RESALE RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF
THE ORIGINAL ISSUANCE DATE HEREOF AND THE LAST DATE ON WHICH CNB FINANCIAL
CORP. (THE "CORPORATION") OR ANY "AFFILIATE" OF THE CORPORATION WAS THE OWNER
OF THIS COMMON SECURITY (OR ANY PREDECESSOR OF THIS COMMON SECURITY) ONLY (A)
TO THE CORPORATION, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) SO LONG AS THIS COMMON
SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT
("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A) THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) TO AN INSTITUTIONAL
"ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (A)(1), (2), (3) OR
(7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS COMMON SECURITY
FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED
INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE
IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (E)
PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
UNDER THE SECURITIES ACT, SUBJECT TO THE RIGHT OF CNBF CAPITAL TRUST I (THE
"TRUST") AND THE CORPORATION PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i)
PURSUANT TO CLAUSE (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (ii)
PURSUANT TO CLAUSE (D) TO REQUIRE THAT TRANSFEROR DELIVER TO THE TRUST A LETTER
FROM THE TRANSFEREE SUBSTANTIALLY IN THE FORM OF ANNEX A TO THE OFFERING
MEMORANDUM DATED AUGUST 4, 1999. SUCH HOLDER FURTHER AGREES THAT IT WILL
DELIVER TO EACH PERSON TO WHOM THIS COMMON SECURITY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
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Certificate Evidencing Common Securities
of
CNBF CAPITAL TRUST I
Floating Rate Common Securities
(liquidation amount $1,000 per Common Security)
CNBF CAPITAL TRUST I, a statutory business trust created under
the laws of the State of Delaware (the "Trust"), hereby certifies that CNB
Financial Corp. (the "Holder") is the registered owner of 720 common securities
of the Trust representing undivided beneficial interests in the assets of the
Trust designated the Floating Rate Common Securities (liquidation amount $1,000
per Common Security) (the "Common Securities"). Subject to the terms of the
Trust Agreement (as defined below), the Common Securities are transferable on
the books and records of the Trust, in person or by a duly authorized attorney,
upon surrender of this Certificate duly endorsed and in proper form for
transfer. The designation, rights, privileges, restrictions, preferences and
other terms and provisions of the Common Securities represented hereby are
issued and shall in all respects be subject to the provisions of the Amended
and Restated Trust Agreement of the Trust dated as of August 6, 1999, as the
same may be amended from time to time (the "Trust Agreement"), including the
designation of the terms of the Common Securities as set forth in Annex I to
the Trust Agreement. Capitalized terms used but not defined herein shall have
the meaning given them in the Trust Agreement. The Sponsor will provide a copy
of the Trust Agreement, the Common Securities Guarantee and the Indenture
(including any supplemental indenture) to a Holder without charge upon written
request to the 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 and to the benefits
of the Common Securities Guarantee to the extent provided therein.
By acceptance thereof, the Holder agrees to treat, for United
States federal income tax purposes, the Debentures as indebtedness and the
Common Securities as evidence of indirect beneficial ownership in the
Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate
this 6th day of August, 1999.
CNBF CAPITAL TRUST I
By:
-------------------------------------
Xxxxx X. Xxxxx
Administrator
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[FORM OF REVERSE OF SECURITY]
Distributions on each Common Security will be payable at a
rate per annum, reset quarterly, equal to 3-month LIBOR (as defined in the
Trust Agreement) plus 275 basis points (the "Coupon Rate"), such rate being the
rate of interest payable on the Debentures to be held by the Property Trustee.
Distributions in arrears for more than one quarterly period will bear interest
thereon compounded quarterly at the Coupon Rate (to the extent permitted by
applicable law). Pursuant to the Registration Rights Agreement, in certain
limited circumstances the Debenture Issuer will be required to pay Liquidated
Damages (as defined in the Registration Rights Agreement) with respect to the
Debentures. The term "Distributions", as used herein, includes such cash
distributions and any and all such interest and Liquidated Damages, if any,
payable unless otherwise stated. A Distribution is payable only to the extent
that payments are made in respect of the Debentures held by the Property
Trustee and to the extent the Property Trustee has funds legally available
therefor.
Distributions on the Common Securities will be cumulative,
will accrue from the most recent date to which Distributions have been paid or,
if no Distributions have been paid, from August 6, 1999 and will be payable
quarterly in arrears, on March 31, June 30, September 30 and December 31, of
each year, commencing June 30, 1999, except as otherwise described below.
Distributions will be computed on the basis of the actual number of days
elapsed in such period and a 360-day year. As long as no Event of Default has
occurred and is continuing under the Indenture, the Debenture Issuer has the
right under the Indenture to defer payments of interest by extending the
interest payment period at any time and from time to time on the Debentures for
a period not exceeding 20 consecutive calendar quarterly periods, including the
first such quarterly period during such extension period (each an "Extension
Period"), provided that no Extension Period shall end on a date other than an
Interest Payment Date for the Debentures or extend beyond the Maturity Date of
the Debentures. As a consequence of such deferral, Distributions will also be
deferred. Notwithstanding such deferral, quarterly Distributions will continue
to accumulate with interest thereon (to the extent permitted by applicable law,
but not at a rate exceeding the rate of interest then accruing on the
Debentures) at the applicable periodic Coupon Rate compounded quarterly during
any such Extension Period. Prior to the termination of any Extension Period,
the Debenture Issuer may further defer payments of interest by further
extending such Extension Period; provided that such Extension Period, together
with all such previous and further extensions within such Extension Period, may
not (i) exceed 20 consecutive quarterly periods, including the first quarterly
period during such Extension Period, (ii) end on a date other than an Interest
Payment Date for the Debentures or (iii) extend beyond the Maturity Date of the
Debentures. Payments of accrued Distributions will be payable to Holders as
they appear on the books and records of the Trust on the record date
immediately preceding the end of the Extension Period. Upon the termination of
any Extension Period and the payment of all amounts then due, the Debenture
Issuer may commence a new Extension Period, subject to the above requirements.
Subject to the receipt by the Sponsor of any and all required
regulatory approvals and to certain other conditions set forth in the Trust
Agreement and the Indenture, the Property Trustee may, at the direction of the
Sponsor, at any time dissolve the Trust and cause the Debentures to be
distributed to the Holders of the Securities in liquidation of the Trust or,
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103
simultaneously with any redemption of the Debentures, cause a Like Amount of
the Securities to be redeemed by the Trust.
The Common Securities shall be redeemable as provided in the
Trust Agreement.
Under certain circumstances, the rights of the holders of the
Common Securities shall be subordinate to the rights of the holders of the
Capital Securities, as provided in the Trust Agreement.
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