AMENDED AND RESTATED
TRUST AGREEMENT
Among
FLORIDA COMMUNITY BANKS, INC.
as Depositor,
WILMINGTON TRUST COMPANY
as Property Trustee,
WILMINGTON TRUST COMPANY,
as Delaware Trustee, and
Xxxxxxx X. Xxxxx,
and
Xxxxxx X. Xxxxxxxx,
as Administrators
Dated as of June 21, 2002
---------------------------
FCBI CAPITAL TRUST I
---------------------------
FCBI CAPITAL TRUST I
Certain Sections of this Trust
Agreement relating to Sections
310 through 318 of the Trust
Indenture Act of 1939:
Trust Indenture Act Section Trust Agreement Section
Section 310 (a)(1).......................................................8.7
(a)(2).......................................................8.7
(a)(3).......................................................8.9
(a)(4)................................................2.7(a)(ii)
(b)................................................8.8, 10.10(b)
Section 311 (a)...............................................8.13, 10.10(b)
(b)...............................................8.13, 10.10(b)
Section 312 (a).....................................................10.10(b)
(b)................................................10.10(b), (f)
(c)..........................................................5.7
Section 313 (a)......................................................8.15(a)
(a)(4)..................................................10.10(c)
(b)............................................8.15(c), 10.10(c)
(c)...............................................10.8, 10.10(c)
(d).....................................................10.10(c)
Section 314 (a)...............................................8.16, 10.10(d)
(b)...............................................Not Applicable
(c)(1).......................................8.17, 10.10(d), (e)
(c)(2).......................................8.17, 10.10(d), (e)
(c)(3).......................................8.17, 10.10(d), (e)
(e)...............................................8.17, 10.10(e)
Section 315 (a).......................................................8.1(d)
(b)..........................................................8.2
(c).......................................................8.1(c)
(d).......................................................8.1(d)
(e)...............................................Not Applicable
Section 316 (a)...............................................Not Applicable
(a)(1)(A).........................................Not Applicable
(a)(1)(B).........................................Not Applicable
(a)(2)............................................Not Applicable
(b).........................................................5.13
(c)..........................................................6.7
Section 317 (a)(1)............................................Not Applicable
(a)(2)......................................................8.14
(b).........................................................5.10
Section 318 (a).....................................................10.10(a)
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Trust Agreement.
TABLE OF CONTENTS
Page
ARTICLE I DEFINED TERMS....................................................................................1
SECTION 1.1. Definitions......................................................................................1
ARTICLE II CONTINUATION OF THE ISSUER TRUST................................................................12
SECTION 2.1. Name............................................................................................12
SECTION 2.2. Office of the Delaware Trustee; Principal Place of Business.....................................12
SECTION 2.3. Initial Contribution of Trust Property; Organizational Expenses.................................13
SECTION 2.4. Issuance of the Restricted Capital Securities...................................................13
SECTION 2.5. Issuance of the Common Securities; Subscription and Purchase of Junior Subordinated Debentures..13
SECTION 2.6. Declaration of Trust............................................................................13
SECTION 2.7. Authorization to Enter into Certain Transactions................................................14
SECTION 2.8. Assets of Trust.................................................................................17
SECTION 2.9. Title to Trust Property.........................................................................17
ARTICLE III PAYMENT ACCOUNT.................................................................................17
SECTION 3.1. Payment Account.................................................................................17
ARTICLE IV DISTRIBUTIONS; REDEMPTION.......................................................................18
SECTION 4.1. Distributions...................................................................................18
SECTION 4.2. Redemption......................................................................................19
SECTION 4.3. Subordination of Common Securities..............................................................21
SECTION 4.4. Payment Procedures..............................................................................22
SECTION 4.5. Tax Returns and Reports.........................................................................22
SECTION 4.6. Payment of Taxes, Duties, Etc. of the Issuer Trust..............................................23
SECTION 4.7. Payments under Indenture or Pursuant to Direct Actions..........................................23
SECTION 4.8. Liability of the Holder of Common Securities....................................................23
ARTICLE V TRUST SECURITIES CERTIFICATES...................................................................23
SECTION 5.1. Initial Ownership...............................................................................23
SECTION 5.2. The Trust Securities Certificates...............................................................23
SECTION 5.3. Execution and Delivery of Trust Securities Certificates.........................................24
SECTION 5.4. Global Capital Securities.......................................................................24
SECTION 5.5. Registration of Transfer and Exchange Generally; Certain Transfers and Exchanges;
Capital Securities Certificates; Securities Act Legends.........................................26
SECTION 5.6. Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates..............................29
SECTION 5.7. Persons Deemed Holders..........................................................................30
SECTION 5.8. Access to List of Holders' Names and Addresses..................................................30
SECTION 5.9. Maintenance of Office or Agency.................................................................30
SECTION 5.10. Appointment of Paying Agent.....................................................................30
SECTION 5.11. Ownership of Common Securities by Depositor.....................................................31
SECTION 5.12. Notices to Clearing Agency......................................................................31
SECTION 5.13. Rights of Holders...............................................................................31
ARTICLE VI ACTS OF HOLDERS; MEETINGS; VOTING...............................................................34
SECTION 6.1. Limitations on Holders' Voting Rights...........................................................34
SECTION 6.2. Notice of Meetings..............................................................................35
SECTION 6.3. Meetings of Holders.............................................................................35
SECTION 6.4. Voting Rights...................................................................................35
SECTION 6.5. Proxies, etc....................................................................................35
SECTION 6.6. Holder Action by Written Consent................................................................36
SECTION 6.7. Record Date for Voting and Other Purposes.......................................................36
SECTION 6.8. Acts of Holders.................................................................................36
SECTION 6.9. Inspection of Records...........................................................................37
ARTICLE VII REPRESENTATIONS AND WARRANTIES..................................................................37
SECTION 7.1. Representations and Warranties of the Property Trustee and the Delaware Trustee.................37
SECTION 7.2. Representations and Warranties of Depositor.....................................................39
ARTICLE VIII THE ISSUER TRUSTEES; THE ADMINISTRATORS.........................................................39
SECTION 8.1. Certain Duties and Responsibilities.............................................................39
SECTION 8.2. Certain Notices.................................................................................41
SECTION 8.3. Certain Rights of Property Trustee..............................................................42
SECTION 8.4. Not Responsible for Recitals or Issuance of Securities..........................................43
SECTION 8.5. May Hold Securities.............................................................................43
SECTION 8.6. Compensation; Indemnity; Fees...................................................................44
SECTION 8.7. Corporate Property Trustee Required; Eligibility of Trustees and Administrators.................45
SECTION 8.8. Conflicting Interests...........................................................................45
SECTION 8.9. Co-Trustees and Separate Trustee................................................................45
SECTION 8.10. Resignation and Removal; Appointment of Successor...............................................47
SECTION 8.11. Acceptance of Appointment by Successor..........................................................48
SECTION 8.12. Merger, Conversion, Consolidation or Succession to Business.....................................49
SECTION 8.13. Preferential Collection of Claims Against Depositor or Issuer Trust.............................49
SECTION 8.14. Trustee May File Proofs of Claim................................................................49
SECTION 8.15. Reports by Property Trustee.....................................................................50
SECTION 8.16. Reports to the Property Trustee.................................................................50
SECTION 8.17. Evidence of Compliance with Conditions Precedent................................................50
SECTION 8.18. Number of Issuer Trustees.......................................................................51
SECTION 8.19. Delegation of Power.............................................................................51
SECTION 8.20. Appointment of Administrators...................................................................51
ARTICLE IX DISSOLUTION, LIQUIDATION AND MERGER.............................................................52
SECTION 9.1. Dissolution Upon Expiration Date................................................................52
SECTION 9.2. Early Dissolution...............................................................................52
SECTION 9.3. Termination.....................................................................................53
SECTION 9.4. Liquidation.....................................................................................53
SECTION 9.5. Mergers, Consolidations, Amalgamations or Replacements of the Issuer Trust......................54
ARTICLE X MISCELLANEOUS PROVISIONS........................................................................55
SECTION 10.1. Limitation of Rights of Holders.................................................................55
SECTION 10.2. Amendment.......................................................................................56
SECTION 10.3. Separability....................................................................................57
SECTION 10.4. Governing Law...................................................................................57
SECTION 10.5. Payments Due on Non-Business Day................................................................58
SECTION 10.6. Successors......................................................................................58
SECTION 10.7. Headings........................................................................................58
SECTION 10.8. Reports, Notices and Demands....................................................................58
SECTION 10.9. Agreement Not to Petition.......................................................................59
SECTION 10.10. Trust Indenture Act; Conflict with Trust Indenture Act..........................................59
SECTION 10.11. Acceptance of Terms of Trust Agreement, Guarantee and Indenture.................................60
Exhibit A Certificate of Trust
Exhibit B Form of Restricted Securities Certificate
Exhibit C Form of Common Securities Certificate
Exhibit D Form of Capital Securities Certificate
Exhibit E Form of Placement Agreement
AMENDED AND RESTATED TRUST AGREEMENT
THIS AMENDED AND RESTATED TRUST AGREEMENT, dated as of June 21, 2002, is by
and among (i) Florida Community Banks, Inc., a Florida corporation (including
any successors or assigns, the "Depositor"), (ii) Wilmington Trust Company, a
Delaware banking corporation, as property trustee (in such capacity, the
"Property Trustee" and, in its separate corporate capacity and not in its
capacity as Property Trustee or Delaware Trustee, the "Bank"), (iii) Wilmington
Trust Company, a Delaware banking corporation, as Delaware trustee (in such
capacity, the "Delaware Trustee") (the Property Trustee and the Delaware Trustee
are referred to collectively herein as the "Issuer Trustees"), (iv) the
Administrators, as hereinafter defined, and (v) the several Holders, as
hereinafter defined.
WITNESSETH
WHEREAS, the Depositor and the Delaware Trustee have heretofore duly
declared and established a business trust pursuant to the Delaware Business
Trust Act by entering into a certain Trust Agreement, dated as of June 5, 2002
(the "Original Trust Agreement"), and by the execution and filing by the
Delaware Trustee with the Secretary of State of the State of Delaware of the
Certificate of Trust, filed on June 5, 2002 (the "Certificate of Trust"),
attached as Exhibit A; and
WHEREAS, the Depositor and the Delaware Trustee desire to amend and restate
the Original Trust Agreement in its entirety as set forth herein to provide for,
among other things, (i) the issuance of the Common Securities by the Issuer
Trust to the Depositor, (ii) the issuance and sale of the Capital Securities by
the Issuer Trust pursuant to the Placement Agent Agreement, (iii) the
acquisition by the Issuer Trust from the Depositor of all of the right, title
and interest in the Junior Subordinated Debentures, (iv) the appointment of the
Administrators and (v) the addition of the Property Trustee as a party to this
Trust Agreement.
NOW THEREFORE, in consideration of the agreements and obligations set forth
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each party, intending to be
legally bound, for the benefit of the other parties and for the benefit of the
Holders, hereby amends and restates the Original Trust Agreement in its entirety
and agrees, as follows:
ARTICLE I
DEFINED TERMS
SECTION 1.1. Definitions.
For all purposes of this Trust Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(1)The terms defined in this Article have the meanings assigned to them in
this Article and include the plural as well as the singular;
(2)All other terms used herein that are defined in the Trust Indenture Act,
either directly or by reference therein, have the meanings assigned to them
therein;
(3)The words "include," "includes" and "including" shall be deemed to be
followed by the phrase "without limitation";
(4)All accounting terms used but not defined herein have the meanings
assigned to them in accordance with United States generally accepted accounting
principles as in effect at the time of determination;
(5)Unless the context otherwise requires, any reference to an "Article" or
a "Section" refers to an Article or a Section, as the case may be, of this Trust
Agreement;
(6)The words "herein," "hereof" and "hereunder" and other words of similar
import refer to this Trust Agreement as a whole and not to any particular
Article, Section or other subdivision; and
(7)All references to the date the Capital Securities were originally issued
shall refer to the date hereof.
"Act" has the meaning specified in Section 6.8.
"Additional Amounts" means, with respect to Trust Securities of a given
Liquidation Amount and/or a given period, the amount of any Additional Interest
(as defined in the Indenture) paid by the Depositor on a Like Amount of Junior
Subordinated Debentures for such period.
"Additional Sums" has the meaning specified in Section 10.6 of the
Indenture.
"Administrators" means each Person appointed in accordance with Section
8.20 solely in such Person's capacity as Administrator of the Issuer Trust
continued hereunder and not in such Person's individual capacity, or any
successor Administrator appointed as herein provided; with the initial
Administrators being Xxxxxxx X. Xxxxx and Xxxxxx X. Xxxxxxxx.
"Affiliate" means with respect to any specified Person, any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Applicable Procedures" mean, with respect to any transfer or transaction
involving a Global Capital Security or beneficial interest therein, the rules
and procedures of the Depositary for such Capital Security, in each case to the
extent applicable to such transaction and as in effect from time to time.
2
"Bank" has the meaning specified in the preamble to this Trust
Agreement.
"Bankruptcy Event" means, with respect to any Person:
(1) the entry of a decree or order by a court having jurisdiction in the
premises judging such Person a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjudication or
composition of or in respect of such Person under any applicable Federal or
state bankruptcy, insolvency, reorganization or other similar law, or appointing
a receiver, conservator, liquidator, assignee, trustee, sequestrator (or other
similar official) of such Person or of any substantial part of its property or
ordering the winding-up or liquidation of its affairs, and the continuance of
any such decree or order unstayed and in effect for a period of 60 consecutive
days; or
(2) the institution by such Person of proceedings to be adjudicated a
bankrupt or insolvent, or the consent by it to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under any applicable Federal or
state bankruptcy, insolvency, reorganization or other similar law, or the
consent by it to the filing of any such petition or to the appointment of a
receiver, conservator, liquidator, assignee, trustee, sequestrator (or similar
official) of such Person or of any substantial part of its property or the
making by it of an assignment for the benefit of creditors, or the admission by
it in writing of its inability to pay its debts generally as they become due and
its willingness to be adjudicated a bankrupt, or the taking of corporate action
by such Person in furtherance of any such action.
"Bankruptcy Laws" has the meaning specified in Section 10.9.
"Board of Directors" means the board of directors of the Depositor or the
Executive Committee of the board of directors of the Depositor (or any other
committee of the board of directors of the Depositor performing similar
functions) or a committee designated by the board of directors of the Depositor
(or any such committee), comprised of two or more members of the board of
directors of the Depositor or officers of the Depositor, or both.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Depositor to have been duly adopted by the
Depositor's Board of Directors, or such committee of the Board of Directors or
officers of the Depositor to which authority to act on behalf of the Board of
Directors has been delegated, and to be in full force and effect on the date of
such certification, and delivered to the Issuer Trustees.
"Business Day" means a day other than (a) a Saturday or Sunday, (b) a day
on which banking institutions in the City of New York, New York or the City of
Wilmington, Delaware are authorized or required by law or executive order to
remain closed or (c) a day on which either the Property Trustee's corporate
trust office or the Indenture Trustee's corporate trust office is closed for
business.
3
"Capital Securities Certificate" means a certificate evidencing ownership
of Capital Securities, substantially in the form attached as Exhibit D, and
shall, unless specified otherwise herein, include a Restricted Securities
Certificate, substantially in the form attached hereto as Exhibit B. The Capital
Securities Certificate shall be issued initially with a Restricted Capital
Securities Legend, which shall remain on such certificate until the Depositor
and the Issuer Trust receive an Opinion of Counsel that such legend can be
removed consistent with the Securities Act.
"Capital Security" means a preferred undivided beneficial interest in the
assets of the Issuer Trust, having a Liquidation Amount of $50,000.00 or an
integral multiple in excess of such amount and having the rights provided
therefor in this Trust Agreement, including the right to receive Distributions
and a Liquidation Distribution as provided herein.
"Capital Treatment Event" means, in respect of the Issuer Trust, the
receipt by the Property Trustee of an Opinion of Counsel, experienced in such
matters and who may be counsel to the Depositor, and determination by the
Depositor that, as a result of the occurrence of any amendment to, or change
(including any announced prospective change) in, the laws (or any rules or
regulations thereunder) of the United States or any political subdivision
thereof or therein, or as a result of any official or administrative
pronouncement or action (including any action taken in connection with a
regulatory examination or in connection with or as a result of any change in
regulatory policy) or judicial decision interpreting or applying such laws or
regulations, which amendment or change is effective or such pronouncement,
action or decision is announced on or after the date of the issuance of the
Capital Securities of the Issuer Trust, there is more than an insubstantial risk
that the Depositor will not be entitled to treat an amount equal to the
Liquidation Amount of such Capital Securities as "Tier 1 Capital" (or the then
equivalent thereof) for purposes of the risk-based capital adequacy guidelines
of the Board of Governors of the Federal Reserve System, as then in effect and
applicable to the Depositor.
"Cede" means Cede & Co., as the nominee of the Depositary.
"Certificate of Trust" has the meaning specified in the preamble to this
Trust Agreement.
"Clearing Agency" means an organization registered as a "clearing agency"
pursuant to Section 17A of the Exchange Act. The Depositary shall be the initial
Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank, other financial
institution or other Person for whom from time to time a Clearing Agency effects
book-entry transfers and pledges of securities deposited with the Clearing
Agency.
"Closing" and "Closing Date" have the respective meanings specified in the
Placement Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
4
"Commission" means the United States Securities and Exchange Commission,
or, if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Common Securities Certificate" means a certificate evidencing ownership of
Common Securities, substantially in the form attached as Exhibit C.
"Common Securities Purchase Agreement" means the Common Securities Purchase
Agreement, dated of even date herewith, between the Issuer Trust and the
Depositor, as the same may be amended from time to time.
"Common Security" means an undivided beneficial interest in the assets of
the Issuer Trust, having a Liquidation Amount of $1,000.00 and integral
multiples in excess thereof and having the rights provided therefor in this
Trust Agreement, including the right to receive Distributions and a Liquidation
Distribution as provided herein.
"Corporate Trust Office" means the principal office of the Property Trustee
located in the City of Wilmington, Delaware, which at the time of the execution
of this Trust Agreement is located at 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000-0000, Attention: Corporate Trust Administration.
"Debenture Event of Default" means an "Event of Default" as defined in the
Indenture.
"Debenture Purchase Agreement" means the Junior Subordinated Debenture
Purchase Agreement, dated of even date herewith, between the Depositor and the
Issuer Trust, as the same may be amended from time to time.
"Debenture Redemption Date" means, with respect to any Junior Subordinated
Debentures to be redeemed under the Indenture, the date fixed for redemption of
such Debentures under the Indenture.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. X.xx. 3801, et seq., as it may be amended from time to time.
"Delaware Trustee" means the corporation identified as the "Delaware
Trustee" in the preamble to this Trust Agreement solely in its capacity as
Delaware Trustee of the Issuer Trust and not in its individual capacity, or its
successor in interest in such capacity, or any successor trustee appointed as
herein provided.
"Depositary" means The Depository Trust Company or any successor thereto.
"Depositor" has the meaning specified in the preamble to this Trust
Agreement.
"Direct Action" has the meaning specified in Section 5.13(c).
5
"Distribution Date" has the meaning specified in Section 4.1(a).
"Distributions" means amounts payable in respect of the Trust Securities as
provided in Section 4.1.
"Early Termination Event" has the meaning specified in Section 9.2.
"Event of Default" means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) the occurrence of a Debenture Event of Default; or
(2) default by the Issuer Trust in the payment of any Distribution when it
becomes due and payable, and continuation of such default for a period of 30
days; or
(3) default by the Issuer Trust in the payment of any Redemption Price of
any Trust Security when it becomes due and payable; or
(4) default in the performance, or breach, in any material respect, of any
covenant or warranty of the Issuer Trustees in this Trust Agreement (other than
a covenant or warranty a default in the performance of which or the breach of
which is dealt with in clause (2) or (3) above) and continuation of such default
or breach for a period of 60 days after there has been given, by registered or
certified mail, to the Issuer Trustees and the Depositor by the Holders of at
least 25% in aggregate Liquidation Amount of the Outstanding Capital Securities,
a written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default" hereunder; or
(5) the occurrence of any Bankruptcy Event with respect to the Property
Trustee or all or substantially all of its property if a successor Property
Trustee has not been appointed within a period of 90 days thereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
and any successor statute thereto, as amended from time to time.
"Expiration Date" has the meaning specified in Section 9.1.
"Global Capital Securities Certificate" means a Capital Securities
Certificate or Restricted Securities Certificate, as the case may be, evidencing
ownership of Capital Securities, the ownership and transfers of which shall be
made through book entries by a Clearing Agency as described in Section 5.4.
"Global Capital Security" means those Capital Securities evidenced by the
Global Capital Securities Certificate.
6
"Guarantee" means the Guarantee Agreement executed and delivered by the
Depositor and the Guarantee Trustee, contemporaneously with the execution and
delivery of this Trust Agreement, for the benefit of the Holders of the Capital
Securities, as amended from time to time.
"Guarantee Trustee" means Wilmington Trust Company, solely in its capacity
as the trustee that holds the Guarantee for the benefit of the Holders and not
in its individual capacity, or its successor in interest in such capacity, or
any successor trustee appointed as herein provided.
"Holder" means a Person in whose name a Trust Security or Trust Securities
is registered in the Securities Register; any such Person shall be deemed to be
a beneficial owner within the meaning of the Delaware Business Trust Act.
"Indemnified Person" has the meaning provided in Section 8.6.
"Indenture" means the Junior Subordinated Indenture, dated of even date
herewith, between the Depositor and the Indenture Trustee (as amended or
supplemented from time to time) relating to the issuance of the Junior
Subordinated Debentures.
"Indenture Trustee" means Wilmington Trust Company, a Delaware banking
corporation and any successor.
"Investment Company Act" means the Investment Company Act of 1940, as
amended.
"Investment Company Event" means the receipt by the Issuer 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 Issuer
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 the issuance of the Capital Securities.
"Issuer Trust" means FCBI Capital Trust I, a Delaware business trust
created under the Delaware Business Trust Act.
"Issuer Trustees" has the meaning specified in the preamble to this Trust
Agreement.
"Junior Subordinated Debentures" means the Depositor's Floating Rate Junior
Subordinated Deferrable Interest Debentures, due September 30, 2032, issued
pursuant to the Indenture.
7
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security interest
or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of Trust Securities,
Trust Securities having a Liquidation Amount equal to that portion of the
principal amount of Junior Subordinated Debentures to be contemporaneously
redeemed in accordance with the Indenture, allocated to the Common Securities
and to the Capital Securities pro rata based upon the relative Liquidation
Amounts of such classes and (b) with respect to a distribution of Junior
Subordinated Debentures to Holders of Trust Securities in connection with a
dissolution or liquidation of the Issuer Trust, Junior Subordinated Debentures
having a principal amount equal to the Liquidation Amount of the Trust
Securities of the Holder to whom such Junior Subordinated Debentures are
distributed.
"Liquidation Amount" means the stated amount of $50,000.00 per Capital
Security and $1,000.00 per Common Security.
"Liquidation Date" means the date on which Junior Subordinated Debentures
are to be distributed to Holders of Trust Securities in connection with a
dissolution and liquidation of the Issuer Trust pursuant to Section 9.4.
"Liquidation Distribution" has the meaning specified in Section 9.4(d).
"Majority in Liquidation Amount of the Capital Securities" or "Majority in
Liquidation Amount of the Common Securities" means, except as provided by the
Trust Indenture Act, Capital Securities or Common Securities, as the case may
be, representing more than 50% of the aggregate Liquidation Amount of all then
Outstanding Capital Securities or Common Securities, as the case may be.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, Vice Chairman of the Board, Chief Executive Officer, President or an
Executive Vice President, a Senior Vice President or Vice President, and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of
the Depositor, and delivered to the party provided herein. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Trust Agreement shall include:
(1) a statement by each officer signing the Officers' Certificate that such
officer has read the covenant or condition and the definitions relating thereto;
(2) a brief statement of the nature and scope of the examination or
investigation undertaken by such officer in rendering the Officers' Certificate;
(3) 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
8
(4) a statement as to whether, in the opinion of each such officer, such
condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for or an employee of the Depositor or any Affiliate of the Depositor.
"Original Trust Agreement" has the meaning specified in the preamble to
this Trust Agreement.
"Outstanding," with respect to Trust Securities, means, as of the date of
determination, all Trust Securities theretofore executed and delivered under
this Trust Agreement, except:
(1) Trust Securities theretofore canceled by the Property Trustee or
delivered to the Property Trustee for cancellation;
(2) Trust Securities for whose payment or redemption cash in the necessary
amount has been theretofore deposited with the Property Trustee or any Paying
Agent for the Holders of such Capital Securities, provided that if such Trust
Securities are to be redeemed, notice of such redemption has been duly given
pursuant to this Trust Agreement; and
(3) Trust Securities that have been paid or for which other Trust
Securities have been executed and delivered in exchange therefor or in lieu
thereof pursuant to Sections 5.4, 5.5 and 5.6; provided, however, that in
determining whether the Holders of the requisite Liquidation Amount of the
Outstanding Capital Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Capital Securities owned by the
Depositor, any Issuer Trustee, any Administrator or any Affiliate of the
Depositor, shall be disregarded and deemed not to be Outstanding, except that
(a) in determining whether any Issuer Trustee or any Administrator shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Capital Securities that such Issuer Trustee or
such Administrator, as the case may be, knows to be so owned shall be so
disregarded and (b) the foregoing shall not apply at any time when all of the
Outstanding Capital Securities are owned by the Depositor, one or more of the
Issuer Trustees, one or more of the Administrators and/or any such Affiliate.
Capital Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Administrators the pledgee's right so to act with respect to such Capital
Securities and that the pledgee is not the Depositor or any Affiliate of the
Depositor.
"Owner" means each Person who is the beneficial owner of Global Capital
Securities as reflected in the records of the Clearing Agency or, if a Clearing
Agency Participant is not the Owner, then as reflected in the records of a
Person maintaining an account with such Clearing Agency (directly or
indirectly), in accordance with the rules of such Clearing Agency.
"Paying Agent" means any paying agent or co-paying agent appointed pursuant
to Section 5.10 and shall initially be the Property Trustee.
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"Payment Account" means a segregated non-interest-bearing corporate trust
account maintained with the Property Trustee in its trust department for the
benefit of the Holders in which all amounts paid in respect of the Junior
Subordinated Debentures will be held and from which the Property Trustee,
through the Paying Agent, shall make payments to the Holders in accordance with
Sections 4.1, 4.2 and 9.4.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, company,
limited liability company, trust, unincorporated organization or government or
any agency or political subdivision thereof, or any other entity of whatever
nature.
"Placement Agent" means The Bankers Bank, a Georgia banking corporation,
and BankersBanc Capital Corporation, a Georgia corporation.
"Placement Agreement" means the Placement Agreement among the Depositor,
the Issuer Trust and the Placement Agent.
"Property Trustee" means the Person identified as the "Property Trustee" in
the preamble to this Trust Agreement solely in its capacity as Property Trustee
of the Issuer Trust and not in its individual capacity, or its successor in
interest in such capacity, or any successor property trustee appointed as herein
provided.
"Purchase Agreement" means, collectively, all purchase agreements executed
by or on behalf of the Depositor, the Issuer Trust, and the Owners.
"Redemption Date" means, with respect to any Trust Security to be redeemed,
the date fixed for such redemption by or pursuant to this Trust Agreement;
provided that each Debenture Redemption Date and the stated maturity of the
Junior Subordinated Debentures shall be a Redemption Date for a Like Amount of
Trust Securities, including but not limited to any date of redemption pursuant
to the occurrence of any Special Event.
"Redemption Price" means a price equal to the Liquidation Amount, together
with accumulated Distributions to, but excluding, the date fixed for redemption.
"Relevant Trustee" has the meaning specified in Section 8.10.
"Responsible Officer" when used with respect to the Property Trustee means
any officer assigned to the Corporate Trust Office, including any managing
director, vice president, principal, assistant vice president, assistant
treasurer, assistant secretary or any other officer of the Property Trustee
customarily performing functions similar to those performed by any of the above
designated officers and having direct responsibility for the administration of
the Indenture, and also, with respect to a particular matter, any other officer
to whom such matter is referred because of such officer's knowledge of and
familiarity with the particular subject.
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"Restricted Capital Securities" means all Capital Securities, including
those represented by a Capital Securities Certificate which is required pursuant
to Section 5.5(c) to bear a Restricted Capital Securities Legend. Such term
includes the Global Capital Securities Certificate.
"Restricted Capital Securities Legend" means a legend substantially in the
form of the legend required in the form of a Capital Securities Certificate set
forth in Exhibit D to be placed upon a Restricted Capital Security.
"Restricted Securities Certificate" means a certificate substantially in
the form set forth in Exhibit B.
"Securities Act" means the Securities Act of 1933, as amended, and any
successor statute thereto, in each case as amended from time to time.
"Senior Indebtedness" has the meaning specified in the Indenture.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 5.5.
"Special Event" means any Tax Event, Capital Treatment Event or Investment
Company Event.
"Successor Capital Securities Certificate" of any particular Capital
Securities Certificate means every Capital Securities Certificate issued after,
and evidencing all or a portion of the same beneficial interest in the Issuer
Trust as that evidenced by, such particular Capital Securities Certificate; and,
for the purposes of this definition, any Capital Securities Certificate executed
and delivered under Section 5.6 in exchange for or in lieu of a mutilated,
destroyed, lost or stolen Capital Securities Certificate shall be deemed to
evidence the same beneficial interest in the Issuer Trust as the mutilated,
destroyed, lost or stolen Capital Securities Certificate.
"Successor Capital Securities" has the meaning specified in Section 9.5.
"Tax Event" means the receipt by the Issuer Trust of an Opinion of Counsel
experienced in such matters to the effect that, as a result of any amendment to,
or change (including any announced prospective change) in, the laws (or any
regulations thereunder) of the United States or any political subdivision or
taxing authority thereof or therein, or as a result of any official or
administrative pronouncement or action or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
which pronouncement, action or decision is announced on or after the date of
issuance of the Capital Securities (including, without limitation, any of the
foregoing arising with respect to, or resulting from, any proceeding or other
action commencing on or before such date), there is more than an insubstantial
risk that (i) the Issuer Trust is, or will be within 90 days of the delivery of
such Opinion of
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Counsel, subject to United States federal income tax with respect to income
received or accrued on the Junior Subordinated Debentures, (ii) interest payable
by the Depositor on the Junior Subordinated Debentures is not, or within 90 days
of the delivery of such Opinion of Counsel will not be, deductible by the
Depositor, in whole or in part, for United States federal income tax purposes,
or (iii) the Issuer Trust is, or will be within 90 days of the delivery of such
Opinion of Counsel, subject to more than a de minimis amount of other taxes,
duties or other governmental charges.
"Trust Agreement" means this Amended and Restated Trust Agreement, as the
same may be modified, amended or supplemented in accordance with the applicable
provisions hereof, including (i) all exhibits hereto, and (ii) for all purposes
of this Amended and Restated Trust Agreement any such modification, amendment or
supplement, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this Amended and Restated Trust Agreement and any
modification, amendment or supplement, respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939 or any
successor statute, in each case as amended from time to time.
"Trust Property" means (a) the Junior Subordinated Debentures, (b) any cash
on deposit in, or owing to, the Payment Account, (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 the trusts
of this Trust Agreement.
"Trust Securities Certificate" means any one of the Common Securities
Certificates or the Capital Securities Certificates.
"Trust Security" means any one of the Common Securities or the Capital
Securities.
ARTICLE II
CONTINUATION OF THE ISSUER TRUST
SECTION 2.1. Name.
The Issuer Trust continued hereby shall be known as "FCBI Capital Trust I",
as such name may be modified from time to time by the Administrators following
written notice to the Holders of Trust Securities and the Issuer Trustees, in
which name the Administrators and the Issuer Trustees may engage in the
transactions contemplated hereby, make and execute contracts and other
instruments on behalf of the Issuer Trust and xxx and be sued.
SECTION 2.2. Office of the Delaware Trustee; Principal Place of Business.
The address of the Delaware Trustee in the State of Delaware is Wilmington
Trust Company, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000,
Xxxxxxxxxx, Xxxxxxxx 00000-0000, Attention: Corporate Trust Administration, or
such other address in the State of Delaware as the Delaware Trustee may
designate by written notice to the Holders and
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the Depositor. The principal executive office of the Issuer Trust is in care of
Florida Community Banks, Inc., 0000 Xxxxx 00xx Xxxxxx, Xxxxxxxxx, Xxxxxxx 00000,
Attention: Xxxxxx X. Xxxxxxxx.
SECTION 2.3. Initial Contribution of Trust Property; Organizational Expenses.
The Property Trustee acknowledges receipt in trust from the Depositor in
connection with the Original Trust Agreement of the sum of $10.00, which
constitutes the initial Trust Property. The Depositor shall pay all
organizational expenses of the Issuer Trust as they arise or shall, upon request
of any Issuer Trustee, promptly reimburse such Issuer Trustee for any such
expenses paid by such Issuer Trustee. The Depositor shall make no claim upon the
Trust Property for the payment of such expenses.
SECTION 2.4. Issuance of the Restricted Capital Securities.
The Depositor, the Issuer Trust, and the Placement Agent executed and
delivered the Placement Agreement pursuant to the Original Trust Agreement.
Contemporaneously with the execution and delivery of this Trust Agreement, an
Administrator, on behalf of the Issuer Trust, shall manually execute in
accordance with Section 5.3 and the Property Trustee shall authenticate in
accordance with Section 5.3 and deliver to the Clearing Agency or its custodian,
a Global Capital Securities Certificate, registered in the name of Cede & Co.,
in an aggregate amount of 200 Capital Securities having an aggregate Liquidation
Amount of $10,000,000.00, against receipt of the aggregate purchase price of
such Capital Securities of $10,000,000.00, by the Property Trustee.
SECTION 2.5. Issuance of the Common Securities; Subscription and Purchase of
Junior Subordinated Debentures.
Contemporaneously with the execution and delivery of this Trust Agreement,
an Administrator, on behalf of the Issuer Trust, shall execute in accordance
with Section 5.3 and the Property Trustee shall authenticate and shall deliver
to the Depositor, a Common Securities Certificate, registered in the name of the
Depositor, in an aggregate amount of 310 Common Securities having an aggregate
Liquidation Amount of $310,000.00 against receipt of the aggregate purchase
price of such Common Securities of $310,000.00 by the Property Trustee.
Contemporaneously therewith, an Administrator, on behalf of the Issuer Trust,
shall subscribe for and purchase from the Depositor the Junior Subordinated
Debentures, registered in the name of Wilmington Trust Company, not in its
individual capacity, but solely as Property Trustee for the Issuer Trust and
having an aggregate principal amount equal to $10,310,000.00, and, in
satisfaction of the purchase price for such Junior Subordinated Debentures, the
Property Trustee, on behalf of the Issuer Trust, shall deliver to the Depositor
the sum of $10,310,000.00 (being the sum of the amounts delivered to the
Property Trustee pursuant to (i) the second sentence of Section 2.4, and (ii)
the first sentence of this Section 2.5) and receive on behalf of the Issuer
Trust the Junior Subordinated Debentures.
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SECTION 2.6. Declaration of Trust.
The exclusive purposes and functions of the Issuer Trust are to (a) issue
and sell Trust Securities and use the proceeds from such sale to acquire the
Junior Subordinated Debentures, and (b) engage in only those other activities
necessary, convenient or incidental thereto. The Depositor hereby appoints the
Issuer Trustees as trustees of the Issuer Trust, to have all the rights, powers
and duties to the extent set forth herein, and the Issuer Trustees hereby accept
such appointment. The Property Trustee hereby declares that it will hold the
Trust Property in trust upon and subject to the conditions set forth herein for
the benefit of the Issuer Trust and the Holders. The Depositor hereby appoints
the Administrators, with such Administrators having all rights, powers and
duties set forth herein with respect to accomplishing the purposes of the Issuer
Trust, and the Administrators hereby accept such appointment; provided, however,
that it is the intent of the parties hereto that such Administrators shall not
be trustees or, to the fullest extent permitted by law, fiduciaries with respect
to the Issuer Trust and this Trust Agreement shall be construed in a manner
consistent with such intent. The Property Trustee shall have the right and power
(but shall not be obligated) to perform those duties assigned to the
Administrators. The Delaware Trustee, in such capacity, shall not be entitled to
exercise any powers, nor shall the Delaware Trustee, in such capacity, have any
of the duties and responsibilities, of the Property Trustee or the
Administrators set forth herein. The Delaware Trustee, in such capacity, shall
be one of the trustees of the Issuer Trust for the sole and limited purpose of
fulfilling the requirements of Section 3807 of the Delaware Business Trust Act
and for taking such actions as are required to be taken by a Delaware trustee
under the Delaware Business Trust Act.
SECTION 2.7. Authorization to Enter into Certain Transactions.
(a) The Issuer Trustees and the Administrators shall conduct the affairs of
the Issuer Trust in accordance with the terms of this Trust Agreement. Subject
to the limitations set forth in paragraph (b) of this Section and in accordance
with the following provisions (i), (ii) and (iii), the Issuer Trustees and the
Administrators shall act as follows:
(i) each Administrator, acting jointly or singly, shall:
(A) comply with the Placement Agreement regarding the issuance
and sale of the Trust Securities;
(B) assist in compliance with the Securities Act, applicable
state securities or blue sky laws, and the Trust Indenture Act;
(C) assist in the listing of the Capital Securities upon such
securities exchange or exchanges, if any, as shall be determined by
the Depositor, with the registration of the Capital Securities under
the Exchange Act, if required or if requested by the Depositor, and
the preparation and filing of all periodic and other reports and other
documents pursuant to the foregoing;
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(D) execute the Trust Securities on behalf of the Issuer Trust in
accordance with this Trust Agreement;
(E) execute and deliver an application for a taxpayer
identification number for the Issuer Trust;
(F) assist in the filing with the Commission, at such time as
determined by the Depositor, any registration statement, if any, under
the Securities Act relating to the Trust Securities, including any
amendments thereto;
(G) unless otherwise required by the Trust Indenture Act, execute
on behalf of the Issuer Trust any documents that the Administrators
have the power to execute pursuant to this Trust Agreement, including
without limitation, the Debenture Purchase Agreement and the Common
Securities Purchase Agreement; and
(H) take any action incidental to the foregoing as necessary or
advisable to give effect to the terms of this Trust Agreement.
(ii) The Property Trustee shall have the power and authority to act on
behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any
other payments made in respect of the Junior Subordinated Debentures
in the Payment Account;
(D) the distribution of amounts owed to the Holders in respect of
the Trust Securities;
(E) the exercise of all of the rights, powers and privileges of a
holder of the Junior Subordinated Debentures;
(F) the sending of notices of default and other information
regarding the Trust Securities and the Junior Subordinated Debentures
to the Holders thereof in accordance with this Trust Agreement;
(G) the distribution of the Trust Property in accordance with the
terms of this Trust Agreement;
(H) to the extent provided in this Trust Agreement, the
winding-up of the affairs of and liquidation of the Issuer Trust and
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the preparation, execution and filing of the certificate of
cancellation with the Secretary of State of the State of Delaware; and
(I) after an Event of Default (other than under paragraph (2),
(3), (4), or (5) of the definition of such term if such Event of
Default is by or with respect to the Property Trustee), comply with
the provisions of this Trust Agreement and take any action to give
effect to the terms of this Trust Agreement and protect and conserve
the Trust Property for the benefit of the Holders (without
consideration of the effect of any such action on any particular
Holder);
provided, however, that nothing in this Section 2.7(a)(ii) shall require
the Property Trustee to take any action that is not otherwise required in
this Trust Agreement.
(iii) The Administrators shall comply with the listing requirements of
the Capital Securities upon such securities exchange or exchanges, if any,
as shall be determined by the Depositor, the registration of the Capital
Securities under the Exchange Act, if required or if requested by the
Depositor, and the preparation and filing of all periodic and other reports
and other documents pursuant to the foregoing.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or
the Issuer Trustees or Administrators acting on behalf of the Issuer Trust)
shall not undertake any business, activity or transaction except as expressly
provided herein or contemplated hereby. In particular, neither the Issuer
Trustees nor the Administrators shall (i) acquire any investments or engage in
any activities not authorized by this Trust Agreement, (ii) sell, assign,
transfer, exchange, mortgage, pledge, set-off or otherwise dispose of any of the
Trust Property or interests therein, including to Holders, except as expressly
provided herein, (iii) take any action that would cause the Issuer Trust to
become taxable other than as a grantor trust for United States Federal income
tax purposes, (iv) incur any indebtedness for borrowed money or issue any other
debt, or (v) take or consent to any action that would result in the placement of
a Lien on any of the Trust Property, except as expressly provided herein. The
Property Trustee shall defend all claims and demands of all Persons at any time
claiming any Lien on any of the Trust Property adverse to the interest of the
Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Securities, the
Depositor shall have the right and responsibility to assist the Issuer Trust
with respect to, or effect on behalf of the Issuer Trust, the following (and any
actions taken by the Depositor in furtherance of the following prior to the date
of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) the preparation, execution and filing with the Commission of a
registration statement on the appropriate form under the Securities Act or
the preparation of offering documents in reliance on one or more exemptions
from registration under the Securities Act with respect to the Capital
Securities;
(ii) the determination of the states in which to take appropriate
action to qualify or register for sale or necessary to obtain any exemption
from such
16
qualification or registration of all or part of the Capital Securities and
the determination of any and all such acts, other than actions that must be
taken by or on behalf of the Issuer Trust, and the advice to the Issuer
Trustees of actions they must take on behalf of the Issuer Trust, and the
preparation for execution and filing of any documents to be executed and
filed by the Issuer Trust or on behalf of the Issuer Trust, as the
Depositor deems necessary or advisable in order to comply with the
applicable laws of any such States in connection with the offer and sale of
the Capital Securities;
(iii) the negotiation of the terms of, and the execution and delivery
of, the Placement Agreement and the Purchase Agreement providing for the
sale of the Capital Securities; and
(iv) the taking of any other actions necessary or desirable to carry
out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators and
the Property Trustee are authorized and directed to conduct the affairs of the
Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not
be deemed to be an "investment company" required to be registered under the
Investment Company Act, and will not be taxable other than as a grantor trust
for United States Federal income tax purposes and so that the Junior
Subordinated Debentures will be treated as indebtedness of the Depositor for
United States Federal income tax purposes. In this connection, the Property
Trustee and the Holders of Common Securities are authorized to take any action,
not inconsistent with applicable law, the Certificate of Trust or this Trust
Agreement, that the Property Trustee and Holders of Common Securities determine
in their discretion to be necessary or desirable for such purposes, as long as
such action does not adversely affect in any material respect the interests of
the Holders of the Outstanding Capital Securities. In no event shall the
Administrators or the Issuer Trustees be liable to the Issuer Trust or the
Holders for any failure to comply with this Section that results from a change
in law or regulations or in the interpretation thereof.
SECTION 2.8. Assets of Trust.
The assets of the Issuer Trust shall consist solely of the Trust Property.
SECTION 2.9. Title to Trust Property.
Legal title to all Trust Property shall be vested at all times in the
Property Trustee (in its capacity as such) and shall be held and administered by
the Property Trustee for the benefit of the Issuer Trust and the Holders in
accordance with this Trust Agreement.
ARTICLE III
PAYMENT ACCOUNT
SECTION 3.1. Payment Account.
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(a) At or prior to the Closing Date, the Property Trustee shall establish
the Payment Account. The Property Trustee and its agents shall have exclusive
control and sole right of withdrawal with respect to the Payment Account for the
purpose of making deposits in and withdrawals from the Payment Account in
accordance with this Trust Agreement. All monies and other property deposited or
held from time to time in the Payment Account shall be held by the Property
Trustee in the Payment Account for the exclusive benefit of the Holders and for
distribution as herein provided, including (and subject to) any priority of
payments provided for herein.
(b) The Property Trustee shall deposit in the Payment Account, promptly
upon receipt, all payments of principal of or interest on, and any other
payments or proceeds with respect to, the Junior Subordinated Debentures.
Amounts held in the Payment Account shall not be invested by the Property
Trustee pending distribution thereof.
ARTICLE IV
DISTRIBUTIONS; REDEMPTION
SECTION 4.1. Distributions.
(a) The Trust Securities represent undivided beneficial interests in the
Trust Property, and Distributions (including of Additional Amounts) will be made
on the Trust Securities at the rate and on the dates that payments of interest
(including of Additional Interest, as defined in the Indenture) are made on the
Junior Subordinated Debentures. Accordingly:
(i) Distributions on the Trust Securities shall be cumulative and will
accumulate whether or not there are funds of the Issuer Trust available for
the payment of Distributions. Distributions shall accumulate from the date
of issue of the Trust Securities, and, except in the event (and to the
extent) that the Depositor exercises its right to defer the payment of
interest on the Junior Subordinated Debentures pursuant to the Indenture,
shall be payable quarterly in arrears on March 31, June 30, September 30
and December 31 of each year, commencing on June 30, 2002. If any date on
which a Distribution is otherwise payable on the Trust Securities is not a
Business Day, then the payment of such Distribution shall be made on the
next succeeding day that is a Business Day (without any additional
Distributions or other payment in respect of any such delay), except that,
if such Business Day is in the next succeeding calendar year, such payment
shall be made on the immediately preceding Business Day, in each case with
the same force and effect as if made on the date on which such payment was
originally payable (each date on which distributions are payable in
accordance with this Section 4.1(a), a "Distribution Date").
(ii) The Trust Securities shall be entitled to Distributions payable
at a floating rate, reset quarterly on each Distribution Date for the next
succeeding quarter, equal to the prime rate of interest so published in the
"Money Rates" table in the Eastern Edition of The Wall Street Journal for
the last Business Day of each of March, June,
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September and December, as applicable, plus 50 basis points on the
liquidation amount of each Trust Security ("Floating Rate"). If more than
one rate is so indicated in The Wall Street Journal, the prime rate shall
equal the highest rate provided therein. The amount of Distributions
payable for any full quarterly period shall be computed on the basis of a
360-day year of twelve 30-day months. The amount of Distributions for any
period less than a full quarter shall be computed on the basis of a 360-day
year and the actual number of days elapsed during that period. The amount
of Distributions payable for any period shall include any Additional
Amounts in respect of such period.
(iii) So long as no Debenture Event of Default has occurred and is
continuing, the Depositor has the right under the Indenture to defer the
payment of interest on the Junior Subordinated Debentures at any time and
from time to time for a period not exceeding 20 consecutive quarterly
periods (an "Extension Period"), provided that no Extension Period may
extend beyond September 30, 2032 or end on a date that is not a scheduled
interest payment date. As a consequence of any such deferral, quarterly
Distributions on the Trust Securities by the Issuer Trust will also be
deferred and the amount of Distributions to which Holders of the Trust
Securities are entitled will accumulate additional Distributions thereon at
the Floating Rate, compounded quarterly, to the extent permitted by
applicable law, from the relevant payment date for such Distributions,
computed in the same manner as set forth for Distributions in subsection
4.1(a)(ii) immediately above. The term "Distributions" as used in Section
4.1 shall include any such additional Distributions provided pursuant to
this Section 4.1(a)(iii).
(iv) Distributions on the Trust Securities shall be made by the
Property Trustee from the Payment Account and shall be payable on each
Distribution Date only to the extent that the Issuer Trust has funds then
on hand and available in the Payment Account for the payment of such
Distributions.
(b) Distributions on the Trust Securities with respect to a Distribution
Date shall be payable to the Holders thereof as they appear on the Securities
Register for the Trust Securities at the close of business on the relevant
record date, which shall be at the close of business on the fifteenth day of the
month in which the relevant Distribution Date occurs (or if such date is not a
Business Day, the immediately preceding Business Day).
SECTION 4.2. Redemption.
(a) On each Debenture Redemption Date and on the stated maturity of the
Junior Subordinated Debentures, the Issuer Trust will be required to redeem a
Like Amount of Trust Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property Trustee by
first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days
prior to the Redemption Date to each Holder of Trust Securities to be redeemed,
at such Holder's address appearing in the Security Register. All notices of
redemption shall state:
(i) the Redemption Date;
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(ii) the Redemption Price, or if the Redemption Price cannot be
calculated prior to the time the notice is required to be sent, the
estimate of the Redemption Price provided pursuant to the Indenture
together with a statement that it is an estimate and that the actual
Redemption Price will be calculated on the third Business Day prior to the
Redemption Date (and if an estimate is provided, a further notice shall be
sent of the actual Redemption Price on the date, or as soon as practicable
thereafter, that notice of such actual Redemption Price is received
pursuant to the Indenture);
(iii) the CUSIP number or CUSIP numbers of the Capital Securities
affected;
(iv) if less than all the Outstanding Trust Securities are to be
redeemed, the identification and the total Liquidation Amount of the
particular Trust Securities to be redeemed;
(v) that on the Redemption Date the Redemption Price will become due
and payable upon each such Trust Security to be redeemed and that
Distributions thereon will cease to accumulate on and after said date,
except as provided in Section 4.2(d) below; and
(vi) the place or places where Trust Securities are to be surrendered
for the payment of the Redemption Price.
The Issuer Trust in issuing the Trust Securities may use "CUSIP" or
"private placement" numbers (if then generally in use), and, if so, the Property
Trustee shall indicate the "CUSIP" or "private placement" numbers of the Trust
Securities in notices of redemption and related materials as a convenience to
Holders; provided, that any such notice may state that no representation is made
as to the correctness of such numbers either as printed on the Trust Securities
or as contained in any notice of redemption and related material.
(c) The Trust Securities redeemed on each Redemption Date shall be redeemed
at the Redemption Price with the applicable proceeds from the contemporaneous
redemption of Junior Subordinated Debentures. Redemptions of the Trust
Securities shall be made and the Redemption Price shall be payable on each
Redemption Date only to the extent that the Issuer Trust has funds then on hand
and available in the Payment Account for the payment of such Redemption Price.
(d) If the Issuer Trust gives a notice of redemption in respect of any
Capital Securities, then, by 12:00 noon, Eastern Time, on the Redemption Date,
subject to Section 4.2(c), the Property Trustee will, with respect to Capital
Securities held in global form, irrevocably deposit with the Clearing Agency for
such Capital Securities, to the extent available therefor, funds sufficient to
pay the applicable Redemption Price and will give such Clearing Agency
irrevocable instructions and authority to pay the Redemption Price to the
Holders of the Capital Securities. With respect to Capital Securities that are
not held in global form, if any, the Property Trustee, subject to Section
4.2(c), will irrevocably deposit with the Paying Agent, to the
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extent available therefor, funds sufficient to pay the applicable Redemption
Price and will give the Paying Agent irrevocable instructions and authority to
pay the Redemption Price to the Holders of the Capital Securities upon surrender
of their Capital Securities Certificates or Restricted Securities Certificates,
as applicable. Notwithstanding the foregoing, Distributions payable on or prior
to the Redemption Date for any Trust Securities called for redemption shall be
payable to the Holders of such Trust Securities as they appear on the Securities
Register for the Trust Securities on the relevant record dates for the related
Distribution Dates. If notice of redemption shall have been given and funds
deposited as required, then, upon the date of such deposit, all rights of
Holders holding Trust Securities so called for redemption will cease, except the
right of such Holders to receive the Redemption Price and any Distribution
payable in respect of the Trust Securities on or prior to the Redemption Date,
but without interest, and such Trust Securities will cease to be Outstanding. In
the event that any date on which any applicable Redemption Price is payable is
not a Business Day, then payment of the applicable Redemption Price payable on
such date will be made on the next succeeding day that is a Business Day (and
without any interest or other payment in respect of any such delay), except
that, if such Business Day falls in the next calendar year, such payment will be
made on the immediately preceding Business Day, in each case, with the same
force and effect as if made on such date. In the event that payment of the
Redemption Price in respect of any Trust Securities called for redemption is
improperly withheld or refused and not paid either by the Issuer Trust or by the
Depositor pursuant to the Guarantee, Distributions on such Trust Securities will
continue to accumulate, as set forth in Section 4.1 and in accordance with the
continued accrual of interest on the Junior Subordinated Debentures, from the
Redemption Date originally established by the Issuer Trust for such Trust
Securities to the date such applicable Redemption Price is actually paid, in
which case the actual payment date will be the date fixed for redemption for
purposes of calculating the applicable Redemption Price.
(e) Subject to Section 4.3(a), if less than all the Outstanding Trust
Securities are to be redeemed on a Redemption Date, then the aggregate
Liquidation Amount of such Trust Securities to be redeemed shall be allocated
pro rata to the Common Securities and the Capital Securities based on the
relative aggregate Liquidation Amounts of such classes. The particular Capital
Securities to be redeemed shall be selected on a pro rata basis based on their
respective Liquidation Amounts not more than 60 days prior to the Redemption
Date by the Property Trustee from the Outstanding Capital Securities not
previously called for redemption, or if the Capital Securities are then held in
the form of a Global Preferred Security in accordance with the customary
procedures for the Clearing Agency. The Property Trustee shall promptly notify
the Securities Registrar in writing of the aggregate Liquidation Amount of
Capital Securities to be redeemed and the particular Capital Securities selected
for redemption. For all purposes of this Trust Agreement, unless the context
otherwise requires, all provisions relating to the redemption of Capital
Securities shall relate, in the case of any Capital Securities redeemed, to the
portion of the aggregate Liquidation Amount of Capital Securities that has been
or is to be redeemed.
SECTION 4.3. Subordination of Common Securities.
(a) Payment of Distributions (including Additional Amounts, if applicable)
on, the Redemption Price of, and the Liquidation Distribution in respect of, the
Trust Securities,
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as applicable, shall be made, as set forth in Section 4.2(e), pro rata among the
Common Securities and the Capital Securities based on the Liquidation Amount of
such Trust Securities; provided, however, that if on any Distribution Date or
Redemption Date any Event of Default resulting from a Debenture Event of Default
in Sections 5.1(1) or 5.1(2) of the Indenture shall have occurred and be
continuing, no payment of any Distribution (including any Additional Amounts)
on, Redemption Price of, or Liquidation Distribution in respect of, any Common
Security, and no other payment on account of the redemption, liquidation or
other acquisition of Common Securities, shall be made, unless payment in full in
cash of all accumulated and unpaid Distributions (including any Additional
Amounts) on all Outstanding Capital Securities for all Distribution periods
terminating on or prior thereto, or, in the case of payment of the Redemption
Price, the full amount of such Redemption Price on all Outstanding Capital
Securities then called for redemption, or in the case of payment of the
Liquidation Distribution, the full amount of such Liquidation Distribution on
all Outstanding Capital Securities, shall have been made or provided for, and
all funds immediately available to the Property Trustee shall first be applied
to the payment in full in cash of all Distributions (including any Additional
Amounts) on, or the Redemption Price of, or Liquidation Distribution in respect
of, Capital Securities then due and payable. The existence of an Event of
Default does not entitle the Holders of Capital Securities to accelerate the
maturity thereof.
(b) In the case of the occurrence of any Event of Default resulting from
any Debenture Event of Default, the Holder of the Common Securities shall be
deemed to have waived any right to act with respect to any such Event of Default
under this Trust Agreement until the effects of all such Events of Default with
respect to the Capital Securities have been cured, waived or otherwise
eliminated. Until all such Events of Default under this Trust Agreement with
respect to the Capital Securities have been so cured, waived or otherwise
eliminated, to the fullest extent permitted by applicable law, the Property
Trustee shall act solely on behalf of the Holders of the Capital Securities and
not on behalf of the Holder of the Common Securities, and only the Holders of
the Capital Securities will have the right to direct the Property Trustee to act
on their behalf.
SECTION 4.4. Payment Procedures.
Payments of Distributions (including any Additional Amounts) in respect of
the Capital Securities shall be made by check mailed to the address of the
Person entitled thereto as such address shall appear on the Securities Register
or, if the Capital Securities are held by a Clearing Agency, such Distributions
shall be made to the Clearing Agency in immediately available funds, which will
credit the relevant accounts on the applicable Distribution Dates. Payments in
respect of the Common Securities shall be made in such manner as shall be
mutually agreed between the Property Trustee and the Holder of the Common
Securities.
SECTION 4.5. Tax Returns and Reports.
The Administrators shall prepare (or cause to be prepared), at the
Depositor's expense, and file all United States federal, state and local tax and
information returns and reports required to be filed by or in respect of the
Issuer Trust. In this regard, the Administrators shall
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(a) prepare and file (or cause to be prepared and filed) all Internal Revenue
Service forms required to be filed in respect of the Issuer Trust in each
taxable year of the Issuer Trust and (b) prepare and furnish (or cause to be
prepared and furnished) to each Holder all Internal Revenue Service forms
required to be provided by the Issuer Trust. The Administrators shall provide
the Depositor and the Property Trustee with a copy of all such returns and
reports promptly after such filing or furnishing. The Issuer Trustees shall
comply with United States Federal withholding and backup withholding tax laws
and information reporting requirements with respect to any payments to Holders
under the Trust Securities.
On or before December 15 of each year during which any Capital Securities
are Outstanding, the Administrators shall furnish to the Paying Agent such
information as may be reasonably requested by the Property Trustee in order that
the Property Trustee may prepare the information which it is required to report
for such year on Internal Revenue Service Forms 1096 and 1099 pursuant to
Section 6049 of the Code. Such information shall include the amount of original
issue discount includable in income for each Outstanding Capital Security during
such year, if any.
SECTION 4.6. Payment of Taxes, Duties, Etc. of the Issuer Trust.
Upon receipt under the Junior Subordinated Debentures of Additional Sums,
the Property Trustee shall promptly pay any taxes, duties or governmental
charges of whatsoever nature (other than withholding taxes) imposed on the
Issuer Trust by the United States or any other taxing authority out of the
proceeds of the Additional Sums.
SECTION 4.7. Payments under Indenture or Pursuant to Direct Actions.
Any amount payable hereunder to any Holder of Capital Securities shall be
reduced by the amount of any corresponding payment such Holder (or Owner) has
directly received pursuant to Section 5.8 of the Indenture or Section 5.13 of
this Trust Agreement.
SECTION 4.8. Liability of the Holder of Common Securities.
The Holder of Common Securities shall be liable for the debts and
obligations of the Issuer Trust as set forth in Section 6.7 of the Indenture
regarding allocation of expenses.
ARTICLE V
TRUST SECURITIES CERTIFICATES
SECTION 5.1. Initial Ownership.
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Upon the creation of the Issuer Trust and the contribution by the Depositor
pursuant to Section 2.3 and until the issuance of the Trust Securities, and at
any time during which no Trust Securities are Outstanding, the Depositor shall
be the sole beneficial owner of the Issuer Trust.
SECTION 5.2. The Trust Securities Certificates.
(a) The Capital Securities Certificates shall be issued in fully registered
form. The Trust Securities Certificates shall be executed on behalf of the
Issuer Trust by manual or facsimile signature of at least one Administrator.
Trust Securities Certificates bearing the manual or facsimile signatures of
individuals who were, at the time when such signatures shall have been affixed,
authorized to sign on behalf of the Issuer Trust, shall be validly issued and
entitled to the benefits of this Trust Agreement, notwithstanding that such
individuals or any of them shall have ceased to be so authorized prior to the
delivery of such Trust Securities Certificates or did not hold such offices at
the date of delivery of such Trust Securities Certificates. A transferee of a
Trust Securities Certificate shall become a Holder, and shall be entitled to the
rights and subject to the obligations of a Holder hereunder, upon due
registration of such Trust Securities Certificate in such transferee's name
pursuant to Section 5.5.
(b) Upon their original issuance, Capital Securities Certificates shall be
issued in the form of one or more Global Capital Securities Certificates which
initially shall bear a Restricted Capital Securities Legend, registered in the
name of Cede as the Depositary's nominee and deposited with or on behalf of
Depositary for credit by Depositary to the respective accounts of the Owners
thereof (or such other accounts as they may direct). Except as set forth herein,
record ownership of the Global Capital Securities may be transferred, in whole
or in part, only to another nominee of Depositary or to a successor of the
Depository or its nominee.
(c) A single Common Securities Certificate representing the Common
Securities shall be issued to the Depositor in the form of a definitive Common
Securities Certificate.
SECTION 5.3. Execution and Delivery of Trust Securities Certificates.
At the Closing, an Administrator shall execute, on behalf of the Trust,
Trust Securities Certificates, in an aggregate Liquidation Amount as provided in
Sections 2.4 and 2.5, and deliver such Trust Securities Certificates to the
Property Trustee for authentication. Upon such delivery, the Property Trustee
shall authenticate such Trust Securities Certificates and deliver such Trust
Securities Certificates upon the written order of the Trust, executed by an
Administrator thereof, without further corporate action by the Depositor, in
authorized denominations.
SECTION 5.4. Global Capital Securities.
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(a) The Global Capital Security issued under this Trust Agreement shall be
registered in the name of Cede & Co., as the nominee of the Clearing Agency and
delivered to such custodian therefor, and such Global Capital Security shall
constitute a single Capital Security for all purposes of this Trust Agreement,
and it shall initially bear a Restricted Capital Securities Legend.
(b) Notwithstanding any other provision in this Trust Agreement, the Global
Capital Security may not be exchanged in whole or in part for registered Capital
Securities, and no transfer of the Global Capital Security in whole or in part
may be registered, in the name of any Person other than the Clearing Agency for
such Global Capital Security, Cede & Co., or other nominee thereof unless: (i)
such Clearing Agency advises the Depositor and the Property Trustee in writing
that such Clearing Agency is no longer willing or able to properly discharge its
responsibilities as the Clearing Agency with respect to such Global Capital
Security, and the Depositor is unable to locate a qualified successor within 90
days, (ii) at any time the Depositary ceases to be a Clearing Agency registered
as such under the Exchange Act, or (iii) the Issuer Trust at its option advises
the Depositary in writing that it elects to terminate the book-entry system
through the Clearing Agency.
(c) If the Global Capital Security is to be exchanged or canceled in whole,
it shall be surrendered by or on behalf of the Clearing Agency or its nominee to
the Securities Registrar for exchange or cancellation as provided in this
Article V. If the Global Capital Security is to be exchanged or canceled in
part, or if another Capital Security is to be exchanged in whole or in part for
a beneficial interest in the Global Capital Security, then either: (i) such
Global Capital Security shall be so surrendered for exchange or cancellation as
provided in this Article V, or (ii) the Liquidation Amount thereof shall be
reduced or increased by an amount equal to the portion thereof to be so
exchanged or canceled or equal to the Liquidation Amount of such other Capital
Security to be so exchanged for a beneficial interest therein, as the case may
be, by means of an appropriate adjustment made on the records of the Security
Registrar, whereupon the Property Trustee, in accordance with the Applicable
Procedures, shall instruct the Clearing Agency or its authorized representative
to make a corresponding adjustment to its records. Upon any such surrender or
adjustment of the Global Capital Security by the Clearing Agency, accompanied by
registration instructions, the Property Trustee shall, subject to Section 5.4(b)
and as otherwise provided in this Article V, authenticate and deliver any
Capital Securities or Restricted Capital Securities, as applicable and as
instructed by the Administrators, issuable in exchange for such Global Capital
Security (or any portion thereof) in accordance with the instructions of the
Clearing Agency. The Property Trustee shall not be liable for any delay in
delivery of such instructions and may conclusively rely on, and shall be fully
protected in relying on, such instructions.
(d) Every Capital Security or Restricted Capital Securities authenticated
and delivered upon registration of, transfer of, or in exchange for or in lieu
of, the Global Capital Security or any portion thereof, whether pursuant to this
Article V or Article IV or otherwise, shall be authenticated and delivered in
the form of, and shall be, a Global Capital Security, unless such Global Capital
Security is registered in the name of a Person other than the Clearing Agency
for such Global Capital Security or a nominee thereof.
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(e) The Clearing Agency or its nominee, as the registered owner of the
Global Capital Security, shall be considered the Holder of the Capital
Securities or the Restricted Capital Securities represented by the Global
Capital Security for all purposes under this Trust Agreement and the Capital
Securities, and owners of beneficial interests in the Global Capital Security
shall hold such interests pursuant to the Applicable Procedures and, except as
otherwise provided herein, shall not be entitled to have any of the individual
Capital Securities or the Restricted Capital Securities represented by the
Global Capital Security registered in their names, shall not receive nor be
entitled to receive physical delivery of any such Capital Securities or the
Restricted Capital Securities in definitive form and shall not be considered the
Holders thereof under this Trust Agreement. Accordingly, any such owner's
beneficial interest in the Global Capital Security shall be shown only on, and
the transfer of such interest shall be effected only through, records maintained
by the Clearing Agency or its nominee. Neither the Property Trustee nor the
Securities Registrar shall have any liability in respect of any transfers
effected by the Clearing Agency.
(f) The rights of owners of beneficial interests in the Global Capital
Security shall be exercised only through the Clearing Agency and shall be
limited to those established by law and agreements between such owners and the
Clearing Agency.
SECTION 5.5. Registration of Transfer and Exchange Generally; Certain Transfers
and Exchanges; Capital Securities Certificates; Securities Act Legends.
(a) The Property Trustee shall keep or cause to be kept at its Corporate
Trust Office a register or registers (the "Securities Register") for the purpose
of registering Capital Securities Certificates and Common Securities
Certificates and transfers and exchanges of Capital Securities Certificates and
Common Securities Certificates and acting as the registrar and transfer agent
with respect to the Capital Securities and Common Securities Certificates (the
"Securities Registrar"), subject to such reasonable regulations as it may
prescribe, and shall provide for the registration of Capital Securities
Certificates and Common Securities Certificates (subject to Section 5.11 in the
case of Common Securities Certificates) in the Securities Register. The Property
Trustee is hereby appointed Securities Registrar. The Securities Registrar shall
maintain stop transfer instructions in the Securities Register and as it
otherwise deems appropriate to restrict the transfer of Restricted Capital
Securities consistent with the terms of this Agreement.
Upon surrender for registration of transfer of any Capital Securities
Certificate at the offices or agencies of the Property Trustee designated for
that purpose, the Administrators shall execute, and the Property Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Capital Securities Certificates of the same series
of any authorized denominations of like tenor and aggregate principal amount and
bearing such restrictive legends (including the Restricted Capital Securities
Legend) as may be required by this Trust Agreement.
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At the option of the Holder, Capital Securities Certificates may be
exchanged for other Capital Securities Certificates of any authorized
denominations, of like tenor and aggregate Liquidation Amount and bearing such
restrictive legends (including the Restricted Capital Securities Legend) as may
be required by this Trust Agreement, upon surrender of the Capital Securities
Certificates to be exchanged at such office or agency of the Property Trustee.
Whenever any securities are so surrendered for exchange, the Administrators
shall execute and the Property Trustee shall authenticate and deliver the
Capital Securities Certificates that the Holder making the exchange is entitled
to receive.
All Capital Securities issued upon any transfer or exchange of Capital
Securities shall be the valid obligations of the Issuer Trust, evidencing the
same obligations, and entitled to the same benefits under this Trust Agreement,
as the Capital Securities surrendered upon such transfer or exchange.
Every Capital Securities Certificate presented or surrendered for transfer
or exchange shall (if so required by the Property Trustee) be duly endorsed, or
be accompanied by a written instrument of transfer in form satisfactory to the
Property Trustee and the Securities Registrar, duly executed by the Holder
thereof or such Holder's attorney duly authorized in writing.
No service charge shall be made to a Holder for any transfer or exchange of
Capital Securities Certificates, but the Property Trustee may require payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any transfer or exchange of Capital Securities
Certificates.
Neither the Issuer Trust nor the Property Trustee shall be required,
pursuant to the provisions of this Section: (i) to issue, register the transfer
of or exchange any Capital Securities Certificates during a period beginning at
the opening of 15 Business Days before the day of selection for redemption of
Capital Securities pursuant to Article IV and ending at the close of business on
the day of mailing of the notice of redemption, or (ii) to register the transfer
of or exchange any Capital Security so selected for redemption in whole or in
part, except, in the case of any such Capital Security to be redeemed in part,
any portion thereof not to be redeemed.
(b) Certain Transfers and Exchanges. Notwithstanding any other provision of
this Trust Agreement, transfers and exchanges of Capital Securities and
beneficial interests in a Global Capital Security shall be made only in
accordance with this Section 5.5(b).
(i) Non-Global Restricted Capital Security to Global Capital Security.
If the Holder of a Restricted Capital Security (other than the Global
Capital Security) wishes at any time to transfer all or any portion of such
Trust Security to a Person who wishes to take delivery thereof in the form
of a beneficial interest in the Global Capital Security, such transfer may
be effected only in accordance with the provisions of this clause (b)(i)
and subject to the Applicable Procedures. Upon receipt by the Security
Registrar of (A) such Restricted Capital Security as provided in Section
5.5(a) and instructions satisfactory to the Security Registrar directing
that a beneficial interest in the Global Capital Security in a specified
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Liquidation Amount not greater than the Liquidation Amount of such
Restricted Capital Security to be credited to a specified Clearing Agency
Participant's account, and (B) a Restricted Securities Certificate duly
executed for transfer by such Holder or such Holder's attorney duly
authorized in writing, then the Security Registrar shall cancel such
Restricted Capital Security (and issue a new Restricted Capital Security in
respect of any untransferred portion thereof) as provided in Section 5.5(a)
and increase the aggregate Liquidation Amount of the Global Capital
Security by the specified Liquidation Amount as provided in Section 5.4(c).
(ii) Non-Global Capital Security to Non-Global Capital Security. A
Trust Security that is not a Global Capital Security may be transferred, in
whole or in part, to a Person who takes delivery in the form of another
Trust Security that is not a Global Capital Security as provided in Section
5.5(a), provided that if the Trust Security to be transferred in whole or
in part is a Restricted Capital Security, the Securities Registrar shall
have received a Restricted Securities Certificate duly executed by the
transferor Holder or such Holder's attorney duly authorized in writing and
the Securities Registrar shall only be required to register the transfer of
such Restricted Securities Certificate upon direction from the Depositor
that such transfer is permissible.
(iii) Exchanges Between Global Capital Security and Non-Global Trust
Security. A beneficial interest in the Global Capital Security may be
exchanged for a Trust Security that is not a Global Capital Security only
as provided in Section 5.4.
(iv) Certain Initial Transfers of Non-Global Trust Securities. In the
case of Trust Securities initially issued other than in global form, an
initial transfer or exchange of such Trust Securities that does not involve
any change in beneficial ownership may be made to an institutional
accredited investor or investors as if such transfer or exchange were not
an initial transfer or exchange; provided that written certification shall
be provided by the transferee and transferor of such Trust Securities to
the Securities Registrar that such transfer or exchange does not involve a
change in beneficial ownership.
(v) Limitations Relating to Principal Amount. Notwithstanding any
other provision of this Trust Agreement and unless otherwise specified as
permitted by this Trust Agreement, Trust Securities or portions thereof may
be transferred or exchanged only in principal amounts of not less than
$50,000.00. Any transfer, exchange or other disposition of Trust Securities
in contravention of this Section 5.5(b)(v) shall be deemed to be void and
of no legal effect whatsoever, any such transferee shall be deemed not to
be the Holder or owner of any beneficial interest in such Trust Securities
for any purpose, including but not limited to the receipt of interest
payable on such Trust Securities, such transferee shall be deemed to have
no interest whatsoever in such Trust Securities, and the Securities
Registrar shall not record any such transfer in the Securities Register.
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(c) Restricted Securities Legend. Except as set forth below, all Capital
Securities shall bear a Restricted Capital Securities Legend:
(i) subject to the following Clauses of this Section 5.5(c), a Capital
Security or any portion thereof that is exchanged, upon transfer or
otherwise, for a Global Capital Security or any portion thereof shall bear
the Restricted Capital Securities Legend while represented thereby;
(ii) subject to the following Clauses of this Section 5.5(c), a new
Capital Security which is not a Global Capital Security and is issued in
exchange for another Capital Security (including a Global Capital Security)
or any portion thereof, upon transfer or otherwise, shall, if such new
Capital Security is required to be issued in the form of a Restricted
Capital Security, bear a Restricted Capital Securities Legend;
(iii) a new Capital Security (other than a Global Capital Security)
that does not bear a Restricted Capital Securities Legend may be issued in
exchange for or in lieu of a Restricted Capital Security or any portion
thereof that bears such a legend if, in the Depositor's judgment, placing
such a legend upon such new Capital Security is not necessary to ensure
compliance with the requirements of the Securities Act and is permissible
under Commission Rule 144(k), and the Property Trustee, at the written
direction of the Administrator of the Issuer Trust in the form of an
Officers' Certificate, shall authenticate and deliver such new Capital
Security as provided in this Article V;
(iv) notwithstanding the foregoing provisions of this Section 5.5(c),
a Successor Capital Security of a Capital Security that does not bear a
Restricted Capital Securities Legend shall not bear such form of legend,
unless the Depositor has reasonable cause to believe that such Successor
Capital Security is a "restricted security" within the meaning of Rule 144
under the Securities Act, in which case the Property Trustee, at the
written direction of any Administrator of the Issuer Trust in the form of
an Officers' Certificate, shall authenticate and deliver a new Capital
Security bearing a Restricted Capital Securities Legend in exchange for
such Successor Capital Security as provided in this Article V; and
(v) Junior Subordinated Debentures distributed to a holder of Capital
Securities upon dissolution of the Issuer Trust shall bear a Restricted
Capital Securities Legend, if the Capital Securities so held bear a similar
legend, absent instructions from the Depositor that such legend can be
removed consistent with the requirements of the Securities Act, and
Commission Rule 144 thereunder.
SECTION 5.6. Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates.
29
If (a) any mutilated Trust Securities Certificate shall be surrendered to
the Securities Registrar, or if the Securities Registrar shall receive evidence
to its satisfaction of the destruction, loss or theft of any Trust Securities
Certificate and (b) there shall be delivered to the Securities Registrar and the
Administrators such security, indemnity and/or other assurance as may be
required by them, in their discretion, to save each of them harmless, then in
the absence of notice that such Trust Securities Certificate shall have been
acquired by a bona fide purchaser, the Administrators, or any one of them, on
behalf of the Issuer Trust shall execute and make available for delivery, and
the Property Trustee shall authenticate, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Trust Securities Certificate, a new Trust
Securities Certificate of like class, tenor and denomination. In connection with
the issuance of any new Trust Securities Certificate under this Section, the
Administrators or the Securities Registrar may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection therewith. Any duplicate Trust Securities Certificate issued pursuant
to this Section 5.6 shall constitute conclusive evidence of an undivided
beneficial interest in the assets of the Issuer Trust corresponding to that
evidenced by the lost, stolen or destroyed Trust Securities Certificate, as if
originally issued, whether or not the lost, stolen or destroyed Trust Securities
Certificate shall be found at any time.
SECTION 5.7. Persons Deemed Holders.
The Issuer Trustees and the Securities Registrar shall treat the Person in
whose name any Trust Securities are issued as the sole owner of such Trust
Securities for the purpose of receiving Distributions and for all other purposes
whatsoever, and none of the Issuer Trustees, the Administrators or the
Securities Registrar shall be bound by any notice to the contrary.
SECTION 5.8. Access to List of Holders' Names and Addresses.
Each Holder and each Owner shall be deemed to have agreed not to hold the
Depositor, the Property Trustee, or the Administrators accountable by reason of
the disclosure of its name and address, regardless of the source from which such
information was derived.
SECTION 5.9. Maintenance of Office or Agency.
The Property Trustee shall designate, with the consent of the
Administrators, which consent shall not be unreasonably withheld, an office or
offices or agency or agencies where Capital Securities Certificates may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Issuer Trustees in respect of the Trust Securities
Certificates may be served. The Property Trustee initially designates its
Corporate Trust Office as its corporate trust office for such purposes. The
Property Trustee shall give prompt written notice to the Depositor, the
Administrators and to the Holders of any change in the location of the
Securities Register or any such office or agency.
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SECTION 5.10. Appointment of Paying Agent.
The Paying Agent shall make Distributions to Holders from the Payment
Account and shall report the amounts of such Distributions to the Property
Trustee and the Administrators. Any Paying Agent shall have the revocable power
to withdraw funds from the Payment Account solely for the purpose of making the
Distributions referred to above. The Property Trustee may revoke such power and
remove any Paying Agent in its sole discretion. The Paying Agent shall initially
be the Property Trustee. Any Person acting as Paying Agent shall be permitted to
resign as Paying Agent upon 30 days' written notice to the Administrators and
the Property Trustee. In the event that the Property Trustee shall no longer be
the Paying Agent or a successor Paying Agent shall resign or its authority to
act be revoked, the Property Trustee shall appoint a successor (which shall be a
bank or trust company) that is reasonably acceptable to the Administrators to
act as Paying Agent. Such successor Paying Agent or any additional Paying Agent
appointed by the Administrators shall execute and deliver to the Issuer Trustees
an instrument in which such successor Paying Agent or additional Paying Agent
shall agree with the Issuer Trustees that as Paying Agent, such successor Paying
Agent or additional Paying Agent will hold all sums, if any, held by it for
payment to the Holders in trust for the benefit of the Holders entitled thereto
until such sums shall be paid to such Holders. The Paying Agent shall return all
unclaimed funds to the Property Trustee and upon removal of a Paying Agent such
Paying Agent shall also return all funds in its possession to the Property
Trustee. The provisions of Sections 8.1, 8.3 and 8.6 herein shall apply to the
Bank also in its role as Paying Agent, for so long as the Bank shall act as
Paying Agent and, to the extent applicable, to any other paying agent appointed
hereunder. Any reference in this Trust Agreement to the Paying Agent shall
include any co-paying agent chosen by the Property Trustee, unless the context
requires otherwise.
SECTION 5.11. Ownership of Common Securities by Depositor.
At Closing, the Depositor shall acquire and retain beneficial and record
ownership of the Common Securities. Neither the Depositor nor any successor
Holder of the Common Securities may transfer less than all the Common
Securities, and the Depositor or any such successor Holder may transfer the
Common Securities only (i) in connection with a consolidation or merger of the
Depositor into another Person or any conveyance, transfer or lease by the
Depositor of its properties and assets substantially as an entirety to any
Person, pursuant to Section 8.1 of the Indenture, or (ii) to an Affiliate of the
Depositor in compliance with applicable law (including the Securities Act and
applicable state securities and blue sky laws); provided that any such transfer
shall be subject to the condition that the transferor shall have obtained (A)
either a ruling from the Internal Revenue Service or an unqualified written
Opinion of Counsel by a firm experienced in such matters addressed to the Issuer
Trust and delivered to the Issuer Trustees to the effect that such transfer will
not (1) cause the Issuer Trust to be treated as issuing a class of interests in
the Issuer Trust differing from the class of interests represented by the Common
Securities originally issued to the Depositor, (2) result in the Issuer Trust
acquiring or disposing of, or being deemed to have acquired or disposed of, an
asset, or (3) result in or cause the Issuer Trust to be treated as anything
other than a grantor trust for United States
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Federal income tax purposes and (B) an unqualified written Opinion of Counsel by
a firm experienced in such matters addressed to the Issuer Trust and delivered
to the Issuer Trustees to the effect that such transfer will not cause the
Issuer Trust to be an "investment company" or controlled by an "investment
company" that is required to be registered under the Investment Company Act. To
the fullest extent permitted by law, any attempted transfer of the Common
Securities, other than as set forth in the immediately preceding sentence, shall
be void. The Administrators shall cause each Common Securities Certificate
issued to the Depositor to contain a legend stating "THIS CERTIFICATE IS NOT
TRANSFERABLE EXCEPT IN COMPLIANCE WITH APPLICABLE LAW AND SECTION 5.11 OF THE
TRUST AGREEMENT."
SECTION 5.12. Notices to Clearing Agency.
To the extent that a notice or other communication to the Holders is
required under this Trust Agreement, with respect to Capital Securities
represented by Global Capital Securities Certificates, the Administrators and
the Issuer Trustees shall give all such notices and communications specified
herein to be given to the Clearing Agency, and shall have no obligations to give
such notice or other communication to the Owners.
SECTION 5.13. Rights of Holders.
(a) The legal title to the Trust Property is vested exclusively in the
Property Trustee (in its capacity as such) in accordance with Section 2.9, and
the Holders shall not have any right or title therein other than the undivided
beneficial ownership interest in the assets of the Issuer Trust conferred by
their Trust Securities and they shall have no right to call for any partition or
division of property, profits or rights of the Issuer Trust, except as described
below. The Trust Securities shall be personal property giving only the rights
specifically set forth therein and in this Trust Agreement. The Trust Securities
shall have no preemptive or similar rights, and when issued and delivered to
Holders against payment of the purchase price therefor, as provided herein, will
be fully paid and nonassessable by the Issuer Trust. Except as otherwise
provided in Section 4.8, the Holders of the Trust Securities, in their
capacities as such, shall be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Laws of the State of Delaware.
(b) For so long as any Capital Securities remain Outstanding, if, upon a
Debenture Event of Default, the Indenture Trustee fails or the holders of not
less than 25% in principal amount of the outstanding Junior Subordinated
Debentures fail to declare the principal of all of the Junior Subordinated
Debentures to be immediately due and payable, the Holders of at least 25% in
Liquidation Amount of the Capital Securities then Outstanding shall have such
right to make such declaration by a notice in writing to the Property Trustee,
the Depositor and the Indenture Trustee.
At any time after such a declaration of acceleration with respect to the
Junior Subordinated Debentures has been made and before a judgment or decree for
payment of the money due has been obtained by the Indenture Trustee as provided
in the Indenture, the Holders
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of a Majority in Liquidation Amount of the Capital Securities, by written notice
to the Property Trustee, the Depositor and the Indenture Trustee, may rescind
and annul such declaration and its consequences if:
(i) the Depositor has paid or deposited with the Indenture Trustee a
sum sufficient to pay
(A) all overdue installments of interest on all of the Junior
Subordinated Debentures,
(B) any accrued Additional Interest on all of the Junior
Subordinated Debentures,
(C) the principal of (and premium, if any, on) any Junior
Subordinated Debentures which have become due otherwise than by such
declaration of acceleration and interest and any Additional Interest
thereon at the rate borne by the Junior Subordinated Debentures, and
(D) all sums paid or advanced by the Indenture Trustee under the
Indenture and the reasonable compensation, expenses, disbursements and
advances of the Indenture Trustee and the Property Trustee, their
agents and counsel; and
(ii) all Events of Default with respect to the Junior Subordinated
Debentures, other than the non-payment of the principal of the Junior
Subordinated Debentures which has become due solely by such acceleration,
have been cured or waived as provided in Section 5.13 of the Indenture.
If the Property Trustee fails to annul any such declaration and waive such
default, the Holders of at least a Majority in Liquidation Amount of the Capital
Securities shall also have the right to rescind and annul such declaration and
its consequences by written notice to the Depositor, the Property Trustee and
the Indenture Trustee, subject to the satisfaction of the conditions set forth
in clauses (i) and (ii) of this Section 5.13(b).
The Holders of at least a Majority in Liquidation Amount of the Capital
Securities may, on behalf of the Holders of all the Capital Securities, waive
any past default under the Indenture, except a default in the payment of
principal or interest (unless such default has been cured and a sum sufficient
to pay all matured installments of interest and principal due otherwise than by
acceleration has been deposited with the Indenture Trustee) or a default in
respect of a covenant or provision which under the Indenture cannot be modified
or amended without the consent of the holder of each outstanding Junior
Subordinated Debenture. No such rescission shall affect any subsequent default
or impair any right consequent thereon.
Upon receipt by the Property Trustee of written notice declaring such an
acceleration, or rescission and annulment thereof, by Holders of the Capital
Securities, all or part of which is represented by the Global Capital Securities
Certificate, a record date shall be
33
established for determining Holders of Outstanding Capital Securities entitled
to join in such notice, which record date shall be at the close of business on
the day the Property Trustee receives such notice. The Holders on such record
date, or their duly designated proxies, and only such Persons, shall be entitled
to join in such notice, whether or not such Holders remain Holders after such
record date; provided that, unless such declaration of acceleration, or
rescission and annulment, as the case may be, shall have become effective by
virtue of the requisite percentage having joined in such notice prior to the day
which is 90 days after such record date, such notice of declaration of
acceleration, or rescission and annulment, as the case may be, shall
automatically and without further action by any Holder be canceled and of no
further effect. Nothing in this paragraph shall prevent a Holder, or a proxy of
a Holder, from giving, after expiration of such 90-day period, a new written
notice of declaration of acceleration, or rescission and annulment thereof, as
the case may be, that is identical to a written notice which has been canceled
pursuant to the proviso to the preceding sentence, in which event a new record
date shall be established pursuant to the provisions of this Section 5.13(b).
(c) For so long as any Capital Securities remain Outstanding, to the
fullest extent permitted by law and subject to the terms of this Trust Agreement
and the Indenture, upon a Debenture Event of Default specified in Section 5.1(1)
or 5.1(2) of the Indenture, any Holder of Capital Securities shall have the
right to institute a proceeding directly against the Depositor, pursuant to
Section 5.8 of the Indenture, for enforcement of payment to such Holder of the
principal amount of or interest on Junior Subordinated Debentures having an
aggregate principal amount equal to the aggregate Liquidation Amount of the
Capital Securities of such Holder (a "Direct Action"). Except as set forth in
Sections 5.13(b) and 5.13(c), the Holders of Capital Securities shall have no
right to exercise directly any right or remedy available to the holders of, or
in respect of, the Junior Subordinated Debentures.
ARTICLE VI
ACTS OF HOLDERS; MEETINGS; VOTING
SECTION 6.1. Limitations on Holders' Voting Rights.
(a) Except as provided in this Trust Agreement and in the Indenture and as
otherwise required by law, no Holder of Capital Securities shall have any right
to vote or in any manner otherwise control the administration, operation and
management of the Issuer Trust or the obligations of the parties hereto, nor
shall anything herein set forth or contained in the terms of the Trust
Securities Certificates be construed so as to constitute the Holders from time
to time as members of an association.
(b) So long as any Junior Subordinated Debentures are held by the Property
Trustee on behalf of the Issuer Trust, the Property Trustee shall not (i) direct
the time, method and place of conducting any proceeding for any remedy available
to the Indenture Trustee, or execute any trust or power conferred on the
Property Trustee with respect to such Junior Subordinated Debentures, (ii) waive
any past default that may be waived under Section 5.13 of
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the Indenture, (iii) exercise any right to rescind or annul a declaration that
the principal of all the Junior Subordinated Debentures shall be due and payable
or (iv) consent to any amendment, modification or termination of the Indenture
or the Junior Subordinated Debentures, where such consent shall be required,
without, in each case, obtaining the prior approval of the Holders of at least a
Majority in Liquidation Amount of the Capital Securities, provided, however,
that where a consent under the Indenture would require the consent of each
holder of Junior Subordinated Debentures affected thereby, no such consent shall
be given by the Property Trustee without the prior written consent of each
Holder of Capital Securities. The Property Trustee shall not revoke any action
previously authorized or approved by a vote of the Holders of Capital
Securities, except by a subsequent vote of the Holders of Capital Securities.
The Property Trustee shall notify all Holders of the Capital Securities of any
notice of default received with respect to the Junior Subordinated Debentures.
In addition to obtaining the foregoing approvals of the Holders of the Capital
Securities, prior to taking any of the foregoing actions, the Property Trustee
shall, at the expense of the Depositor, obtain an Opinion of Counsel experienced
in such matters to the effect that such action will not cause the Issuer Trust
to be taxable other than as a grantor trust for United States Federal income tax
purposes.
(c) If any proposed amendment to the Trust Agreement provides for, or the
Issuer Trust otherwise proposes to effect, (i) any action that would adversely
affect in any material respect the interests, powers, preferences or special
rights of the Capital Securities, whether by way of amendment to the Trust
Agreement or otherwise, or (ii) the dissolution, winding-up or termination of
the Issuer Trust, other than pursuant to the terms of this Trust Agreement, then
the Holders of Outstanding Trust Securities as a class will be entitled to vote
on such amendment or proposal and such amendment or proposal shall not be
effective except with the approval of the Holders of at least a Majority in
Liquidation Amount of the Capital Securities. Notwithstanding any other
provision of this Trust Agreement, no amendment to this Trust Agreement may be
made if, as a result of such amendment, it would cause the Issuer Trust to be
taxable other than as a grantor trust for United States Federal income tax
purposes.
SECTION 6.2. Notice of Meetings.
Notice of all meetings of the Holders, stating the time, place and purpose
of the meeting, shall be given by the Property Trustee pursuant to Section 10.8
to each Holder of record, at his registered address, at least 15 days and not
more than 90 days before the meeting. At any such meeting, any business properly
before the meeting may be so considered whether or not stated in the notice of
the meeting. Any adjourned meeting may be held as adjourned without further
notice.
SECTION 6.3. Meetings of Holders.
No annual meeting of Holders is required to be held. The Property Trustee,
however, shall call a meeting of Holders to vote on any matter upon the written
request of the Holders of record of 25% of the aggregate Liquidation Amount of
the Capital Securities and the Administrators or the Property Trustee may, at
any time in their discretion, call a meeting of Holders of Capital Securities to
vote on any matters as to which Holders are entitled to vote.
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Holders of at least a Majority in Liquidation Amount of the Capital
Securities, present in person or represented by proxy, shall constitute a quorum
at any meeting of Holders of the Capital Securities.
If a quorum is present at a meeting, an affirmative vote by the Holders of
record present, in person or by proxy, holding Capital Securities representing
at least a Majority in Liquidation Amount of the Capital Securities held by the
Holders present, either in person or by proxy, at such meeting shall constitute
the action of the Holders of Capital Securities, unless this Trust Agreement
requires a greater number of affirmative votes.
SECTION 6.4. Voting Rights.
Holders shall be entitled to one vote for each $50,000.00 of Liquidation
Amount represented by their Outstanding Trust Securities in respect of any
matter as to which such Holders are entitled to vote.
SECTION 6.5. Proxies, etc.
At any meeting of Holders, any Holder entitled to vote at such meeting may
vote by proxy, provided that no proxy shall be voted at any meeting unless it
shall have been placed on file with the Property Trustee, or with such other
officer or agent of the Issuer Trust as the Property Trustee may direct, for
verification prior to the time at which such vote shall be taken. Pursuant to a
resolution of the Property Trustee, proxies may be solicited in the name of the
Property Trustee or one or more officers of the Property Trustee. Only Holders
of record shall be entitled to vote. When Trust Securities are held jointly by
several persons, any one of them may vote at any meeting in person or by proxy
in respect of such Trust Securities, but if more than one of them shall be
present at such meeting in person or by proxy, and such joint owners or their
proxies so present disagree as to any vote to be cast, such vote shall not be
received in respect of such Trust Securities. A proxy purporting to be executed
by or on behalf of a Holder shall be deemed valid unless challenged at or prior
to its exercise, and the burden of proving invalidity shall rest on the
challenger. No proxy shall be valid more than three years after its date of
execution.
SECTION 6.6. Holder Action by Written Consent.
Any action which may be taken by Holders at a meeting may be taken without
a meeting and without prior notice if Holders holding at least a Majority in
Liquidation Amount of all Trust Securities entitled to vote in respect of such
action (or such larger proportion thereof as shall be required by any other
provision of this Trust Agreement) shall consent to the action in writing.
SECTION 6.7. Record Date for Voting and Other Purposes.
36
For the purposes of determining the Holders who are entitled to notice of
and to vote at any meeting or by written consent, or to participate in any
distribution on the Trust Securities in respect of which a record date is not
otherwise provided for in this Trust Agreement, or for the purpose of any other
action, the Administrators or Property Trustee may from time to time fix a date,
not more than 90 days prior to the date of any meeting of Holders or the payment
of a distribution or other action, as the case may be, as a record date for the
determination of the identity of the Holders of record for such purposes.
SECTION 6.8. Acts of Holders.
Any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Trust Agreement to be given, made or
taken by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as otherwise expressly provided herein, such
action shall become effective when such instrument or instruments are delivered
to the Property Trustee. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as an "Act" of
the Holders signing such instrument or instruments. Proof of execution of any
such instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Trust Agreement and (subject to Section 8.1) conclusive
in favor of the Issuer Trustees, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such instrument or
writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which any Issuer Trustee or Administrator receiving the same deems
sufficient.
The ownership of Trust Securities shall be proved by the Securities
Register.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Holder of any Trust Security shall bind every future Holder of
the same Trust Security and the Holder of every Trust Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Issuer Trustees,
the Administrators or the Issuer Trust in reliance thereon, whether or not
notation of such action is made upon such Trust Security.
Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Trust Security may do so with
regard to all or any part of the Liquidation Amount of such Trust Security or by
one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such Liquidation Amount.
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If any dispute shall arise among the Holders, the Administrators or the
Issuer Trustees with respect to the authenticity, validity or binding nature of
any request, demand, authorization, direction, consent, waiver or other Act of
such Holder or Issuer Trustee under this Article VI, then the determination of
such matter by the Property Trustee shall be conclusive with respect to such
matter.
SECTION 6.9. Inspection of Records.
Upon reasonable notice to the Administrators and the Property Trustee, the
records of the Issuer Trust shall be open to inspection by Holders during normal
business hours for any purpose reasonably related to such Holder's interest as a
Holder.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
SECTION 7.1. Representations and Warranties of the Property Trustee and the
Delaware Trustee.
The Property Trustee and the Delaware Trustee, each severally on behalf of
and as to itself, hereby represents and warrants for the benefit of the
Depositor and the Holders that:
(a) The Property Trustee is a banking corporation with trust powers,
duly organized, validly existing and in good standing under the laws of the
State of Delaware with the trust powers 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 have been duly authorized by all necessary corporate
action on the part of the Property Trustee; and this Trust Agreement has
been duly executed and delivered by the Property Trustee, and constitutes a
legal, valid and binding obligation of the Property Trustee, enforceable
against it in accordance with its terms, subject to applicable bankruptcy,
reorganization, receivership, conservatorship, 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 do not conflict with or constitute a breach of the
certificate of incorporation or by-laws of the Property Trustee.
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(d) At Closing, the Property Trustee has not knowingly created any
Liens on the Trust Securities.
(e) No consent, approval or authorization of, or registration with or
notice to, any state or federal banking authority is required for the
execution, delivery or performance by the Property Trustee, of this Trust
Agreement.
(f) The Delaware Trustee is duly organized, validly existing and in
good standing under the laws of the State of Delaware, with the trust
powers and authority to execute and deliver, and to carry out and perform
its obligations under the terms of, this Trust Agreement.
(g) The execution, delivery and performance by the Delaware Trustee of
this Trust Agreement have been duly authorized by all necessary corporate
action on the part of the Delaware Trustee; and this Trust Agreement has
been duly executed and delivered by the Delaware Trustee, and constitutes a
legal, valid and binding obligation of the Delaware Trustee, enforceable
against it in accordance with its terms, subject to applicable bankruptcy,
reorganization, receivership, conservatorship, moratorium, insolvency, and
other similar laws affecting creditors' right generally and to general
principles of equity and the discretion of the court (regardless of whether
the enforcement of such remedies is considered in a proceeding in equity or
at law).
(h) The execution, delivery and performance of this Trust Agreement by
the Delaware Trustee do not conflict with or constitute a breach of the
certificate of incorporation or by-laws of the Delaware Trustee.
(i) No consent, approval or authorization of, or registration with or
notice to any state or Federal banking authority is required for the
execution, delivery or performance by the Delaware Trustee, of this Trust
Agreement.
(j) The Delaware Trustee is an entity that has its principal place of
business in the State of Delaware.
SECTION 7.2. Representations and Warranties of Depositor.
The Depositor hereby represents and warrants for the benefit of the
Holders that:
(a) The Trust Securities Certificates issued at Closing on behalf of
the Issuer Trust have been duly authorized and will have been duly and
validly executed, and, subject to payment therefor, issued and delivered by
the Issuer Trustees pursuant to the terms and provisions of, and in
accordance with the requirements of, this Trust Agreement, and the Holders
will be, as of each such date, entitled to the benefits of this Trust
Agreement; and
(b) There are no taxes, fees or other governmental charges payable by
the Issuer Trust (or the Issuer Trustees on behalf of the Issuer Trust)
under the laws of the State
39
of Delaware or any political subdivision thereof in connection with the
execution, delivery and performance by either the Property Trustee or the
Delaware Trustee, as the case may be, of this Trust Agreement.
ARTICLE VIII
THE ISSUER TRUSTEES; THE ADMINISTRATORS
SECTION 8.1. Certain Duties and Responsibilities.
(a) The duties and responsibilities of the Issuer Trustees and the
Administrators shall be as provided by this Trust Agreement and, in the case of
the Property Trustee, by the Trust Indenture Act. Notwithstanding the foregoing,
no provision of this Trust Agreement shall require the Issuer Trustees or the
Administrators to expend or risk their own funds or otherwise incur any
financial liability in the performance of any of their duties hereunder, or in
the exercise of any of their rights or powers, if they shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not herein
expressly so provided, every provision of this Trust Agreement relating to the
conduct or affecting the liability of or affording protection to the Issuer
Trustees or the Administrators shall be subject to the provisions of this
Section. Nothing in this Trust Agreement shall be construed to release an
Administrator or an Issuer Trustee from liability for its own negligent action,
its own negligent failure to act, or its own willful misconduct. To the extent
that, at law or in equity, an Issuer Trustee or Administrator has duties and
liabilities relating to the Issuer Trust or to the Holders, such Issuer Trustee
or Administrator shall not be liable to the Issuer Trust or to any Holder for
such Issuer Trustee's or Administrator's good faith reliance on the provisions
of this Trust Agreement. The provisions of this Trust Agreement, to the extent
that they restrict the duties and liabilities of the Issuer Trustees and
Administrators otherwise existing at law or in equity, are agreed by the
Depositor and the Holders to replace such other duties and liabilities of the
Issuer Trustees and Administrators.
(b) All payments made by the Property Trustee or a Paying Agent in respect
of the Trust Securities shall be made only from the revenue and proceeds from
the Trust Property and only to the extent that there shall be sufficient revenue
or proceeds from the Trust Property to enable the Property Trustee or a Paying
Agent to make payments in accordance with the terms hereof. Each Holder, by its
acceptance of a Trust Security, agrees that it will look solely to the revenue
and proceeds from the Trust Property to the extent legally available for
distribution to it as herein provided and that neither the Issuer Trustees nor
the Administrators are personally liable to it for any amount distributable in
respect of any Trust Security or for any other liability in respect of any Trust
Security. This Section 8.1(b) does not limit the liability of the Issuer
Trustees expressly set forth elsewhere in this Trust Agreement or, in the case
of the Property Trustee, in the Trust Indenture Act.
40
(c) The Property Trustee, before the occurrence of any Event of Default and
after the curing of all Events of Default that may have occurred, shall
undertake to perform only such duties as are specifically set forth in this
Trust Agreement (including pursuant to Section 10.10), and no implied covenants
shall be read into this Trust Agreement against the Property Trustee. If an
Event of Default has occurred (that has not been cured or waived pursuant to
Section 5.13 of the Indenture), the Property Trustee shall enforce this Trust
Agreement for the benefit of the Holders and shall exercise such of the rights
and powers vested in it by this Trust Agreement, and use the same degree of care
and skill in its exercise thereof, as a prudent person would exercise or use
under the circumstances in the conduct of his or her own affairs.
(d) No provision of this Trust Agreement shall be construed to relieve the
Property Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of any Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Property Trustee shall be
determined solely by the express provisions of this Trust Agreement
(including pursuant to Section 10.10), and the Property Trustee shall
not be liable except for the performance of such duties and
obligations as are specifically set forth in this Trust Agreement
(including pursuant to Section 10.10); and
(B) in the absence of bad faith on the part of the Property
Trustee, the Property Trustee may conclusively rely, as to the truth
of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Property
Trustee and conforming to the requirements of this Trust Agreement;
but in the case of any such certificates or opinions that by any
provision hereof or of the Trust Indenture Act are specifically
required to be furnished to the Property Trustee, the Property Trustee
shall be under a duty to examine the same to determine whether or not
they conform to the requirements of this Trust Agreement;
(ii) the Property Trustee shall not be liable for any error of
judgment made in good faith by an authorized officer of the Property
Trustee, unless it shall be proved that the Property Trustee was negligent
in ascertaining the pertinent facts;
(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 at least a Majority in Liquidation Amount
of the Capital Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the Property Trustee,
or exercising any trust or power conferred upon the Property Trustee under
this Trust Agreement;
(iv) the Property Trustee's sole duty with respect to the custody,
safe keeping and physical preservation of the Junior Subordinated
Debentures and the
41
Payment Account shall be to deal with such property in a similar manner as
the Property Trustee deals with similar property for its own account,
subject to the protections and limitations on liability afforded to the
Property Trustee under this Trust Agreement and the Trust Indenture Act;
(v) the Property Trustee shall not be liable for any interest on any
money received by it except as it may otherwise agree with the Depositor;
and money held by the Property Trustee need not be segregated from other
funds held by it except in relation to the Payment Account maintained by
the Property Trustee pursuant to Section 3.1 and except to the extent
otherwise required by law;
(vi) the Property Trustee shall not be responsible for monitoring the
compliance by the Administrators or the Depositor with their respective
duties under this Trust Agreement, nor shall the Property Trustee be liable
for the default or misconduct of any other Issuer Trustee, the
Administrators or the Depositor; and
(vii) no provision of this Trust Agreement shall require the Property
Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers, if the Property Trustee shall have
reasonable grounds for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this Trust
Agreement or adequate indemnity against such risk or liability is not
reasonably assured to it.
(e) The Administrators shall not be responsible for monitoring the
compliance by the Issuer Trustees or the Depositor with their respective duties
under this Trust Agreement, nor shall any Administrator be liable for the
default or misconduct of any other Administrator, the Issuer Trustees or the
Depositor.
SECTION 8.2. Certain Notices.
(a) Within five Business Days after the occurrence of any Event of Default
actually known to a Responsible Officer of the Property Trustee, the Property
Trustee shall transmit, in the manner and to the extent provided in Section
10.8, notice of such Event of Default to the Holders and the Administrators,
unless such Event of Default shall have been cured or waived.
(b) Within five Business Days after the receipt of notice of the
Depositor's exercise of its right to defer the payment of interest on the Junior
Subordinated Debentures pursuant to the Indenture, the Property Trustee shall
transmit, in the manner and to the extent provided in Section 10.8, notice of
such exercise to the Holders and the Administrators, unless such exercise shall
have been revoked.
SECTION 8.3. Certain Rights of Property Trustee.
Subject to the provisions of Section 8.1:
42
(a) the Property Trustee may conclusively rely and shall be fully protected
in acting or refraining from acting in good faith upon any resolution, Opinion
of Counsel, certificate, written representation of a Holder or transferee,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(b) any direction or act of the Depositor contemplated by this Trust
Agreement shall be sufficiently evidenced by an Officers' Certificate;
(c) the Property Trustee shall have no duty to see to any recording, filing
or registration of any instrument (including any financing or continuation
statement or any filing under tax or securities laws) or any re-recording,
refiling or re-registration thereof;
(d) the Property Trustee may consult with counsel of its own choosing
(which counsel may be counsel to the Depositor or any of its Affiliates, and may
include any of its employees) and the advice of such counsel shall be full and
complete authorization and protection in respect of any action taken suffered or
omitted by it hereunder in good faith and in reliance thereon and in accordance
with such advice; the Property Trustee shall have the right at any time to seek
instructions concerning the administration of this Trust Agreement from any
court of competent jurisdiction;
(e) the Property Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Trust Agreement at the request or
direction of any of the Holders pursuant to this Trust Agreement, unless such
Holders shall have offered to the Property Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction; provided that
nothing contained in this Section 8.3(e) shall be taken to relieve the Property
Trustee, upon the occurrence of an Event of Default, of its obligation to
exercise the rights and powers vested in it by this Trust Agreement;
(f) the Property Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond,
debenture, note or other evidence of indebtedness or other paper or document,
unless requested in writing to do so by one or more Holders, but the Property
Trustee may make such further inquiry or investigation into such facts or
matters as it may see fit;
(g) the Property Trustee may execute any of the trusts or powers hereunder
or perform any of its duties hereunder either directly or by or through its
agents or attorneys, provided that the Property Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder;
(h) whenever in the administration of this Trust Agreement the Property
Trustee shall deem it desirable to receive instructions with respect to
enforcing any remedy or
43
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 Trust Securities as
would be entitled to direct the Property Trustee under the terms of the Trust
Securities in respect of such remedy, right or action), (ii) may refrain from
enforcing such remedy or right or taking such other action until such
instructions are received, and (iii) shall be fully protected in acting in
accordance with such instructions; and
(i) except as otherwise expressly provided by this Trust Agreement, the
Property Trustee shall not be under any obligation to take any action that is
discretionary under the provisions of this Trust Agreement.
No provision of this Trust Agreement shall be deemed to impose any duty or
obligation on any Issuer Trustee or Administrator to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which the Property Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to any Issuer Trustee or
Administrator shall be construed to be a duty.
SECTION 8.4. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Trust Securities Certificates
shall be taken as the statements of the Issuer Trust, and neither the Issuer
Trustees nor the Administrators assume any responsibility for their correctness.
The Issuer Trustees and the Administrators shall not be accountable for the use
or application by the Depositor of the proceeds of the Junior Subordinated
Debentures.
SECTION 8.5. May Hold Securities.
The Depositor, the Administrators, any Issuer Trustee or any other agent of
any Issuer Trustee or the Issuer Trust, in its individual or any other capacity,
may become the owner or pledgee of Trust Securities and, subject to Sections
5.5(c), 8.8 and 8.13 and except as provided in the definition of the term
"Outstanding" in Article I, may otherwise deal with the Issuer Trust with the
same rights it would have if it were not the Depositor, an Administrator, Issuer
Trustee or such other agent.
SECTION 8.6. Compensation; Indemnity; Fees.
The Depositor agrees:
(a) to pay to the Issuer Trustees from time to time reasonable compensation
for all services rendered by them hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust);
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(b) to reimburse the Issuer Trustees upon request for all reasonable
expenses, disbursements and advances incurred or made by the Issuer Trustees in
accordance with any provision of this Trust Agreement (including the reasonable
compensation, expenses and disbursements of its agents and counsel), except any
such expense, disbursement or advance as may be attributable to their negligence
or willful misconduct; and
(c) to the fullest extent permitted by applicable law, to indemnify and
hold harmless (i) each Issuer Trustee, (ii) each Administrator, (iii) any
Affiliate of any Issuer Trustee, (iv) any officer, director, shareholder,
employee, representative or agent of any Issuer Trustee, and (v) any employee or
agent of the Issuer Trust, (referred to herein as an "Indemnified Person") from
and against any loss, damage, liability, tax, penalty, expense or claim of any
kind or nature whatsoever incurred by such Indemnified Person arising out of or
in connection with the creation, operation or dissolution of the Issuer Trust or
any act or omission performed or omitted by such Indemnified Person in good
faith on behalf of the Issuer Trust and in a manner such Indemnified Person
reasonably believed to be within the scope of authority conferred on such
Indemnified Person by this Trust Agreement, except that no Indemnified Person
shall be entitled to be indemnified in respect of any loss, damage or claim
incurred by such Indemnified Person by reason of negligence or willful
misconduct with respect to such acts or omissions.
The provisions of this Section 8.6 shall survive the termination of this
Trust Agreement and the resignation or removal of the Indemnified Persons.
The obligation of the Depositor under this Section 8.6 to compensate,
reimburse and indemnify the Issuer Trustees shall be secured by a Lien upon all
Trust Property (except funds held in trust for the benefit of Holders of
particular Trust Securities), but only to the extent of the interest of the
Holder of the Common Securities therein.
The Depositor, any Administrator and any Issuer Trustee may engage in or
possess an interest in other business ventures of any nature or description,
independently or with others, similar or dissimilar to the business of the
Issuer Trust, and the Issuer Trust and the Holders of Trust Securities shall
have no rights by virtue of this Trust Agreement in and to such independent
ventures or the income or profits derived therefrom, and the pursuit of any such
venture, even if competitive with the business of the Issuer Trust, shall not be
deemed wrongful or improper. Neither the Depositor, any Administrator, nor any
Issuer Trustee shall be obligated to present any particular investment or other
opportunity to the Issuer Trust even if such opportunity is of a character that,
if presented to the Issuer Trust, could be taken by the Issuer Trust, and the
Depositor, any Administrator or any Issuer Trustee shall have the right to take
for its own account (individually or as a partner or fiduciary) or to recommend
to others any such particular investment or other opportunity. Any Issuer
Trustee may engage or be interested in any financial or other transaction with
the Depositor or any Affiliate of the Depositor, or may act as depository for,
trustee or agent for, or act on any committee or body of holders of, securities
or other obligations of the Depositor or its Affiliates.
SECTION 8.7. Corporate Property Trustee Required; Eligibility of Trustees and
Administrators.
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(a) There shall at all times be a Property Trustee hereunder with respect
to the Trust Securities. The Property Trustee shall be a Person that is a
national or state chartered bank and eligible pursuant to the Trust Indenture
Act to act as such and has a combined capital and surplus of at least
$50,000,000.00 If any such Person publishes reports of condition at least
annually, pursuant to law or to the requirements of its supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
the Property Trustee with respect to the Trust Securities shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article VIII. At the time of appointment, the Property Trustee must have
securities rated in one of the three highest rating categories by a nationally
recognized statistical rating organization.
(b) There shall at all times be one or more Administrators hereunder. Each
Administrator shall be either a natural person who is at least 21 years of age
or a legal entity that shall act through one or more persons authorized to bind
that entity. An employee, officer or Affiliate of the Depositor may serve as an
Administrator.
(c) There shall at all times be a Delaware Trustee. The Delaware Trustee
shall either be (i) a natural person who is at least 21 years of age and a
resident of the State of Delaware or (ii) a legal entity with its principal
place of business in the State of Delaware and that otherwise meets the
requirements of applicable Delaware law that shall act through one or more
persons authorized to bind such entity.
SECTION 8.8. Conflicting Interests.
(a) If the Property Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Property Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Trust
Agreement.
(b) The Guarantee and the Indenture shall be deemed to be sufficiently
described in this Trust Agreement for the purposes of clause (i) of the first
proviso contained in Section 310(b) of the Trust Indenture Act.
SECTION 8.9. Co-Trustees and Separate Trustee.
Unless an Event of Default shall have occurred and be continuing, at any
time or times, for the purpose of meeting the legal requirements of the Trust
Indenture Act or of any jurisdiction in which any part of the Trust Property may
at the time be located, the Property Trustee shall have power to appoint, and
upon the written request of the Property Trustee, the Depositor and the
Administrators shall for such purpose join with the Property Trustee in the
execution, delivery, and performance of all instruments and agreements necessary
or proper to appoint, one or more Persons approved by the Property Trustee
either to act as co-trustee, jointly with the Property Trustee, of all or any
part of such Trust Property, or to the extent required
46
by law to act as separate trustee of any such property, in either case with such
powers as may be provided in the instrument of appointment, and to vest in such
Person or Persons in the capacity aforesaid, any property, title, right or power
deemed necessary or desirable, subject to the other provisions of this Section.
Any co-trustee or separate trustee appointed pursuant to this Section shall
either be (i) a natural person who is at least 21 years of age and a resident of
the United States or (ii) a legal entity with its principal place of business in
the United States that shall act through one or more persons authorized to bind
such entity.
Should any written instrument from the Depositor be required by any
co-trustee or separate trustee so appointed for more fully confirming to such
co-trustee or separate trustee such property, title, right, or power, any and
all such instruments shall, on request, be executed, acknowledged and delivered
by the Depositor.
Every co-trustee or separate trustee shall, to the extent permitted by law,
but to such extent only, be appointed subject to the following terms, namely:
(a) The Trust Securities shall be executed by one or more Administrators,
and the Trust Securities shall be authenticated and delivered by the Property
Trustee and all rights, powers, duties, and obligations hereunder in respect of
the custody of securities, cash and other personal property held by, or required
to be deposited or pledged with, the Property Trustee specified hereunder, shall
be exercised, solely by the Property Trustee and not by such co-trustee or
separate trustee.
(b) The rights, powers, duties, and obligations hereby conferred or imposed
upon the Property Trustee in respect of any property covered by such appointment
shall be conferred or imposed upon and exercised or performed by the Property
Trustee and such co-trustee or separate trustee jointly, as shall be provided in
the instrument appointing such co-trustee or separate trustee, except to the
extent that under any law of any jurisdiction in which any particular act is to
be performed, the Property Trustee shall be incompetent or unqualified to
perform such act, in which event such rights, powers, duties and obligations
shall be exercised and performed by such co-trustee or separate trustee.
(c) The Property Trustee at any time, by an instrument in writing executed
by it, with the written concurrence of the Depositor, may accept the resignation
of or remove any co-trustee or separate trustee appointed under this Section,
and, in case a Debenture Event of Default has occurred and is continuing, the
Property Trustee shall have power to accept the resignation of, or remove, any
such co-trustee or separate trustee without the concurrence of the Depositor.
Upon the written request of the Property Trustee, the Depositor shall join with
the Property Trustee in the execution, delivery and performance of all
instruments and agreements necessary or proper to effectuate such resignation or
removal. A successor to any co-trustee or separate trustee so resigned or
removed may be appointed in the manner provided in this Section 8.9.
(d) No co-trustee or separate trustee hereunder shall be personally liable
by reason of any act or omission of the Property Trustee or any other trustee
hereunder.
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(e) The Property Trustee shall not be liable by reason of any act of a
co-trustee or separate trustee.
(f) Any Act of Holders delivered to the Property Trustee shall be deemed to
have been delivered to each such co-trustee and separate trustee.
SECTION 8.10. Resignation and Removal; Appointment of Successor.
No resignation or removal of any Issuer Trustee (the "Relevant Trustee")
and no appointment of a successor trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor trustee in
accordance with the applicable requirements of Section 8.11.
Subject to the immediately preceding paragraph, a Relevant Trustee may
resign at any time by giving written notice thereof to the Holders. The Holder
of the Common Securities shall appoint a successor by requesting from at least
three Persons meeting the eligibility requirements its expenses and charges to
serve as the successor trustee on a form provided by the Administrators, and
selecting the Person who agrees to the lowest expenses and charges. If the
instrument of acceptance by the successor trustee required by Section 8.11 shall
not have been delivered to the Relevant Trustee within 60 days after the giving
of such notice of resignation, the Relevant Trustee may petition, at the expense
of the Issuer Trust, any court of the State of Delaware for the appointment of a
successor Relevant Trustee.
The Property Trustee or the Delaware Trustee may be removed at any time (i)
for cause (including upon the occurrence of an Event of Default described in
subparagraph (5) of the definition thereof with respect to the Relevant Trustee)
by the Holder of the Common Securities, or (ii) if a Debenture Event of Default
shall have occurred and be continuing at any time, by Act of the Holders of at
least a Majority in Liquidation Amount of the Capital Securities, delivered to
the Relevant Trustee (in its individual capacity and on behalf of the Issuer
Trust).
If a Relevant Trustee shall be removed or become incapable of acting as
Issuer Trustee, or if any vacancy shall occur in the office of any Issuer
Trustee for any cause, the Holder of the Common Securities shall promptly
appoint a successor Relevant Trustee or Trustees, and such successor Issuer
Trustee shall comply with the applicable requirements of Section 8.11, provided,
however, if a Debenture Event of Default shall have occurred and be continuing
at such time, the Holders of the Capital Securities, by Act of the Holders of
record of not less than 25% in aggregate Liquidation Amount of the Capital
Securities then Outstanding delivered to such Relevant Trustee, shall appoint
such successor trustee. If no successor trustee shall have been so appointed by
the Holder of the Common Securities or the Holders of the Capital Securities, as
applicable, or shall not have accepted appointment in the manner required by
Section 8.11 hereof, any Holder, on behalf of himself and all others similarly
situated, or any other Issuer Trustee, may petition any court in the State of
Delaware for the appointment of a successor trustee.
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The Property Trustee shall give notice of each resignation and each removal
of a Relevant Trustee and each appointment of a successor trustee to all Holders
in the manner provided in Section 10.8 and shall give notice to the Depositor
and to the Administrators. Each notice shall include the name of the Relevant
Trustee and the address of its Corporate Trust Office if it is the Property
Trustee.
Notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event any Delaware Trustee who is a natural person dies or
becomes, in the opinion of the Holder of the Common Securities, incompetent or
incapacitated, the vacancy created by such death, incompetence or incapacity may
be filled by the Property Trustee following the procedures regarding expenses
and charges set forth above (with the successor in each case being a Person who
satisfies the eligibility requirements for the Delaware Trustee, as the case may
be, set forth in Section 8.7).
SECTION 8.11. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Relevant Trustee, the
retiring Relevant Trustee and each such successor Relevant Trustee (if requested
by the Depositor) with respect to the Trust Securities shall execute,
acknowledge and deliver an amendment hereto wherein each successor Relevant
Trustee shall accept such appointment and which (a) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Relevant Trustee all the rights, powers, trusts and
duties of the retiring Relevant Trustee with respect to the Trust Securities and
the Issuer Trust, and (b) shall add to or change any of the provisions of this
Trust Agreement as shall be necessary to provide for or facilitate the
administration of the Issuer Trust by more than one Relevant Trustee, it being
understood that nothing herein or in such amendment shall constitute such
Relevant Trustee a co-trustee, and upon the execution and delivery of such
amendment, the resignation or removal of the retiring Relevant Trustee shall
become effective to the extent provided therein and each such successor Relevant
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Relevant Trustee; but,
on request of the Issuer Trust or any successor Relevant Trustee such retiring
Relevant Trustee shall duly assign, transfer and deliver to such successor
Relevant Trustee all Trust Property, all proceeds thereof and money held by such
retiring Relevant Trustee hereunder with respect to the Trust Securities and the
Issuer Trust.
Upon request of any such successor Relevant Trustee, the Issuer Trust shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Relevant Trustee all such rights, powers and trusts
referred to in the preceding paragraph.
No successor Relevant Trustee shall accept its appointment unless at the
time of such acceptance such successor Relevant Trustee shall be qualified and
eligible under this Article VIII.
SECTION 8.12. Merger, Conversion, Consolidation or Succession to Business.
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Any Person into which the Property Trustee or the Delaware Trustee may be
merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which such Relevant
Trustee shall be a party, or any Person succeeding to all or substantially all
the corporate trust business of such Relevant Trustee, shall be the successor of
such Relevant Trustee hereunder, provided that such Person shall be otherwise
qualified and eligible under this Article VIII, without the execution or filing
of any paper or any further act on the part of any of the parties hereto.
SECTION 8.13. Preferential Collection of Claims Against Depositor or Issuer
Trust.
If and when the Property Trustee shall be or become a creditor of the
Depositor (or any other obligor upon the Trust Securities), the Property Trustee
shall be subject to the provisions of the Trust Indenture Act regarding the
collection of claims against the Depositor (or any such other obligor) only if
this Trust Agreement is subject to the Trust Indenture Act.
SECTION 8.14. Trustee May File Proofs of Claim.
In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other similar judicial
proceeding relative to the Issuer Trust or any other obligor upon the Trust
Securities or the property of the Issuer Trust or of such other obligor, the
Property Trustee (irrespective of whether any Distributions on the Trust
Securities shall then be due and payable and irrespective of whether the
Property Trustee shall have made any demand on the Issuer Trust for the payment
of any past due Distributions) shall be entitled and empowered, to the fullest
extent permitted by law, by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of any Distributions
owing and unpaid in respect of the Trust Securities and to file such other
papers or documents as may be necessary or advisable in order to have the claims
of the Property Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Property Trustee, its agents and
counsel) and of the Holders allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder to make such
payments to the Property Trustee and, in the event the Property Trustee shall
consent to the making of such payments directly to the Holders, to pay to the
Property Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Property Trustee, its agents and counsel, and
any other amounts due the Property Trustee.
Nothing contained herein shall be deemed to authorize the Property Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization,
50
arrangement, adjustment or compensation affecting the Trust Securities or the
rights of any Holder thereof or to authorize the Property Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 8.15. Reports by Property Trustee.
(a) Not later than January 31 of each year commencing with January 31,
2003, the Property Trustee shall transmit to all Holders in accordance with
Section 10.8, and to the Depositor, a brief report dated as of the immediately
preceding December 31 with respect to:
(i) its eligibility under Section 8.7 or, in lieu thereof, if to the
best of its knowledge it has continued to be eligible under said Section, a
written statement to such effect; and
(ii) any change in the property and funds in its possession as
Property Trustee since the date of its last report and any action taken by
the Property Trustee in the performance of its duties hereunder which it
has not previously reported and which in its opinion materially affects the
Trust Securities.
(b) In addition the Property Trustee shall transmit to Holders such reports
concerning the Property Trustee and its actions under this Trust Agreement as
may be required pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant thereto.
(c) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Property Trustee with the Depositor.
SECTION 8.16. Reports to the Property Trustee.
The Depositor and the Administrators on behalf of the Issuer Trust shall
provide to the Property Trustee such documents, reports and information as
required or specified by Section 314 of the Trust Indenture Act (if any and to
the extent applicable) and the compliance certificate required or specified by
Section 314(a) of the Trust Indenture Act in the form, in the manner and at the
times set forth in Section 314 of the Trust Indenture Act. The Depositor and the
Administrators shall annually file with the Property Trustee a certificate
specifying whether such Person is in compliance with all the terms and covenants
applicable to such Person hereunder.
SECTION 8.17. Evidence of Compliance with Conditions Precedent.
Each of the Depositor and the Administrators on behalf of the Issuer Trust
shall provide to the Property Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Trust Agreement that relate
to any of the matters set forth in Section 314(c) of the Trust Indenture Act.
Any certificate or opinion required to be given by an officer
51
pursuant to Section 314(c)(1) of the Trust Indenture Act shall be given in the
form of an Officers' Certificate.
SECTION 8.18. Number of Issuer Trustees.
(a) The number of Issuer Trustees shall be two; provided, however, the
Property Trustee and the Delaware Trustee may be the same Person, in which case,
the number of Issuer Trustees may be one.
(b) If an Issuer Trustee ceases to hold office for any reason, a vacancy
shall occur. The vacancy shall be filled with an Issuer Trustee appointed in
accordance with Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy, incompetence
or incapacity to perform the duties of an Issuer Trustee shall not operate to
dissolve, terminate or annul the Issuer Trust or terminate this Trust Agreement.
SECTION 8.19. Delegation of Power.
(a) Any Administrator may, by power of attorney consistent with applicable
law, delegate to any other natural person over the age of 21 his or her power
for the purpose of executing any documents contemplated in Section 2.7(a) or
making any governmental filing; and
(b) The Administrators shall have power to delegate from time to time to
such of their number the doing of such things and the execution of such
instruments either in the name of the Issuer Trust or the names of the
Administrators or otherwise as the Administrators may deem expedient, to the
extent such delegation is not prohibited by applicable law or contrary to the
provisions of this Trust Agreement.
SECTION 8.20. Appointment of Administrators.
(a) The Administrators shall be appointed by the Holder of the Common
Securities and may be removed by the Holder of the Common Securities or may
resign at any time. Upon any resignation or removal, the Holder of the Common
Securities 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
52
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 Holder of the Common Securities, incompetent, or
incapacitated, the vacancy created by such death, incompetence or incapacity may
be filled by the Holder of the Common Securities (with the successor being a
Person who satisfies the eligibility requirement for Administrators, as the case
may be, set forth in Section 8.7).
Except as otherwise provided in this Trust Agreement, or by applicable law,
any one Administrator may execute any document or otherwise take any action that
the Administrators are authorized to take under this Trust Agreement.
ARTICLE IX
DISSOLUTION, LIQUIDATION AND MERGER
SECTION 9.1. Dissolution Upon Expiration Date.
Unless earlier dissolved, the Issuer Trust shall automatically dissolve on
July 1, 2033 (the "Expiration Date"), and thereafter the Trust Property shall be
distributed in accordance with Section 9.4.
SECTION 9.2. Early Dissolution.
The first to occur of any of the following events is an "Early Termination
Event," upon the occurrence of which the Issuer Trust shall dissolve:
(a) the occurrence of the appointment of a receiver or other similar
official in any liquidation, insolvency or similar proceeding with respect to
the Depositor or all or substantially all of its property, or entry by a court
or other governmental agency of a decree or order and such decree or order shall
remain unstayed and undischarged for a period of 60 days, unless the Depositor
shall transfer the Common Securities as provided by Section 5.11, in which case
this provision shall refer instead to any such successor Holder of the Common
Securities;
(b) the written direction to the Property Trustee from the Holder of the
Common Securities at any time to dissolve the Issuer Trust and, after paying or
making reasonable provision to pay all charges and obligations of the Issuer
Trust in accordance with Section 3808(e) of the Delaware Business Trust Act, to
distribute the Junior Subordinated Debentures to Holders in exchange for the
Trust Securities (which direction, subject to Section 9.4(a), is optional and
wholly within the discretion of the Holder of the Common Securities);
53
(c) the repayment of all of the Capital Securities in connection with the
repayment at maturity or redemption of all the Junior Subordinated Debentures;
and
(d) the entry of an order for dissolution of the Issuer Trust by a court of
competent jurisdiction.
SECTION 9.3. Termination.
As soon as is practicable after the occurrence of an event referred to in
Section 9.1 or 9.2, and upon the completion of the winding-up and liquidation of
the Issuer Trust, the Administrators and the Issuer Trustees (each of whom is
hereby authorized to take such action) shall file a certificate of cancellation
with the Secretary of State of the State of Delaware terminating the Issuer
Trust and, upon such filing, the respective obligations and responsibilities of
the Issuer Trustees, the Administrators and the Issuer Trust created and
continued hereby shall terminate.
SECTION 9.4. Liquidation.
(a) If an Early Termination Event specified in clause (a), (b) or (d) of
Section 9.2 occurs or upon the Expiration Date, the Issuer Trust shall be
wound-up and liquidated by the Property Trustee as expeditiously as the Property
Trustee determines to be possible by distributing, after paying or making
reasonable provision to pay all claims and obligations of the Issuer Trust in
accordance with Section 3808(e) of the Delaware Business Trust Act, to each
Holder a Like Amount of Junior Subordinated Debentures, subject to Section
9.4(d). Notice of liquidation shall be given by the Property Trustee by
first-class mail, postage prepaid, mailed not later than 15 nor more than 45
days prior to the Liquidation Date to each Holder of Trust Securities at such
Holder's address appearing in the Securities Register. All notices of
liquidation shall:
(i) state the Liquidation Date;
(ii) state that, from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be Outstanding and any Trust
Securities Certificates not surrendered for exchange will be deemed to
represent a Like Amount of Junior Subordinated Debentures; and
(iii) provide such information with respect to the mechanics by which
Holders may exchange Trust Securities Certificates for Junior Subordinated
Debentures, or if Section 9.4(d) applies receive a Liquidation
Distribution, as the Administrators or the Property Trustee shall deem
appropriate.
(b) Except where Section 9.2(c) or 9.4(d) applies, in order to effect the
liquidation of the Issuer Trust and distribution of the Junior Subordinated
Debentures to Holders, the Property Trustee shall establish a record date for
such distribution (which shall be not more than 30 days prior to the Liquidation
Date) and, either itself acting as exchange agent or through the appointment of
a separate exchange agent, shall establish such procedures as it shall deem
54
appropriate to effect the distribution of Junior Subordinated Debentures in
exchange for the Outstanding Trust Securities Certificates.
(c) Except where Section 9.2(c) or 9.4(d) applies, after the Liquidation
Date, (i) the Trust Securities will no longer be deemed to be Outstanding, (ii)
the Clearing Agency for the Capital Securities or its nominee, as the registered
Holder of the Global Capital Securities Certificates, shall receive a registered
global certificate or certificates representing the Junior Subordinated
Debentures to be delivered upon such distribution with respect to Capital
Securities held by the Clearing Agency or its nominee, and (iii) any Trust
Securities Certificates not held by the Clearing Agency for the Capital
Securities or its nominee as specified in clause (ii) above will be deemed to
represent Junior Subordinated Debentures having a principal amount equal to the
stated Liquidation Amount of the Trust Securities represented thereby and
bearing accrued and unpaid interest in an amount equal to the accumulated and
unpaid Distributions on such Trust Securities until such certificates are
presented to the Securities Registrar for transfer or reissuance.
(d) If, notwithstanding the other provisions of this Section 9.4, whether
because of an order for dissolution entered by a court of competent jurisdiction
or otherwise, distribution of the Junior Subordinated Debentures is not
practical, or if any Early Termination Event specified in clause (c) of Section
9.2 occurs, the Issuer Trust shall be dissolved, and the Trust Property shall be
liquidated, by the Property Trustee in such manner as the Property Trustee
determines. In such event, on the date of the dissolution of the Issuer Trust,
Holders will be entitled to receive out of the assets of the Issuer Trust
available for distribution to Holders, after paying or making reasonable
provision to pay all claims and obligations of the Issuer Trust in accordance
with Section 3808(e) of the Delaware Business Trust Act, an amount equal to the
aggregate of Liquidation Amount per Trust Security plus accumulated and unpaid
Distributions thereon to the date of payment (such amount being the "Liquidation
Distribution"). If, upon any such dissolution, the Liquidation Distribution can
be paid only in part because the Issuer Trust has insufficient assets available
to pay in full the aggregate Liquidation Distribution, then, subject to the next
succeeding sentence, the amounts payable by the Issuer Trust on the Trust
Securities shall be paid on a pro rata basis (based upon Liquidation Amounts).
The Holder of the Common Securities will be entitled to receive Liquidation
Distributions upon any such dissolution, pro rata (determined as aforesaid) with
Holders of Capital Securities, except that, if a Debenture Event of Default in
Sections 5.1(1) or 5.1(2) of the Indenture has occurred and is continuing, the
Capital Securities shall have a priority over the Common Securities as provided
in Section 4.3.
SECTION 9.5. Mergers, Consolidations, Amalgamations or Replacements of the
Issuer Trust.
The Issuer Trust may not merge with or into, consolidate, amalgamate, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to, any entity, except pursuant to this Section 9.5
or Section 9.4. At the request of the Holder of the Common Securities, and with
the consent of the Holders of at least a Majority in Liquidation Amount of the
Capital Securities, but without the consent of the Issuer Trustees, the Issuer
Trust
55
may merge with or into, consolidate, amalgamate, or be replaced by or convey,
transfer or lease its properties and assets substantially as an entirety to a
trust organized as such under the laws of any state; provided that (i) such
successor entity either (a) expressly assumes all of the obligations of the
Issuer Trust with respect to the Capital Securities or (b) substitutes for the
Capital Securities other securities having substantially the same terms as the
Capital Securities (the "Successor Capital Securities") so long as the Successor
Capital Securities have the same priority as the Capital Securities with respect
to distributions and payments upon liquidation, redemption and otherwise, (ii) a
trustee of such successor entity possessing the same powers and duties as the
Property Trustee is appointed to hold the Junior Subordinated Debentures, (iii)
such merger, consolidation, amalgamation, replacement, conveyance, transfer or
lease does not cause the Capital Securities (including any Successor Capital
Securities) to be downgraded by any nationally recognized statistical rating
organization, if such Capital Securities have been rated by such nationally
recognized statistical rating organization, (iv) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not adversely
affect the rights, preferences and privileges of the holders of the Capital
Securities (including any Successor Capital Securities) in any material respect,
(v) such successor entity has a purpose substantially identical to that of the
Issuer Trust, (vi) prior to such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, the Issuer Trust has received an
Opinion of Counsel from a firm 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 of the Capital Securities (including any Successor Capital Securities)
in any material respect, and (b) following such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease, neither the Issuer
Trust nor such successor entity will be required to register as an "investment
company" under the Investment Company Act and (vii) the Depositor or any
permitted transferee to whom it has transferred the Common Securities hereunder
owns all of the common securities of such successor entity and guarantees the
obligations of such successor entity under the Capital Securities or Successor
Capital Securities at least to the extent provided by the Guarantee.
Notwithstanding the foregoing, the Issuer Trust shall not, except with the
consent of Holders of 100% in Liquidation Amount of the Capital Securities,
consolidate, amalgamate, merge with or into, or be replaced by or convey,
transfer or lease its properties and assets substantially as an entirety to, any
other entity or permit any other entity to consolidate, amalgamate, merge with
or into, or replace it if such consolidation, amalgamation, merger, replacement,
conveyance, transfer or lease would cause the Issuer Trust or the successor
entity to be taxable other than as a grantor trust for United States Federal
income tax purposes.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. Limitation of Rights of Holders.
Except as set forth in Section 9.2, the bankruptcy, dissolution,
termination, death or incapacity of any Person having an interest, beneficial or
otherwise, in Trust Securities shall not operate to terminate this Trust
Agreement, nor entitle the legal or personal representatives or
56
heirs of such Person or any Holder for such Person, to claim an accounting, take
any action or bring any proceeding in any court for a partition or winding-up of
the arrangements contemplated hereby, nor otherwise affect the rights,
obligations and liabilities of the parties hereto or any of them. Any merger or
similar agreement shall be executed by the Administrators on behalf of the
Issuer Trust.
SECTION 10.2. Amendment.
(a) This Trust Agreement may be amended from time to time by the Holder of
the Common Securities, without the consent of any Holder of the Capital
Securities (i) to cure any ambiguity, correct or supplement any provision herein
which may be inconsistent with any other provision herein, or to make any other
provisions with respect to matters or questions arising under this Trust
Agreement, provided, however, such amendment shall not adversely affect in any
material respect the interests of any Holder or (ii) to modify, eliminate or add
to any provisions of this Trust Agreement to such extent as shall be necessary
to ensure that the Issuer Trust will not be taxable other than as a grantor
trust for United States Federal income tax purposes at any time that any Trust
Securities are Outstanding or to ensure that the Issuer Trust will not be
required to register as an investment company under the Investment Company Act.
(b) Except as provided in Section 10.2(c) hereof, any provision of this
Trust Agreement may be amended by the Holder of the Common Securities with (i)
the consent of Holders of at least a Majority in Liquidation Amount of the
Capital Securities and (ii) receipt by the Issuer Trustees of an Opinion of
Counsel to the effect that such amendment or the exercise of any power granted
to the Issuer Trustees in accordance with such amendment will not affect the
Issuer Trust's being taxable as a grantor trust for United States Federal income
tax purposes or the Issuer Trust's exemption from status of an "investment
company" under the Investment Company Act.
(c) In addition to and notwithstanding any other provision in this Trust
Agreement, without the consent of each affected Holder, this Trust Agreement may
not be amended to (i) change the amount or timing of any Distribution on the
Trust Securities or otherwise adversely affect the amount of any Distribution
required to be made in respect of the Trust Securities as of a specified date or
(ii) restrict the right of a Holder to institute suit for the enforcement of any
such payment on or after such date.
(d) Notwithstanding any other provisions of this Trust Agreement, no Issuer
Trustee shall enter into or consent to any amendment to this Trust Agreement
which would cause the Issuer Trust to fail or cease to qualify for the exemption
from status as an "investment company" under the Investment Company Act or be
taxable other than as a grantor trust for United States Federal income tax
purposes.
(e) Notwithstanding anything in this Trust Agreement to the contrary,
without the consent of the Depositor and the Administrators, this Trust
Agreement may not be amended in a manner which imposes any additional obligation
on the Depositor or the Administrators.
57
(f) In the event that any amendment to this Trust Agreement is made, the
Administrators or the Property Trustee shall promptly provide to the Depositor a
copy of such amendment.
(g) No amendment to this Trust Agreement may be adopted that adversely
affects the Property Trustee's or the Delaware Trustee's rights, duties or
immunities under this Trust Agreement, except with the consent of such Property
Trustee or Delaware Trustee. The Property Trustee shall be entitled to receive
an Opinion of Counsel and an Officers' Certificate stating that any amendment to
this Trust Agreement is in compliance with this Trust Agreement.
(h) Any amendments to this Trust Agreement made pursuant to Section 10.2(a)
shall become effective when notice of such amendment is given to the Holders of
the Trust Securities.
SECTION 10.3. Separability.
In case any provision in this Trust Agreement or in the Trust Securities
Certificates shall be determined to be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 10.4. Governing Law.
THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE HOLDERS,
THE ISSUER TRUST, THE DEPOSITOR, THE ISSUER TRUSTEES AND THE ADMINISTRATORS
SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
DELAWARE AND ALL RIGHTS AND REMEDIES SHALL BE GOVERNED BY SUCH LAWS WITHOUT
REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS OF THE STATE OF DELAWARE OR ANY
OTHER JURISDICTION THAT WOULD CALL FOR THE APPLICATION OF THE LAW OF ANY
JURISDICTION OTHER THAN THE STATE OF DELAWARE; PROVIDED, HOWEVER, THAT THERE
SHALL NOT BE APPLICABLE TO THE HOLDERS, THE ISSUER TRUST, THE DEPOSITOR, THE
ISSUER TRUSTEES, THE ADMINISTRATORS OR THIS TRUST AGREEMENT ANY PROVISION OF THE
LAWS (STATUTORY OR COMMON) OF THE STATE OF DELAWARE PERTAINING TO TRUSTS OTHER
THAN THE DELAWARE BUSINESS TRUST ACT THAT RELATE TO OR REGULATE, IN A MANNER
INCONSISTENT WITH THE TERMS HEREOF (A) THE FILING WITH ANY COURT OR GOVERNMENTAL
BODY OR AGENCY OF TRUSTEE ACCOUNTS OR SCHEDULES OF TRUSTEE FEES AND CHARGES, (B)
AFFIRMATIVE REQUIREMENTS TO POST BONDS FOR TRUSTEES, OFFICERS, AGENTS OR
EMPLOYEES OF A TRUST, (C) THE NECESSITY FOR OBTAINING COURT OR OTHER
GOVERNMENTAL APPROVAL CONCERNING THE ACQUISITION, HOLDING OR DISPOSITION OF REAL
OR PERSONAL PROPERTY, (D) FEES OR OTHER SUMS PAYABLE TO TRUSTEES, OFFICERS,
AGENTS OR EMPLOYEES OF A TRUST, (E) THE ALLOCATION OF RECEIPTS AND EXPENDITURES
TO INCOME OR PRINCIPAL, (F) RESTRICTIONS OR LIMITATIONS ON THE PERMISSIBLE
NATURE, AMOUNT OR CONCENTRATION OF TRUST INVESTMENTS OR REQUIREMENTS RELATING TO
58
THE TITLING, STORAGE OR OTHER MANNER OF HOLDING OR INVESTING TRUST ASSETS OR (G)
THE ESTABLISHMENT OF FIDUCIARY OR OTHER STANDARDS OF RESPONSIBILITY OR
LIMITATIONS ON THE ACTS OR POWERS OF TRUSTEES THAT ARE INCONSISTENT WITH THE
LIMITATIONS OR LIABILITIES OR AUTHORITIES AND POWERS OF THE ISSUER TRUSTEES OR
THE ADMINISTRATOR AS SET FORTH OR REFERENCED IN THIS TRUST AGREEMENT. SECTION
3540 OF TITLE 12 OF THE DELAWARE CODE SHALL NOT APPLY TO THE ISSUER TRUST.
SECTION 10.5. Payments Due on Non-Business Day.
If the date fixed for any payment on any Trust Security shall be a day that
is not a Business Day, then such payment need not be made on such date but may
be made on the next succeeding day that is a Business Day except that, if such
Business Day is in the next succeeding calendar year, such payment shall be made
on the immediately preceding Business Day, in each case, with the same force and
effect as though made on the date fixed for such payment, and no Distributions
or interest shall accumulate on such unpaid amount for the period after such
date.
SECTION 10.6. Successors.
This Trust Agreement shall be binding upon and shall inure to the benefit
of any successor to the Depositor, the Issuer Trust, the Administrators and any
Issuer Trustee, including any successor by operation of law. Except in
connection with a consolidation, merger or sale involving the Depositor that is
permitted under Article VIII of the Indenture and pursuant to which the assignee
agrees in writing to perform the Depositor's obligations hereunder, the
Depositor shall not assign its obligations hereunder.
SECTION 10.7. Headings.
The Article and Section headings are for convenience only and shall not
affect the construction of this Trust Agreement.
SECTION 10.8. Reports, Notices and Demands.
Any report, notice, demand or other communication that by any provision of
this Trust Agreement is required or permitted to be given or served to or upon
any Holder or the Depositor may be given or served in writing by deposit
thereof, first class postage prepaid, in the United States mail, hand delivery
or facsimile transmission, in each case, addressed, (a) in the case of a Holder
of Capital Securities, to such Holder as such Holder's name and address may
appear on the Securities Register; and (b) in the case of the Holder of Common
Securities or the Depositor, to Florida Community Banks, Inc., 0000 Xxxxx 00xx
Xxxxxx, Xxxxxxxxx, Xxxxxxx 00000, Attention: Xxxxxx X. Xxxxxxxx, facsimile no.:
(000) 000-0000 or to such other address as may be specified in a written notice
by the Depositor to the Property Trustee. Such notice, demand or
59
other communication to or upon a Holder shall be deemed to have been
sufficiently given or made, for all purposes, upon hand delivery, mailing or
transmission. Such notice, demand or other communication to or upon the
Depositor shall be deemed to have been sufficiently given or made only upon
actual receipt of the writing by the Depositor.
Any notice, demand or other communication which by any provision of this
Trust Agreement is required or permitted to be given or served to or upon the
Issuer Trust, the Property Trustee, the Delaware Trustee, the Administrators, or
the Issuer Trust shall be given in writing addressed (until another address is
published by the Issuer Trust) as follows: (a) with respect to the Property
Trustee to Wilmington Trust Company, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000-0000, Attention: Corporate Trust Administration; (b) with respect
to the Delaware Trustee to 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000-0000, Attention: Corporate Trust Administration; and (c) with respect to
the Administrators, to them at the address above for notices to the Depositor,
marked "Attention: FCBI Capital Trust I Administrators." Such notice, demand or
other communication to or upon the Issuer Trust or the Property Trustee shall be
deemed to have been sufficiently given or made only upon actual receipt of the
writing by the Issuer Trust, the Property Trustee, or such Administrator.
SECTION 10.9. Agreement Not to Petition.
Each of the Issuer Trustees, the Administrators and the Depositor agree for
the benefit of the Holders that, until at least one year and one day after the
Issuer Trust has been terminated in accordance with Article IX, they shall not
file, or join in the filing of, a petition against the Issuer Trust under any
bankruptcy, insolvency, reorganization or other similar law (including, without
limitation, the United States Bankruptcy Code) (collectively, "Bankruptcy Laws")
or otherwise join in the commencement of any proceeding against the Issuer Trust
under any Bankruptcy Law. In the event the Depositor takes action in violation
of this Section 10.9, the Property Trustee agrees, for the benefit of Holders,
that at the expense of the Depositor, it shall file an answer with the
bankruptcy court or other court or otherwise properly contest the filing of such
petition by the Depositor against the Issuer Trust or the commencement of such
action and raise the defense that the Depositor has agreed in writing not to
take such action and should be estopped and precluded therefrom and such other
defenses, if any, as counsel for the Issuer Trustee or the Issuer Trust may
assert. If any Issuer Trustee or Administrator takes action in violation of this
Section 10.9, the Depositor agrees, for the benefit of the Holders, that at the
expense of the Depositor, it shall file an answer with the bankruptcy court or
otherwise properly contest the filing of such petition by such Person against
the Depositor or the commencement of such action and raise the defense that such
Person has agreed in writing not to take such action and should be estopped and
precluded therefrom and such other defenses, if any, as counsel for the Issuer
Trustee or the Issuer Trust may assert. The provisions of this Section 10.9
shall survive the termination of this Trust Agreement.
SECTION 10.10. Trust Indenture Act; Conflict with Trust Indenture Act.
(a) Trust Indenture Act; Application. (i) This Trust Agreement is subject
to the provisions of the Trust Indenture Act that are required to be a part of
this Trust Agreement and shall, to the extent applicable, be governed by such
provisions; (ii) if and to the extent that
60
any provision of this Trust Agreement limits, qualifies or conflicts with the
duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act,
such imposed duties shall control; (iii) for purposes of this Trust Agreement,
the Property Trustee, to the extent permitted by applicable law and/or the rules
and regulations of the Commission, shall be the only Issuer Trustee which is a
trustee for the purposes of the Trust Indenture Act; and (iv) the application of
the Trust Indenture Act to this Trust Agreement shall not affect the nature of
the Capital Securities and the Common Securities as equity securities
representing undivided beneficial interests in the assets of the Issuer Trust.
(b) Lists of Holders of Capital Securities. (i) Each of the Depositor and
the Administrators on behalf of the Trust shall provide the Property Trustee
with such information as is required under Section 312(a) of the Trust Indenture
Act at the times and in the manner provided in Section 312(a) and (ii) the
Property Trustee shall comply with its obligations under Sections 310(b), 311
and 312(b) of the Trust Indenture Act.
(c) Reports by the Property Trustee. Within 60 days after January 31 of
each year commencing January 31, 2003, the Property Trustee shall provide to the
Holders of the Trust Securities such reports as are required by Section 313 of
the Trust Indenture Act, if any, in the form, in the manner and at the times
provided by Section 313 of the Trust Indenture Act. The Property Trustee shall
also comply with the requirements of Section 313(d) of the Trust Indenture Act.
(d) Periodic Reports to Property Trustee. Each of the Depositor and the
Administrators on behalf of the Issuer Trust shall provide to the Property
Trustee, the Commission and the Holders of the Trust Securities, as applicable,
such documents, reports and information as may be required by Section 315(a)(1)
- (3) (if any) of the Trust Indenture Act and the compliance certificates
required by Section 314(a)(4) and (c) of the Trust Indenture Act (provided that
any certificate to be provided pursuant to Section 314(a)(4) of the Trust
Indenture Act shall be provided within 120 days of the end of each fiscal year
of the Issuer Trust).
(e) Evidence of Compliance with Conditions Precedent. Each of the Depositor
and the Administrators on behalf of the Issuer Trust shall provide to the
Property Trustee such evidence of compliance with any conditions precedent, if
any, provided for in this Trust Agreement which relate to any of the matters set
forth in Section 314(c) of the Trust Indenture Act. Any certificate or opinion
required to be given pursuant to Section 314(c) shall comply with Section 314(e)
of the Trust Indenture Act.
(f) Disclosure Information. The disclosure of information as to the names
and addresses of the Holders of Trust Securities in accordance with Section 312
of the Trust Indenture Act, regardless of the source from which such information
was derived, shall not be deemed to be a violation of any existing law or any
law hereafter enacted which does not specifically refer to Section 312 of the
Trust Indenture Act, nor shall the Property Trustee be held accountable by
reason of mailing any material pursuant to a request made under Section 312(b)
of the Trust Indenture Act.
61
SECTION 10.11. Acceptance of Terms of Trust Agreement, Guarantee and Indenture.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN BY
OR ON BEHALF OF A HOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY SIGNATURE OR
FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE
BY THE HOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN SUCH TRUST SECURITY
OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT, THE GUARANTEE THE
INDENTURE, AND AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE
GUARANTEE AND THE INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE ISSUER
TRUST, SUCH HOLDER AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF THIS TRUST
AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE ISSUER TRUST
AND SUCH HOLDER AND SUCH OTHERS.
* * * *
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
[Signatures on Next Page]
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IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed, all as of the day and year first above written.
FLORIDA COMMUNITY BANKS, INC.,
as Depositor
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chief Financial Officer
WILMINGTON TRUST COMPANY,
as Property Trustee, and not in its individual capacity
By: /s/ Xxxxxxxx X. Xxxxxxxx
-----------------------------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Administrative Account Manager
WILMINGTON TRUST COMPANY,
as Delaware Trustee, and not in its individual capacity
By: /s/ Xxxxxxxx X. Xxxxxxxx
-----------------------------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Administrative Account Manager
/s/ Xxxxxxx X. Xxxxx
----------------------------------------------------------------------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Administrator
/s/ Xxxxxx X. Xxxxxxxx
----------------------------------------------------------------------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Administrator
EXHIBIT A
CERTIFICATE OF TRUST
OF
FCBI CAPITAL TRUST I
EXHIBIT B
RESTRICTED SECURITIES CERTIFICATE
(For transfers pursuant toss. 5.5(b)
of the Trust Agreement)
Wilmington Trust Company,
as Security Registrar
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration
Re: Floating Rate Capital Securities ("Capital Securities")
--------------------
of FCBI Capital Trust I (the "Trust")
-----------
Reference is made to the Amended and Restated Trust Agreement, dated as of
June ___, 2002 (the "Trust Agreement"), among Florida Community Banks, Inc., as
Depositor, Wilmington Trust Company, as Property Trustee and as Delaware
Trustee, the Administrators named therein, and the Holders (as defined therein)
from time to time. Terms used herein and defined in the Trust Agreement or in
Regulation D, Rule 144A or Rule 144 under the U.S. Securities Act of 1933 (the
"Securities Act") are used herein as so defined.
This certificate relates to $__________ aggregate Liquidation Amount of
Capital Securities, which are evidenced by the following certificate(s) (the
"Specified Securities"):
CUSIP No(s). _________________________
CERTIFICATE No(s). ___________________
CURRENTLY IN BOOK-ENTRY FORM: ___Yes ____No (check one)
The person in whose name this certificate is executed below (the "Undersigned")
hereby certifies that either (i) it is the sole beneficial owner of the
Specified Securities or (ii) it is acting on behalf of all the beneficial owners
of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "Owner."
If the Specified Securities are represented by a Global Capital Securities
Certificate, they are held through the Clearing Agency or a Clearing Agency
Participant in the name of the Undersigned, as or on behalf of the Owner. If the
Specified Securities are not represented by a Global Capital Securities
Certificate, they are registered in the name of the Undersigned, as or on behalf
of the Owner.
The Owner has requested that the Specified Securities be transferred to a
person (the "Transferee") who will take delivery in the form of a Restricted
Capital Security. In
connection with such transfer, the Owner hereby certifies that, unless such
transfer is being effected pursuant to an effective registration statement under
the Securities Act, it is being effected in accordance with Rule 144A, Rule 904
or Rule 144 under the Securities Act or other exemption from registration under
the Securities Act, and all applicable securities laws of the states of the
United States and other jurisdictions. Accordingly, the Owner hereby further
certifies as follows:
1. Rule 144A Transfers. If the transfer is being effected in accordance
with Rule 144A:
(A) the Specified Securities are being transferred to a person that
the Owner and any person acting on its behalf reasonably believe is a
"qualified institutional buyer" within the meaning of Rule 144A, acquiring
for its own account or for the account of a qualified institutional buyer;
and
(B) the Owner and any person acting on its behalf have taken
reasonable steps to ensure that the Transferee is aware that the Owner may
be relying on Rule 144A in connection with the transfer.
2. Rule 904 Transfers. If the transfer is being effected in accordance with
Rule 904:
(A) the Owner is not a distributor of the Capital Securities, an
affiliate of the Depositor or the Trust or any such distributor or a person
acting on behalf of any of the foregoing;
(B) the offer of the Specified Securities was not made to a person in
the United States;
(C) either:
(i) at the time the buy order was originated, the Transferee was
outside the United States or the Owner and any person acting on its
behalf reasonably believed that the Transferee was outside the United
States, or
(ii) the transaction is being executed in, on or through the
facilities of the Eurobond market, as regulated by the Association of
International Bond Dealers, or another designated offshore securities
market and neither the Owner nor any person acting on its behalf knows
that the transaction has been prearranged with a buyer in the United
States;
(D) no directed selling efforts within the meaning of Rule 902 of
Regulation S have been made in the United States by or on behalf of the
Owner or any affiliate thereof; and
2
(E) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
3. Rule 144 Transfers. If the transfer is being effected pursuant to Rule
144:
(A) the transfer is occurring after a holding period of at least one
year (computed in accordance with paragraph (d) of Rule 144 or such shorter
time as may be provided therein) has elapsed since the date the Specified
Securities were acquired from the Depositor or the Trust or from an
affiliate (as such term is defined in Rule 144) of the Depositor or the
Trust, with the full amount of the purchase price paid at the date of
purchase, whichever is later, and is being effected in accordance with the
applicable amount, manner of sale and notice requirements of paragraphs
(c), (e), (f) and (h) of Rule 144; or
(B) the transfer is occurring after a holding period of at least two
years (or such shorter time as may be provided in Rule 144(k) has elapsed
since the date the Specified Securities were acquired from the Depositor or
the Trust or from an affiliate (as such term is defined in Rule 144) of the
Depositor or the Trust, with the full amount of the purchase price paid at
the date of purchase, whichever is later, and the Owner is not, and during
the preceding three months has not been, an affiliate of the Depositor or
the Trust.
4. Other Transfers. If the Owner seeks to make a transfer in reliance on
any other exemption under the Securities Act, it shall attach hereto a letter
stating the exemption relied upon and the facts under which such exemption is
available for the requested transfer, and shall attach an opinion of counsel
satisfactory to the Depositor stating that such exemption is available and is
being properly used.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Depositor, the Trust and the Holders.
Dated:________________ ____________________________________________________________________
(Print the name of the Undersigned, as such term is defined in the
second paragraph of this certificate.)
By: ___________________________________________________________
Name: ___________________________________________________________
Title: ___________________________________________________________
(If the Undersigned is a corporation,
partnership, fiduciary or entity, the
correct name of the entity, and the name
and title of the person signing on
behalf of the Undersigned must be
stated.)
3
EXHIBIT C
FORM OF COMMON SECURITIES CERTIFICATE
ATL01/11201267v3
EXHIBIT D
FORM OF CAPITAL SECURITIES CERTIFICATE
ATL01/11201267v3
EXHIBIT E
FORM OF PLACEMENT AGREEMENT
