______________________________________________________________________________
AMENDED AND RESTATED TRUST AGREEMENT
among
NATIONAL PENN BANCSHARES, INC., as Depositor
CHRISTIANA BANK & TRUST COMPANY, as Property Trustee
CHRISTIANA BANK & TRUST COMPANY, as Delaware Trustee
and
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
Dated as of August __, 2002
______________________________________________________________________________
TABLE OF CONTENTS
Page
ARTICLE I DEFINED TERMS..............................................2
Section 1.01. Definitions................................................2
ARTICLE II CONTINUATION OF THE TRUST.................................10
Section 2.01. Name......................................................10
Section 2.02. Office of the Delaware Trustee; Principal Place of
Business...............................................10
Section 2.03. Initial Contribution of Trust Property; Organizational
Expenses...............................................10
Section 2.04. Issuance of the Preferred Securities......................10
Section 2.05. Issuance of the Common Securities; Subscription and
Purchase of the Debentures.............................11
Section 2.06. Declaration of Trust......................................12
Section 2.07. Authorization to Enter Into Certain Transactions..........12
Section 2.08. Assets of Trust...........................................15
Section 2.09. Title to Trust Property...................................15
Section 2.10. Execution of Documents....................................16
ARTICLE III. PAYMENT ACCOUNT...........................................16
Section 3.01. Payment Account...........................................16
ARTICLE IV. DISTRIBUTIONS; REDEMPTION.................................16
Section 4.01. Distributions.............................................16
Section 4.02. Redemption................................................17
i
Section 4.03. Subordination of the Common Securities....................18
Section 4.04. Payment Procedures........................................20
Section 4.05. Tax Returns and Reports...................................20
Section 4.06. Payment of Taxes, Duties, Etc. of the Trust...............21
Section 4.07. Payments under the Indenture..............................21
Section 4.08. Liability of the Holder of the Common Securities..........21
ARTICLE V. THE TRUST SECURITIES CERTIFICATES.........................21
Section 5.01. Initial Ownership.........................................21
Section 5.02. The Trust Securities Certificates.........................21
Section 5.03. Execution, Authentication and Delivery of the Trust
Securities Certificates................................22
Section 5.03A. Global Preferred Security.................................22
Section 5.04. Registration of Transfer and Exchange of the
Preferred Securities Certificates......................24
Section 5.05. Mutilated, Destroyed, Lost or Stolen Trust
Securities Certificates................................25
Section 5.06. Persons Deemed the Securityholders........................25
Section 5.07. Access to List of the Securityholders' Names and
Addresses..............................................25
Section 5.08. Maintenance of Office or Agency...........................26
Section 5.09. Appointment of the Paying Agent...........................26
Section 5.10. Ownership of the Common Securities by the Depositor.......27
Section 5.11. The Trust Securities Certificates.........................27
Section 5.12. [Reserved]................................................27
Section 5.13. Notices...................................................27
ii
Section 5.14. Rights of the Securityholders.............................28
ARTICLE VI. ACTS OF THE SECURITYHOLDERS; MEETINGS; VOTING.............28
Section 6.01. Limitations on Voting Rights..............................28
Section 6.02. Notice of Meetings........................................29
Section 6.03. Meetings of the Preferred Securityholders.................30
Section 6.04. Voting Rights.............................................30
Section 6.05. Proxies, Etc..............................................30
Section 6.06. Securityholder Action by Written Consent..................31
Section 6.07. Record Date for Voting and Other Purposes.................31
Section 6.08. Acts of the Securityholders...............................31
Section 6.09. Inspection of Records.....................................32
ARTICLE VII. REPRESENTATIONS AND WARRANTIES............................32
Section 7.01. Representations and Warranties of the Bank and
the Property Trustee...................................32
Section 7.02. Representations and Warranties of the Delaware Bank
and the Delaware Trustee...............................33
Section 7.03. Representations and Warranties of the Depositor...........34
ARTICLE VIII. TRUSTEES..................................................34
Section 8.01. Certain Duties and Responsibilities.......................34
Section 8.02. Certain Notices...........................................36
Section 8.03. Certain Rights of the Property Trustee....................37
Section 8.04. Not Responsible for Recitals or Issuance of Securities....39
Section 8.05. May Hold Securities.......................................39
iii
Section 8.06. Compensation; Indemnity; Fees.............................39
Section 8.07. Corporate Property Trustee Required; Eligibility
of Trustees............................................40
Section 8.08. Conflicting Interests.....................................40
Section 8.09. Co-Trustees and Separate Trustee..........................41
Section 8.10. Resignation and Removal; Appointment of Successor.........42
Section 8.11. Acceptance of Appointment by Successor....................43
Section 8.12. Merger, Conversion, Consolidation or Succession to
Business...............................................44
Section 8.13. Preferential Collection of Claims Against the
Depositor or the Trust.................................44
Section 8.13A Trustee May File Proof of Claim...........................44
Section 8.14. Reports by the Property Trustee...........................45
Section 8.15. Reports to the Property Trustee...........................45
Section 8.16. Evidence of Compliance with Conditions Precedent..........46
Section 8.17. Number of Trustees........................................46
Section 8.18. Delegation of Power.......................................46
Section 8.19. Voting....................................................47
ARTICLE IX DISSOLUTION, LIQUIDATION AND MERGER.......................47
Section 9.01. Dissolution upon Expiration Date..........................47
Section 9.02. Early Termination.........................................47
Section 9.03. Termination...............................................47
Section 9.04. Liquidation...............................................48
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Section 9.05. Mergers, Consolidations, Amalgamations or
Replacements of the Trust..............................49
ARTICLE X MISCELLANEOUS PROVISIONS..................................50
Section 10.01. Limitation of Rights of the Securityholders...............50
Section 10.02. Amendment.................................................51
Section 10.03. Separability..............................................52
Section 10.04. Governing Law.............................................52
Section 10.05. Payments Due on Non-Business Day..........................52
Section 10.06. Successors................................................53
Section 10.07. Headings..................................................53
Section 10.08. Reports, Notices and Demands..............................53
Section 10.09. Agreement Not to Petition.................................53
Section 10.10. Trust Indenture Act; Conflict with Trust Indenture Act....54
Section 10.11. Acceptance of Terms of the Trust Agreement, the
Guarantee and the Indenture............................55
EXHIBITS
Exhibit A Certificate of Trust
Exhibit B Form of Common Securities Certificate
Exhibit C Form of Preferred Securities Certificate
Exhibit D Form of Certificate of Authentication
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CROSS-REFERENCE TABLE
Certain Sections of this Amended and Restated Trust Agreement relating
to Sections 310 through 318 of the Trust Indenture Act of 1939.
Section of Trust Indenture Act Section of Amended
of 1939, as amended and Restated Trust Agreement
------------------- ----------------------------
310(a)(1) 8.07
310(a)(2) 8.07
310(a)(3) 8.07
310(a)(4) 2.07(a)(ii)
310(a)(5) _______
310(b) 8.08
310(c) Not applicable
311(a) 8.13
311(b) 8.13
311(c) Not applicable
312(a) 5.07
312(b) 5.07
312(c) 5.07
313(a) 8.14(a)
313(b) 8.14(a)
313(c) 10.08
313(d) 8.14(b)
314(a) 8.15
314(b) Not applicable
314(c)(1) 8.16
314(c)(2) 8.16
314(c)(3) Not applicable
314(d) Not applicable
314(e) 1.01, 8.16
314(f) Not applicable
315(a) 8.01(a), 8.03(a)
315(b) 8.02, 10.08
315(c) 8.01(a)
315(d) 8.10, 8.03
315(e) Not applicable
316(a)(1) _______
316(a)(2) Not applicable
316(b) Not applicable
316(c) 6.07
317(a)(1) Not applicable
317(a)(2) Not applicable
317(b) 5.09
318(a) 10.10
Note: This Cross-Reference Table does not constitute part of this Amended and
Restated Trust Agreement and shall not affect any interpretation of any of its
terms or provisions.
vi
TRUST AGREEMENT
AMENDED AND RESTATED TRUST AGREEMENT, dated as of August ___, 2002,
among (a) NATIONAL PENN BANCSHARES, INC., a Pennsylvania business corporation
(including any successors or assigns, the "Depositor"), (b) CHRISTIANA BANK &
TRUST COMPANY, a banking corporation duly organized and existing under the laws
of Delaware, as property trustee (the "Property Trustee" and, in its separate
corporate capacity and not in its capacity as Property Trustee, the "Bank"), (c)
CHRISTIANA BANK & TRUST COMPANY, as Delaware trustee (the "Delaware Trustee,"
and, in its separate corporate capacity and not in its capacity as Delaware
Trustee, the "Delaware Bank"), (d) Xxxxxx X. Xxxxx, an individual, and Xxxx X.
Xxxxxx, an individual, each of whose address is c/o National Penn Bancshares,
Inc., Philadelphia and Xxxxxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxxxx 00000 (each an
"Administrative Trustee" and collectively the "Administrative Trustees") (the
Property Trustee, the Delaware Trustee and the Administrative Trustees referred
to collectively as the "Trustees"), and (e) the several Holders (as hereinafter
defined).
RECITALS
WHEREAS, the Depositor and the Delaware Trustee have heretofore duly
declared and established a business trust pursuant to the Delaware Business
Trust Act (as hereinafter defined) by the entering into of that certain Trust
Agreement, dated as of July 25, 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 July 25, 2002, the
form of which is attached as Exhibit A; and
WHEREAS, the Depositor, the Delaware Trustee, the Property Trustee and
the Administrative Trustees desire to amend and restate the Original Trust
Agreement in its entirety as set forth herein to provide for, among other
things, (a) the issuance and sale of the Common Securities (as defined herein)
by the Trust (as defined herein) to the Depositor; (b) the issuance and sale of
the Preferred Securities (as defined herein) by the Trust pursuant to the
Underwriting Agreement (as defined herein); (c) the acquisition by the Trust
from the Depositor of all of the right, title and interest in the Debentures (as
defined herein); and (d) the appointment of the Trustees.
NOW THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each party, for the benefit of the
other parties and for the benefit of the Security holders (as defined herein),
hereby amends and restates the Original Trust Agreement in its entirety and
agrees as follows:
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ARTICLE I
DEFINED TERMS
Section 1.01. Definitions.
-----------
For all purposes of this Trust Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article I have the meanings assigned
to them in this Article I and include the plural as well as the singular;
(b) all other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) 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; and
(d) 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.
"Act" has the meaning specified in Section 6.08.
"Additional Amount" means, with respect to Trust Securities of a given
Liquidation Amount and/or a given period, the amount of additional interest
accrued on interest in arrears and paid by the Depositor on a Like Amount of
Debentures for such period.
"Additional Payments" has the meaning specified in Section 1.1 of the
Indenture.
"Administrative Trustee" means each of Xxxxxx X. Xxxxx and Xxxx X.
Xxxxxx, solely in their capacity as Administrative Trustee of the Trust formed
and continued hereunder and not in their individual capacity, or such
Administrative Trustee's successor in interest in such capacity, or any
successor trustee appointed as herein provided.
"Affiliate" means, with respect to a specified Person, (a) any Person
directly or indirectly owning, controlling or holding with power to vote 10% or
more of the outstanding voting securities or other ownership interests of the
specified Person; (b) any Person 10% or more of whose outstanding voting
securities or other ownership interests are directly or indirectly owned,
controlled or held with power to vote by the specified Person; (c) any Person
directly or indirectly controlling, controlled by, or under common control with
the specified Person; (d) a partnership in which the specified Person is a
general partner; (e) any officer or director of the specified Person; and (f) if
the specified Person is an individual, any entity of which the specified Person
is an officer, director or general partner.
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"Authenticating Agent" means an authenticating agent with respect to
the Preferred Securities appointed by the Property Trustee pursuant to Section
5.03.
"Bank" has the meaning specified in the Preamble to this Trust
Agreement.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having
jurisdiction in the premises adjudging such Person a bankrupt or
insolvent, or approving as properly filed a petition seeking
liquidation or reorganization of or in respect of such Person under the
United States Bankruptcy Code of 1978, as amended, or any other similar
applicable federal or state law, and the continuance of any such decree
or order unvacated and unstayed for a period of ninety (90) days; or
the commencement of an involuntary case under the United States
Bankruptcy Code of 1978, as amended, in respect of such Person, which
shall continue undismissed for a period of ninety (90) days or entry of
an order for relief in such case; or the entry of a decree or order of
a court having jurisdiction in the premises for the appointment on the
ground of insolvency or bankruptcy of a receiver, custodian,
liquidator, trustee or assignee in bankruptcy or insolvency of such
Person or of its property, or for the winding up or liquidation of its
affairs, and such decree or order shall have remained in force
unvacated and unstayed for a period of ninety (90) days; or
(b) the institution by such Person of proceedings to be
adjudicated a voluntary bankrupt, or the consent by such Person to the
filing of a bankruptcy proceeding against it, or the filing by such
Person of a petition or answer or consent seeking liquidation or
reorganization under the United States Bankruptcy Code of 1978, as
amended, or other similar applicable Federal or State law, or the
consent by such Person to the filing of any such petition or to the
appointment on the ground of insolvency or bankruptcy of a receiver or
custodian or liquidator or trustee or assignee in bankruptcy or
insolvency of such Person or of its property, or shall make a general
assignment for the benefit of creditors.
"Bankruptcy Laws" has the meaning specified in Section 10.09.
"Business Day" means any day other than a Saturday or Sunday or a day
on which federal or state banking institutions in Wilmington, Delaware are
authorized or required by law, executive order or regulation to close, or a day
on which the corporate Trust Office of the Property Trustee or the Corporate
Trust Office of the Debenture Trustee is closed for business.
"Certificate of Trust" means the certificate of trust filed with the
Secretary of State of the State of Delaware with respect to the Trust, as
amended or restated from time to time.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended. DTC shall be the initial Clearing Agency.
3
"Closing Date" means the date of execution and delivery of this Trust
Agreement.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act, or, if at any time after
the execution of this instrument such Commission is not existing and performing
the duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Securities Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached as Exhibit B.
"Common Security" means an undivided beneficial interest in the assets
of the Trust, having a Liquidation Amount of $25 and having the rights provided
therefor in this Trust Agreement, including the right to receive Distributions
and a Liquidation Distribution as provided herein.
"Company" means National Penn Bancshares, Inc., a Pennsylvania business
corporation and a registered bank holding company headquartered in Boyertown,
Pennsylvania.
"Corporate Trust Office" means the office at which, at any particular
time, the corporate trust business of the Property Trustee or the Debenture
Trustee, as the case may be, shall be principally administered, which office at
the date hereof, in each such case, is located at 0000 Xxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000, Attention: Corporate Trust Administration.
"Debenture Event of Default" means an "Event of Default" as defined in
Section 7.1 of the Indenture.
"Debenture Redemption Date" means, with respect to any Debentures to be
redeemed under the Indenture, the date fixed for redemption under the Indenture.
"Debenture Trustee" means Christiana Bank & Trust Company, a banking
corporation organized under the laws of the State of Delaware and any successor
thereto, as trustee under the Indenture.
"Debentures" means the $56,701,025 (or $65,206,175 if the Underwriters
exercise their Option as such term is defined in the Underwriters Agreement)
aggregate principal amount of the Depositor's ____% Subordinated Debentures due
2032, issued pursuant to the Indenture.
"Delaware Bank" has the meaning specified in the Preamble to this Trust
Agreement.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C.ss.ss.3801 et seq. as it may be amended from time to
time.
"Delaware Trustee" means the commercial bank or trust company
identified as the "Delaware Trustee" in the Preamble to this Trust Agreement
solely in its capacity as Delaware
4
Trustee of the Trust formed and continued hereunder and not in its individual
capacity, or its successor in interest in such capacity, or any successor
trustee appointed as herein provided.
"Depositary" means DTC or any successor thereto.
"Depositor" has the meaning specified in the Preamble to this Trust
Agreement.
"Distribution Date" has the meaning specified in Section 4.01(a).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.01.
"DTC" means The Depository Trust Company.
"Early Termination Event" has the meaning specified in Section 9.02.
"Event of Default" means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) the occurrence of a Debenture Event of Default; or
(b) default by the Trust or the Property Trustee in the
payment of any Distribution when it becomes due and payable, and
continuation of such default for a period of thirty (30) days; or
(c) default by the Trust or the Property Trustee in the
payment of any Redemption Price of any Trust Security when it becomes
due and payable; or
(d) default in the performance, or breach, in any material
respect, of any covenant or warranty of the Trustees in this Trust
Agreement (other than a covenant or warranty a default in the
performance of which or the breach of which is dealt with in clause (b)
or (c), above) and continuation of such default or breach for a period
of sixty (60) days after there has been given, by registered or
certified mail, to the defaulting Trustee or Trustees by the Holders of
at least 25% in aggregate Liquidation Amount of the Outstanding
Preferred Securities a written notice specifying such default or breach
and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
(e) the occurrence of a Bankruptcy Event with respect to the
Property Trustee and the failure by the Depositor to appoint a
successor Property Trustee within sixty (60) days thereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
5
"Expiration Date" has the meaning specified in Section 9.01.
"Extended Interest Period" has the meaning specified in Section 4.1 of
the Indenture.
"Global Preferred Securities Certificate" means a Preferred Securities
Certificate evidencing ownership of Global Preferred Securities.
"Global Preferred Security" means a Preferred Security, the ownership
and transfer of which shall be made through book entries by a Clearing Agency as
described herein.
"Guarantee" means the Preferred Securities Guarantee Agreement executed
and delivered by the Depositor and Christiana Bank & Trust Company, as trustee,
contemporaneously with the execution and delivery of this Trust Agreement, for
the benefit of the Holders of the Preferred Securities, as amended from time to
time.
"Indenture" means the Indenture, dated as of August__, 2002, between
the Depositor and the Debenture Trustee, as trustee, as amended or supplemented
from time to time, pertaining to the Debentures of the Depositor.
"Investment Company Act" means the Investment Company Act of 1940, as
amended, as in effect at the date of execution of this instrument.
"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 an aggregate Liquidation Amount equal to the
aggregate principal amount of Debentures to be contemporaneously redeemed in
accordance with the Indenture and the proceeds of which shall be used to pay the
Redemption Price of such Trust Securities; and (b) with respect to a
distribution of Debentures to Holders of Trust Securities in connection with a
termination or liquidation of the Trust, Debentures having a principal amount
equal to the Liquidation Amount of the Trust Securities of the Holder to whom
such Debentures are distributed. Each Debenture distributed pursuant to clause
(b) above shall carry with it accrued interest in an amount equal to the accrued
and unpaid interest then due on such Debenture.
"Liquidation Amount" means the stated amount of $25 per Trust Security.
"Liquidation Date" means the date on which Debentures are to be
distributed to Holders of Trust Securities in connection with a termination and
liquidation of the Trust pursuant to Section 9.04(a).
"Liquidation Distribution" has the meaning specified in Section
9.04(d).
6
"Officers' Certificate" means a certificate signed by the chairman,
president, chief executive officer or a senior or executive vice president and
by the treasurer or an assistant treasurer or the controller or an assistant
controller or the secretary or an assistant secretary of the Depositor, and
delivered to the appropriate Trustee. One of the officers signing an Officers'
Certificate given pursuant to Section 8.16 shall be the chief executive,
financial or accounting officer of the Depositor. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Trust Agreement shall include:
(a) a statement that each officer signing the Officers' Certificate has
read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers' Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Opinion of Counsel" means an opinion in writing of independent outside
legal counsel, who may be counsel for the Trust, the Property Trustee, the
Delaware Trustee or the Depositor, and who shall be reasonably acceptable to the
Property Trustee.
"Option" has the meaning specified in the Underwriting Agreement.
"Original Trust Agreement" has the meaning specified in the Recitals to
this Trust Agreement.
"Outstanding", when used with respect to the Preferred Securities,
means, as of the date of determination, all of the Preferred Securities
theretofore executed and delivered under this Trust Agreement, except:
(a) the Preferred Securities theretofore canceled by the Property
Trustee or delivered to the Property Trustee for cancellation;
(b) the Preferred Securities for whose payment or redemption money in
the necessary amount has been theretofore deposited with the Property Trustee or
any Paying Agent for the Holders of such Preferred Securities; provided that, if
such Preferred Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Trust Agreement; and
(c) the Preferred Securities which have been paid or in exchange for or
in lieu of which other Preferred Securities have been executed and delivered
pursuant to Sections 5.04, 5.05, 5.11 and 5.14; provided, however, that in
determining whether the Holders of the requisite
7
Liquidation Amount of the Outstanding Preferred Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
the Preferred Securities owned by the Depositor, any Trustee or any Affiliate of
the Depositor or any Trustee shall be disregarded and deemed not to be
Outstanding, except that (i) in determining whether any Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only the Preferred Securities that such Trustee knows
to be so owned shall be so disregarded; and (ii) the foregoing shall not apply
at any time when all of the Outstanding Preferred Securities are owned by the
Depositor, one or more of the Trustees and/or any such Affiliate. The Preferred
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Administrative
Trustees the pledgee's right so to act with respect to such Preferred Securities
and the pledgee is not the Depositor or any other Obligor upon the Preferred
Securities or a Person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Depositor or any Affiliate of
the Depositor.
"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 5.09 and shall initially be the Bank.
"Payment Account" means a segregated non-interest-bearing corporate
trust account maintained by the Property Trustee with the Bank in its trust
department for the benefit of the Securityholders in which all amounts paid in
respect of the Debentures shall be held and from which the Property Trustee
shall make payments to the Securityholders in accordance with Sections 4.01 and
4.02.
"Person" means any individual, corporation, partnership, joint venture,
trust, limited liability company or corporation, unincorporated organization or
government or any agency or political subdivision thereof.
"Preferred Securities Certificate" means a certificate evidencing
ownership of Preferred Securities, substantially in the form attached as Exhibit
C.
"Preferred Security" means an undivided beneficial interest in the
assets of the Trust, having a Liquidation Amount of $25 and having the rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Property Trustee" means the commercial bank or trust company
identified as the "Property Trustee," in the Preamble to this Trust Agreement
solely in its capacity as Property Trustee of the Trust heretofore formed and
continued hereunder and not in its individual capacity, or its successor in
interest in such capacity, or any successor property trustee appointed as herein
provided.
"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
8
Redemption Date and the stated maturity of the Debentures shall be a Redemption
Date for a Like Amount of Trust Securities.
"Redemption Price" means, with respect to any Trust Security, the
Liquidation Amount of such Trust Security, plus accumulated and unpaid
Distributions to the Redemption Date, paid by the Depositor upon the concurrent
redemption of a Like Amount of Debentures, allocated on a pro rata basis (based
on Liquidation Amounts) among the Trust Securities.
"Relevant Trustee" shall have the meaning specified in Section 8.10.
"Responsible Officer" when used with respect to the Trustees means any
officer within the Corporate Trust Office of the Trustee with direct
responsibility for the administration of the Trust Agreement, including any vice
president, any assistant vice president, managing director, director, associate
or any other officer or assistant officer of the Trustees who customarily
performs functions similar to those performed by the Persons who at the time
shall be such officers, respectively, or to whom any corporate trust matter is
referred because of his or her knowledge of and familiarity with the particular
subject.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 5.04.
"Securityholder" or "Holder" means a Person in whose name a Trust
Security is or Trust Securities are registered in the Securities Register; any
such Person is a beneficial owner within the meaning of the Delaware Business
Trust Act.
"Trust" means the Delaware business trust continued hereby and
identified on the cover page to this Trust Agreement.
"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 all exhibits hereto, including, for all
purposes of this Trust Agreement and any such modification, amendment or
supplement, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this Trust Agreement and any such modification, amendment or
supplement, respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, as in force at the date as of which this instrument was executed;
provided, however, that in the event the Trust Indenture Act of 1939, as
amended, is amended after such date, "Trust Indenture Act" means, to the extent
required by any such amendment, the Trust Indenture Act of 1939 as so amended.
"Trust Property" means (a) the Debentures; (b) the rights of the
Property Trustee under the Guarantee; (c) any cash on deposit in, or owing to,
the Payment Account; and (d) all proceeds and rights in respect of the foregoing
and any other property and assets for the time being held or deemed to be held
by the Property Trustee pursuant to the trusts of this Trust Agreement.
9
"Trust Security" means any one of the Common Securities or the
Preferred Securities.
"Trust Securities Certificate" means any one of the Common Securities
Certificates or the Preferred Securities Certificates.
"Trustees" means, collectively, the Property Trustee, the Delaware
Trustee and the Administrative Trustees.
"Underwriting Agreement" means the Underwriting Agreement, dated as of
August__, 2002, among the Trust, the Depositor and the underwriters named
therein.
ARTICLE II
CONTINUATION OF THE TRUST
Section 2.01. Name.
-----
The Trust continued hereby shall be known as "NPB Capital Trust II," as
such name may be modified from time to time by the Administrative Trustees
following written notice to the Holders of Trust Securities and the other
Trustees, in which name the Trustees may engage in the transactions contemplated
hereby, make and execute contracts and other instruments on behalf of the Trust
and xxx and be sued.
Section 2.02. Office of the Delaware Trustee; Principal Place of
--------------------------------------------------
Business.
---------
The address of the Delaware Trustee in the State of Delaware is 0000
Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust
Administration, or such other address in the State of Delaware as the Delaware
Trustee may designate by written notice to the Securityholders and the
Depositor. The principal executive office of the Trust is c/o National Penn
Bancshares, Inc., Philadelphia and Xxxxxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxxxx
00000, Attention: Secretary.
Section 2.03. Initial Contribution of Trust Property; Organizational
------------------------------------------------------
Expenses.
---------
The Trustees acknowledge receipt in trust from the Depositor in
connection with the Original Trust Agreement of the sum of $10, which
constitutes the initial Trust Property. The Depositor shall pay all
organizational expenses of the Trust as they arise or shall, upon request of any
Trustee, promptly reimburse such Trustee for any such expenses paid by such
Trustee. The Depositor shall make no claim upon the Trust Property for the
payment of such expenses.
Section 2.04. Issuance of the Preferred Securities.
-------------------------------------
On August __, 2002, the Depositor, on behalf of the Trust and pursuant
to the Original Trust Agreement, executed and delivered the Underwriting
Agreement. Contemporaneously with
10
the execution and delivery of this Trust Agreement, an Administrative Trustee,
on behalf of the Trust, shall execute in accordance with Section 5.02, and
deliver in accordance with the Underwriting Agreement, Preferred Securities
Certificates, registered in the name of the Persons entitled thereto, in an
aggregate amount of 2,200,000 Preferred Securities having an aggregate
Liquidation Amount of $55,000,000 against receipt of the aggregate purchase
price of such Preferred Securities of $55,000,000, which amount such
Administrative Trustee shall promptly deliver to the Property Trustee. If the
underwriters exercise their Option and there is an Option Closing Date (as such
term is defined in the Underwriting Agreement), then an Administrative Trustee,
on behalf of the Trust, shall execute in accordance with Section 5.02 and
deliver in accordance with the Underwriting Agreement, Preferred Securities
Certificates, registered in the name of the Persons entitled thereto in an
aggregate amount of up to 330,000 Preferred Securities having an aggregate
Liquidation Amount of up to $8,250,000 against receipt of the aggregate purchase
price of such Preferred Securities of up to $8,250,000, which amount such
Administrative Trustee shall promptly deliver to the Property Trustee.
Section 2.05. Issuance of the Common Securities; Subscription and
---------------------------------------------------
Purchase of the Debentures.
---------------------------
(a) Contemporaneously with the execution and delivery of this
Trust Agreement, an Administrative Trustee, on behalf of the Trust, shall
execute in accordance with Section 5.02 and the Property Trustee shall
authenticate and deliver to the Depositor, Common Securities Certificates,
registered in the name of the Depositor, in an aggregate amount of 68,041 Common
Securities having an aggregate Liquidation Amount of $1,701,025 against payment
by the Depositor of such amount. Contemporaneously therewith, an Administrative
Trustee, on behalf of the Trust, shall subscribe to and purchase from the
Depositor Debentures, registered in the name of the Property Trustee on behalf
of the Trust and having an aggregate principal amount equal to $56,701,025, and,
in satisfaction of the purchase price for such Debentures, the Property Trustee,
on behalf of the Trust, shall deliver to the Depositor the sum of $56,701,025.
(b) If the underwriters exercise the Option and there is an
Option Closing Date, then an Administrative Trustee, on behalf of the Trust,
shall execute in accordance with Section 5.02 and the Property Trustee shall
authenticate and deliver to the Depositor, Common Securities Certificates,
registered in the name of the Depositor, in an additional aggregate amount of
10,206 Common Securities having an aggregate Liquidation Amount of an additional
$255,150 against payment by the Depositor of such amount. Contemporaneously
therewith, an Administrative Trustee, on behalf of the Trust, shall subscribe to
and purchase from the Depositor, additional Debentures, registered in the name
of the Trust and having an aggregate principal amount of up to $8,505,150, and,
in satisfaction of the purchase price of such Debentures, the Property Trustee,
on behalf of the Trust, shall deliver to the Depositor up to $8,505,150, such
aggregate amount to be equal to the sum of the amounts received from the
Depositor pursuant to 2.05(b) and from one of the Administrative Trustees
pursuant to the last sentence of Section 2.04.
11
Section 2.06. Declaration of Trust.
---------------------
The exclusive purposes and functions of the Trust are (a) to issue and
sell Trust Securities and use the proceeds from such sale to acquire the
Debentures; and (b) to engage in those activities necessary, convenient or
incidental thereto. The Depositor hereby appoints the Trustees as trustees of
the Trust, to have all the rights, powers and duties to the extent set forth
herein, and the Trustees hereby accept such appointment. The Property Trustee
hereby declares that it shall hold the Trust Property in trust upon and subject
to the conditions set forth herein for the benefit of the Securityholders. The
Administrative Trustees shall have all rights, powers and duties set forth
herein and in accordance with applicable law with respect to accomplishing the
purposes of the Trust. The Delaware Trustee shall not be entitled to exercise
any powers, nor shall the Delaware Trustee have any of the duties and
responsibilities, of the Property Trustee or the Administrative Trustees set
forth herein. The Delaware Trustee shall be one of the Trustees of the Trust for
the sole and limited purpose of fulfilling the requirements of Section 3807 of
the Delaware Business Trust Act.
Section 2.07. Authorization to Enter Into Certain Transactions.
-------------------------------------------------
(a) The Trustees shall conduct the affairs of the Trust in
accordance with the terms of this Trust Agreement. Subject to the limitations
set forth in paragraph (b) of this Section 2.07 and Article VIII, and in
accordance with the following provisions (i) and (ii), the Administrative
Trustees shall have the authority to enter into all transactions and agreements
determined by the Administrative Trustees to be appropriate in exercising the
authority, express or implied, otherwise granted to the Administrative Trustees
under this Trust Agreement, and to perform all acts in furtherance thereof,
including without limitation, the following:
(i) As among the Trustees, each Administrative Trustee, acting
singly or jointly, shall have the power and authority to act on behalf
of the Trust with respect to the following matters:
(A) the issuance and sale of the Trust Securities and the
compliance with the Underwriting Agreement in connection therewith;
(B) assisting in the registration of the Preferred Securities
under the Securities Act of 1933, as amended, and under state securities or blue
sky laws, and the qualification of this Trust Agreement as a trust indenture
under the Trust Indenture Act;
(C) assisting in the inclusion of the Preferred Securities in
the Nasdaq National Market or in the listing of the Preferred Securities on such
securities exchange or exchanges as shall be determined by the Depositor and the
registration of the Preferred Securities under the Exchange Act, and the
preparation and filing of all periodic and other reports and other documents
pursuant to the foregoing;
12
(D) the sending of notices (other than notices of default) and
other information regarding the Trust Securities and the Debentures to the
Securityholders in accordance with this Trust Agreement;
(E) the appointment of a Paying Agent, Authenticating Agent
and Securities Registrar in accordance with this Trust Agreement;
(F) to the extent provided in this Trust Agreement, the
winding up of the affairs of and liquidation of the Trust and the preparation,
execution and filing of the certificate of cancellation with the Secretary of
State of the State of Delaware;
(G) to take all action that may be necessary or appropriate
for the preservation and the continuation of the Trust's valid existence,
rights, franchises and privileges as a statutory business trust under the laws
of the State of Delaware and of each other jurisdiction in which such existence
is necessary to protect the limited liability of the Holders of the Preferred
Securities or to enable the Trust to effect the purposes for which the Trust was
created; and
(H) the taking of any action incidental to the foregoing as
the Administrative Trustees may from time to time determine is necessary or
advisable to give effect to the terms of this Trust Agreement for the benefit of
the Securityholders (without consideration of the effect of any such action on
any particular Securityholder).
(ii) As among the Trustees, the Property Trustee shall have
the power, duty and authority to act on behalf of the Trust with respect to the
following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Debentures;
(C) the collection of interest, principal and any other
payments made in respect of the Debentures in the Payment Account;
(D) the distribution of amounts owed to the
Securityholders in respect of the Trust Securities in accordance with the terms
of this Trust Agreement;
(E) the exercise of all of the rights, powers and
privileges of a holder of the Debentures;
(F) the sending of notices of default and other
information regarding the Trust Securities and the Debentures to the
Securityholders in accordance with this Trust Agreement;
(G) the distribution of the Trust Property in accordance
with the terms of this Trust Agreement;
13
(H) to the extent provided in this Trust Agreement, the
winding up of the affairs of and liquidation of the Trust;
(I) after an Event of Default, the taking of any action
incidental to the foregoing as the Property Trustee may from time to time
determine is necessary or advisable to give effect to the terms of this Trust
Agreement and protect and conserve the Trust Property for the benefit of the
Securityholders (without consideration of the effect of any such action on any
particular Securityholder);
(J) registering transfers of the Trust Securities in
accordance with this Trust Agreement; and
(K) except as otherwise provided in this Section
2.07(a)(ii), the Property Trustee shall have none of the duties, liabilities,
powers or the authority of the Administrative Trustees set forth in Section
2.07(a)(i).
(b) So long as this Trust Agreement remains in effect, the
Trust (or the Trustees acting on behalf of the Trust) shall not undertake any
business, activities or transaction except as expressly provided herein or
contemplated hereby. In particular, the Trustees shall not (i) acquire any
investments or engage in any activities not authorized by this Trust Agreement;
(ii) sell, assign, transfer, exchange, mortgage, pledge, set-off or otherwise
dispose of any of the Trust Property or interests therein, including to
Securityholders, except as expressly provided herein; (iii) take any action that
would cause the Trust to fail or cease to qualify 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. The
Administrative Trustees 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred
Securities, the Depositor shall have the right and responsibility to assist the
Trust with respect to, or effect on behalf of the Trust, the following (and any
actions taken by the Depositor in furtherance of the following prior to the date
of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) the preparation and filing by the Trust with the
Commission and the execution on behalf of the Trust of a registration statement
on the appropriate form in relation to the Preferred Securities and the
Debentures, including any amendments thereto;
(ii) the determination of the states in which to take
appropriate action to qualify or register for sale all or part of the Preferred
Securities and to do any and all such acts, other than actions which must be
taken by or on behalf of the Trust, and advise the Trustees of actions they must
take on behalf of the Trust, and prepare for execution and filing any
14
documents to be executed and filed by the Trust or on behalf of the Trust, as
the Depositor deems necessary or advisable in order to comply with the
applicable laws of any such states;
(iii) the preparation for filing by the Trust and
execution on behalf of the Trust of an application to the Nasdaq National Market
or a national stock exchange or other organization for inclusion, listing or
quotation upon notice of issuance of any Preferred Securities and to file or
cause an Administrative Trustee to file thereafter with such exchange or
organization such notifications and documents as may be necessary from time to
time;
(iv) the preparation for filing by the Trust with the
Commission and the execution on behalf of the Trust of a registration statement
on Form 8-A relating to the registration of the Preferred Securities under
Section 12(b) or 12(g) of the Exchange Act, including any amendments thereto;
(v) the negotiation of the terms of, and the execution
and delivery of, the Underwriting Agreement providing for the sale of the
Preferred Securities; and
(vi) the taking of any other actions necessary or
desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the
Administrative Trustees are authorized and directed to conduct the affairs of
the Trust and to operate the Trust so that the Trust shall not be deemed to be
an "investment company" required to be registered under the Investment Company
Act, shall be classified as a "grantor trust" and not as an association taxable
as a corporation for United States federal income tax purposes and so that the
Debentures shall be treated as indebtedness of the Depositor for United States
federal income tax purposes. In this connection, subject to Section 10.02, the
Depositor and the Administrative Trustees are authorized to take any action and
the Administrative Trustees are authorized to direct the Property Trustee in
writing to take any action, not inconsistent with applicable law or this Trust
Agreement, that each of the Depositor and the Administrative Trustees determines
in their discretion to be necessary or desirable for such purposes. The Property
Trustee shall take any action so directed by one or more of the Administrative
Trustees.
Section 2.08. Assets of Trust.
----------------
The assets of the Trust shall consist of the Trust Property.
Section 2.09. 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 Securityholders in accordance with
this Trust Agreement.
15
Section 2.10. Execution of Documents.
-----------------------
Unless otherwise determined by the Administrative Trustees and except
as otherwise required by the Delaware Business Trust Act, any Administrative
Trustee is authorized to execute on behalf of the Trust any document which the
Administrative Trustees have the power and authority to execute pursuant to this
Trust Agreement.
ARTICLE III
PAYMENT ACCOUNT
Section 3.01. Payment Account.
----------------
(a) On or prior to the Closing Date, the Property Trustee
shall establish the Payment Account. The Property Trustee and any agent of the
Property Trustee shall have exclusive control and sole right of withdrawal with
respect to the Payment Account for the purpose of making deposits 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 Securityholders 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 Debentures. Amounts held in the
Payment Account shall not be invested by the Property Trustee pending
distribution thereof.
ARTICLE IV
DISTRIBUTIONS; REDEMPTION
Section 4.01. Distributions.
--------------
(a) Distributions on the Trust Securities shall be cumulative,
and shall accumulate whether or not there are funds of the Trust available for
the payment of Distributions. Distributions shall accumulate from the date of
issuance of the Trust Securities, and, except during any Extended Interest
Period with respect to the Debentures, shall be payable quarterly in arrears on
March 31, June 30, September 30 and December 31 of each year, commencing on
September 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
(and without any interest or other payment in respect of any such delay) except
that if such Business Day is in the next succeeding calendar year, such payment
shall be made on the immediately preceding Business Day (and without any
reduction in interest or any other payment in respect of any such acceleration),
in each case with the same
16
force and effect as if made on such date (each date on which Distributions are
payable in accordance with this Section 4.01(a), a "Distribution Date").
(b) The Trust Securities represent undivided beneficial
interests in the Trust Property. Distributions on the Trust Securities shall be
payable at a rate of __% per annum of the Liquidation Amount of the Trust
Securities. The amount of Distributions payable for any full period shall be
computed on the basis of a 360-day year of twelve 30-day months. The amount of
Distributions for any partial period shall be computed on the basis of the
number of days elapsed in a 360-day year of twelve 30-day months. During any
Extended Interest Period with respect to the Debentures, Distributions on the
Preferred Securities shall be deferred for a period equal to the Extended
Interest Period. The amount of Distributions payable for any period shall
include the Additional Amounts, if any.
(c) Distributions on the Trust Securities shall be made by the
Property Trustee solely from the Payment Account and shall be payable on each
Distribution Date only to the extent that the Trust has funds then on hand and
immediately available by 12:30 p.m. on each Distribution Date in the Payment
Account for the payment of such Distributions.
(d) 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 on the relevant record date, which
shall be the 15th day of March, June, September or December for Distributions
payable on the last calendar day of the respective month; provided, however,
that for any Trust Securities held in global form, Distributions shall be
payable to the Holder thereof as of one Business Day immediately preceding the
Distribution Date.
Section 4.02. Redemption.
-----------
(a) On each Debenture Redemption Date and at maturity of the
Debentures, the Trust shall be required to redeem a Like Amount of Trust
Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property
Trustee by first-class mail, postage prepaid, mailed not less than thirty (30)
nor more than sixty (60) days prior to the Redemption Date to each Holder of
Trust Securities to be redeemed, at such Holder's address appearing in the
Securities Register. The Property Trustee shall have no responsibility for the
accuracy of any CUSIP number contained in such notice. All notices of redemption
shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the CUSIP number;
(iv) if less than all the outstanding Trust Securities
are to be redeemed, the identification and the aggregate Liquidation Amount of
the particular Trust Securities to be redeemed;
17
(v) that, on the Redemption Date, the Redemption Price
shall become due and payable upon each such Trust Security to be redeemed and
that Distributions thereon shall cease to accumulate on and after said date,
except as provided in Section 4.02(d); and
(vi) the place or places at which Trust Securities are to
be surrendered for the payment of the Redemption Price.
(c) The Trust Securities redeemed on each Redemption Date
shall be redeemed at the Redemption Price with the proceeds from the
contemporaneous redemption of the 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 Trust has immediately available
funds then on hand and available in the Payment Account for the payment of such
Redemption Price.
(d) If the Property Trustee gives a notice of redemption in
respect of any Preferred Securities, then, by 12:00 noon, Wilmington, Delaware
time, on the Redemption Date, subject to Section 4.02(c), the Property Trustee,
shall, with respect to Preferred Securities held in global form, deposit with
the Clearing Agency for such Preferred Securities, to the extent available
therefor, funds sufficient to pay the applicable Redemption Price and will give
such Clearing Agency irrevocable instructions and authority to pay the
Redemption Price to the Holders of the Preferred Securities. With respect to
Trust Securities that are not held in global form, the Property Trustee, subject
to Section 4.02(c), shall deposit with the Paying Agent funds sufficient to pay
the applicable Redemption Price and shall give the Paying Agent irrevocable
instructions and authority to pay the Redemption Price to the record holders
thereof upon surrender of their Preferred Securities Certificates.
Notwithstanding the foregoing, Distributions payable on or prior to the
Redemption Date for any Trust Securities called for redemption shall be payable
to the Holders of such Trust Securities as they appear on the Securities
Register for the Trust Securities on the relevant record dates for the related
Distribution Dates. If notice of redemption shall have been given and funds
deposited as required, then upon the date of such deposit, (i) all rights of
Securityholders holding Trust Securities so called for redemption shall cease,
except the right of such Securityholders to receive the Redemption Price, but
without interest, (ii) such Trust Securities shall cease to be Outstanding,
(iii) the Clearing Agency for the Preferred Securities or its nominee, as the
registered Holder of the Global Preferred Securities Certificate, shall receive
a registered global certificate or certificates representing the Debentures to
be delivered upon such distribution with respect to Preferred Securities held by
the Clearing Agency or its nominee, and (iv) any Trust Securities Certificates
not held by the Clearing Agency for the Preferred Securities or its nominee as
specified in clause (iii) above will be deemed to represent 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. In the event that any date on which any Redemption Price is payable
is not a Business Day, then payment of the Redemption Price payable on such date
shall 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
18
that, if such Business Day is in the next succeeding calendar year, such payment
shall be made on the immediately preceding Business Day (and without any
reduction of interest or any other payment in respect of any such acceleration),
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 Trust or by the Depositor pursuant to the Guarantee, Distributions on such
Trust Securities shall continue to accumulate, at the then applicable rate, from
the Redemption Date originally established by the Trust for such Trust
Securities to the date such Redemption Price is actually paid, in which case the
actual payment date shall be the date fixed for redemption for purposes of
calculating the Redemption Price.
(e) Payment of the Redemption Price on the Trust Securities
shall be made to the record holders thereof as they appear on the Securities
Register for the Trust Securities on the relevant record date, which shall be
the date fifteen (15) days prior to the relevant Redemption Date.
(f) Subject to Section 4.03(a), if less than all the
outstanding Trust Securities are to be redeemed on a Redemption Date, then the
aggregate Liquidation Amount of Trust Securities to be redeemed shall be
allocated on a pro rata basis (based on Liquidation Amounts) among the Common
Securities and the Preferred Securities. The particular Preferred Securities to
be redeemed shall be selected not more than sixty (60) days prior to the
Redemption Date by the Property Trustee from the Outstanding Preferred
Securities not previously called for redemption, by such method (including,
without limitation, by lot) as the Property Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of portions
(equal to such Liquidation Amount or an integral multiple of such Liquidation
Amount in excess thereof) of the Liquidation Amount of the Preferred Securities
of a denomination larger than such Liquidation Amount; provided, however, in the
event the redemption relates only to Preferred Securities purchased and held by
the Depositor being redeemed for a Like Amount of Debentures, the Property
Trustee shall select those particular Preferred Securities for redemption. The
Property Trustee shall promptly notify the Securities Registrar in writing of
the Preferred Securities selected for redemption and, in the case of any
Preferred Securities selected for partial redemption, the Liquidation Amount
thereof to be redeemed. For all purposes of this Trust Agreement, unless the
context otherwise requires, all provisions relating to the redemption of the
Preferred Securities shall relate, in the case of any Preferred Securities
redeemed or to be redeemed only in part, to the portion of the Liquidation
Amount of the Preferred Securities which has been or is to be redeemed.
Section 4.03. Subordination of the Common Securities.
---------------------------------------
(a) Payment of Distributions (including Additional Amounts, if
applicable) on, and the Redemption Price of, the Trust Securities, as
applicable, shall be made, subject to Section 4.02(f), pro rata among the Common
Securities and the Preferred Securities based on the Liquidation Amount of the
Trust Securities; provided, however, that if on any Distribution Date or
Redemption Date any Event of Default resulting from a Debenture Event of Default
shall have occurred and be continuing, no payment of any Distribution (including
Additional Amounts, if
19
applicable) on, or Redemption Price of, any Common Security, and no other
payment on account of the redemption, liquidation or other acquisition of the
Common Securities, shall be made unless payment in full in cash of all
accumulated and unpaid Distributions (including Additional Amounts, if
applicable) on all Outstanding Preferred Securities for all Distribution periods
terminating on or prior thereto, or in the case of payment of the Redemption
Price the full amount of such Redemption Price on all Outstanding Preferred
Securities then called for redemption, 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 Additional
Amounts, if applicable) on, or the Redemption Price of, the Preferred Securities
then due and payable.
(b) In the case of the occurrence of any Event of Default
resulting from a 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 effect of all such Events of
Default with respect to the Preferred Securities shall have been cured, waived
or otherwise eliminated. Until any such Event of Default under this Trust
Agreement with respect to the Preferred Securities shall have been so cured,
waived or otherwise eliminated, the Property Trustee shall act solely on behalf
of the Holders of the Preferred Securities and not the Holder of the Common
Securities, and only the Holders of the Preferred Securities shall have the
right to direct the Property Trustee to act on their behalf.
Section 4.04. Payment Procedures.
-------------------
Payments of Distributions (including Additional Amounts, if applicable)
in respect of the Preferred Securities shall be made by check mailed to the
address of the Person entitled thereto as such address shall appear on the
Securities Register or, if the Preferred Securities are held by a Clearing
Agency, such Distributions shall be made to the Clearing Agency in immediately
available funds, which will credit the relevant accounts on the applicable
Distribution Dates. Payments 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 4.05. Tax Returns and Reports.
------------------------
The Administrative Trustees 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
Trust. In this regard, the Administrative Trustees shall (a) prepare and file
(or cause to be prepared and filed) the appropriate Internal Revenue Service
form required to be filed in respect of the Trust in each taxable year of the
Trust; and (b) prepare and furnish (or cause to be prepared and furnished) to
each Securityholder the appropriate Internal Revenue Service forms required to
be furnished to such Securityholder or the information required to be provided
on such forms. The Administrative Trustees shall provide the Depositor with a
copy of all such returns and reports promptly after such filing or furnishing.
The Property Trustee shall comply with United States federal withholding and
backup withholding tax laws and information reporting requirements with respect
to any payments to the Securityholders under the Trust Securities.
20
On or before December 15 of each year during which any Preferred
Securities are outstanding, the Administrative Trustees 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 Internal Revenue Code of 1986, as amended.
Such information shall include the amount of original issue discount includible
in income for each outstanding Preferred Security during such year, if any.
Section 4.06. Payment of Taxes, Duties, Etc. of the Trust.
--------------------------------------------
Upon receipt under the Debentures of Additional Payments, the Property
Trustee, at the written direction of an Administrative Trustee or the Depositor,
shall promptly pay any taxes, duties or governmental charges of whatsoever
nature (other than withholding taxes) imposed on the Trust by the United States
or any other taxing authority and shall be reimbursed by the Trust.
Section 4.07. Payments under the Indenture.
-----------------------------
Any amount payable hereunder to any Holder of Preferred Securities
shall be reduced by the amount of any corresponding payment such Holder has
directly received under the Indenture pursuant to Section 5.14(b) or (c) hereof.
Section 4.08. Liability of the Holder of the Common Securities.
-------------------------------------------------
The Holder of the Common Securities shall be liable for the debts and
obligations of the Trust.
ARTICLE V
THE TRUST SECURITIES CERTIFICATES
Section 5.01. Initial Ownership.
------------------
Upon the creation of the Trust and the contribution by the Depositor
pursuant to Section 2.03 and until the issuance of the Trust Securities, and at
any time during which no Trust Securities are Outstanding, the Depositor shall
be the sole beneficial owner of the Trust.
Section 5.02. The Trust Securities Certificates.
----------------------------------
The Preferred Securities Certificates shall be issued in minimum
denominations of the Liquidation Amount and integral multiples of such
Liquidation Amount in excess thereof, and the Common Securities Certificates
shall be issued in denominations of the Liquidation Amount and integral
multiples thereof. The Trust Securities Certificates shall be executed on behalf
of the
21
Trust by manual or facsimile signature of at least one Administrative Trustee.
The 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 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 Securityholder, and shall be entitled to
the rights and subject to the obligations of a Securityholder hereunder, upon
due registration of such Trust Securities Certificate in such transferee's name
pursuant to Sections 5.04, 5.11 and 5.14.
Section 5.03. Execution, Authentication and Delivery of the Trust
---------------------------------------------------
Securities Certificates.
------------------------
(a) On the Closing Date and, if applicable, the Option Closing
Date, as such term is defined in the Underwriting Agreement, the Administrative
Trustees shall cause Trust Securities Certificates, in an aggregate Liquidation
Amount as provided in Sections 2.04 and 2.05, to be executed on behalf of the
Trust by the manual or facsimile signature of at least one of the Administrative
Trustees and delivered to the Property Trustee and upon such delivery the
Property Trustee shall authenticate such Trust Securities Certificates upon the
written order of the Trust, executed by the Administrative Trustees, or upon the
written order of the Depositor, without further corporate action by the
Depositor, in authorized denominations.
(b) The Property Trustee may appoint an Authenticating Agent
acceptable to the Trust to authenticate the Preferred Securities. An
Authenticating Agent may authenticate the Preferred Securities whenever the
Property Trustee may do so. Each reference in this Trust Agreement to
authentication by the Property Trustee includes authentication by such agent. An
Authenticating Agent has the same rights as the Property Trustee to deal with
the Depositor or the Trust.
Section 5.03A. Global Preferred Security.
--------------------------
(a) Any Global Preferred Security issued under this Trust
Agreement shall be registered in the name of the nominee of the Clearing Agency
and delivered to such custodian therefor, and such Global Preferred Security
shall constitute a single Preferred Security for all purposes of this Trust
Agreement.
(b) Notwithstanding any other provision in this Trust
Agreement, no Global Preferred Security may be exchanged for Preferred
Securities registered in the names of persons other than the Depositary or its
nominee unless (i) the Depositary notifies the Administrative Trustees and
Property Trustee in writing that it is unwilling or unable to continue as a
depositary for such Global Preferred Securities and the Depositor is unable to
locate a qualified successor depositary, (ii) the Depositor executes and
delivers to the Administrative Trustees and Property Trustee a written order
stating that it elects to terminate the book-entry system through the Depositary
or (iii) there shall have occurred and be continuing a Debenture Event of
Default.
22
(c) If a Preferred Security is to be exchanged in whole or in
part for a beneficial interest in a Global Preferred Security, then either (i)
such Global Preferred Security shall be so surrendered for exchange or
cancellation as provided in this Article V or (ii) the Liquidation Amount
thereof shall be reduced or increased by an amount equal to the portion thereof
to be so exchanged or canceled, or equal to the Liquidation Amount of such other
Preferred Securities 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 Securities Registrar, whereupon the Property Trustee, in accordance with the
rules and procedures of the Depositary for such Global Preferred Security (the
"Applicable Procedures"), shall instruct the Clearing Agency or its authorized
representative to make a corresponding adjustment to its records. Upon any such
surrender or adjustment of a Global Preferred Security by the Clearing Agency,
accompanied by registration instructions, the Administrative Trustees shall
execute and the Property Trustee shall, subject to Section 5.04(b) and as
otherwise provided in this Article V, authenticate and deliver any Preferred
Securities issuable in exchange for such Global Preferred Security (or any
portion thereof) in accordance with the written instructions of the Clearing
Agency. The Property Trustee shall not be liable for any delay in delivery of
such instructions and may conclusively rely on, and shall be fully protected in
relying on, such instructions.
(d) Every Preferred Security executed, authenticated and
delivered upon registration of transfer of, or in exchange for or in lieu of, a
Global Preferred Security or any portion thereof, whether pursuant to this
Article V or otherwise, shall be executed, authenticated and delivered in the
form of, and shall be, a Global Preferred Security, unless such Global Preferred
Security is registered in the name of a Person other than the Clearing Agency
for such Global Preferred Security or a nominee thereof.
(e) The Clearing Agency or its nominee, as the registered
owner of a Global Preferred Security, shall be considered the Holder of the
Preferred Securities represented by such Global Preferred Security for all
purposes under this Trust Agreement and the Preferred Securities, and owners of
beneficial interests in such Global Preferred Security shall hold such interests
pursuant to the Applicable Procedures and, except as otherwise provided herein,
shall not be entitled to receive physical delivery of any such Preferred
Securities in definitive form and shall not be considered the Holders thereof
under this Trust Agreement. Accordingly, any such owner's beneficial interest in
the Global Preferred Securities shall be shown only on, and the transfer of such
interest shall be effected only through, records maintained by the Clearing
Agency or its nominee. Neither the Property Trustee, the Securities Registrar
nor the Depositor shall have any liability in respect of any transfers effected
by the Clearing Agency.
(f) The rights of owners of beneficial interests in a Global
Preferred Security shall be exercised only through the Clearing Agency and shall
be limited to those established by law and agreements between such owners and
the Clearing Agency.
23
Section 5.04. Registration of Transfer and Exchange of Preferred
--------------------------------------------------
Securities Certificates.
------------------------
(a) The Property Trustee shall keep or cause to be kept at its
Corporate Trust Office a register or registers for the purpose of registering
the Trust Securities Certificates and, subject to the provisions of Section
5.03A, transfers and exchanges of the Preferred Securities Certificates (herein
referred to as the "Securities Register") in which the registrar designated by
the Depositor (the "Securities Registrar"), subject to such reasonable
regulations as it may prescribe, shall provide for the registration of the
Preferred Securities Certificates and the Common Securities Certificates
(subject to Section 5.10 in the case of the Common Securities Certificates) and
registration of transfers and exchanges of the Preferred Securities Certificates
as herein provided. The Property Trustee shall be the initial Securities
Registrar.
(b) Subject to the provisions of Section 5.03A, upon surrender
for registration of transfer of any Preferred Securities Certificate at the
office or agency maintained pursuant to Section 5.08, the Administrative
Trustees or any one of them shall execute in accordance with Section 5.02 and
the Property Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Preferred Securities
Certificates in authorized denominations of a like aggregate Liquidation Amount
dated the date of authentication.
The Securities Registrar shall not be required to register the transfer
of any of the Preferred Securities that have been called for redemption. At the
option of a Holder, the Preferred Securities Certificates may be exchanged for
other Preferred Securities Certificates in authorized denominations of the same
class and of a like aggregate Liquidation Amount upon surrender of the Preferred
Securities Certificates to be exchanged at the office or agency maintained
pursuant to Section 5.08.
(c) Every Preferred Securities Certificate presented or
surrendered for registration of transfer or exchange, subject to the provisions
of Section 5.03A, shall be accompanied by a written instrument of transfer in
form satisfactory to the Property Trustee and the Securities Registrar duly
executed by the Holder or his attorney duly authorized in writing. Each
Preferred Securities Certificate surrendered for registration of transfer or
exchange shall be canceled and subsequently disposed of by the Property Trustee
in accordance with its customary practice. The Trust shall not be required to
(i) issue, register the transfer of, or exchange any of the Preferred Securities
during a period beginning at the opening of business 15 calendar days before the
date of mailing of a notice of redemption of any of the Preferred Securities
called for redemption and ending at the close of business on the day of such
mailing; or (ii) register the transfer of or exchange any of the Preferred
Securities so selected for redemption, in whole or in part, except the
unredeemed portion of any such Preferred Securities being redeemed in part.
(d) No service charge shall be made for any registration of
transfer or exchange of Preferred Securities Certificates, subject to the
provisions of Section 5.03A, but the Securities Registrar may require payment of
a sum sufficient to cover any tax or governmental charge that
24
may be imposed in connection with any transfer or exchange of the Preferred
Securities Certificates.
(e) Preferred Securities may only be transferred, in whole or
in part, in accordance with the terms and conditions set forth in this Trust
Agreement. Any transfer or purported transfer of any Preferred Security not made
in accordance with this Trust Agreement shall be null and void. A Preferred
Security that is not a Global Preferred Security may be transferred, in whole or
in part, to a Person who takes delivery in the form of another Preferred
Security that is not a Global Preferred Security as provided in Section 5.04(a).
A beneficial interest in a Global Preferred Security may be exchanged for a
Preferred Security that is not a Global Preferred Security only as provided in
Section 5.03A.
Section 5.05 Mutilated, Destroyed, Lost or Stolen Trust Securities
-----------------------------------------------------
Certificates.
-------------
If (a) any mutilated Trust Securities Certificate shall be surrendered
to the Securities Registrar, or if the Securities Registrar shall receive
evidence to its satisfaction of the destruction, loss or theft of any Trust
Securities Certificate; and (b) there shall be delivered to the Securities
Registrar, the Property Trustee and the Administrative Trustees such security or
indemnity as may be required by them to save each of them harmless, then in the
absence of notice that such Trust Securities Certificate shall have been
acquired by a bona fide purchaser, the Administrative Trustees, or any one of
them, on behalf of the Trust shall execute and make available for delivery, 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 5.05, the Administrative Trustees or the
Securities Registrar may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection therewith.
Any duplicate Trust Securities Certificate issued pursuant to this Section 5.05
shall constitute conclusive evidence of an undivided beneficial interest in the
assets of the Trust, as if originally issued, whether or not the lost, stolen or
destroyed Trust Securities Certificate shall be found at any time.
Section 5.06. Persons Deemed Securityholders.
-------------------------------
The Trustees, the Paying Agent and the Securities Registrar shall treat
the Person in whose name any Trust Securities Certificate shall be registered in
the Securities Register as the owner of such Trust Securities Certificate for
the purpose of receiving Distributions and for all other purposes whatsoever,
and neither the Trustees nor the Securities Registrar shall be bound by any
notice to the contrary.
Section 5.07. Access to List of the Securityholders' Names and
------------------------------------------------
Addresses.
----------
At any time when the Property Trustee is not also acting as the
Securities Registrar, the Administrative Trustees or the Depositor shall furnish
or cause to be furnished to the Property Trustee (a) within five Business Days
of March 15, June 15, September 15 and December 15 in each year, a list, in such
form as the Property Trustee may reasonably require, of the names and
25
addresses of the Securityholders as of the most recent record date; and (b)
promptly after receipt by any Administrative Trustee or the Depositor of a
request therefore from the Property Trustee in order to enable the Property
Trustee to discharge its obligations under this Trust Agreement, in each case to
the extent such information is in the possession or control of the
Administrative Trustees or the Depositor and is not identical to a previously
supplied list or has not otherwise been received by the Property Trustee in its
capacity as Securities Registrar. The rights of the Securityholders to
communicate with other Securityholders with respect to their rights under this
Trust Agreement or under the Trust Securities, and the corresponding rights of
the Trustee shall be as provided in the Trust Indenture Act. Each Holder, by
receiving and holding a Trust Securities Certificate, and each owner shall be
deemed to have agreed not to hold the Depositor, the Property Trustee or the
Administrative Trustees accountable by reason of the disclosure of its name and
address, regardless of the source from which such information was derived.
Section 5.08. Maintenance of Office or Agency.
--------------------------------
The Property Trustee shall designate with the consent of the
Administrative Trustees, which consent shall not be unreasonably withheld, an
office or offices or agency or agencies where the Preferred Securities
Certificates may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Trustees in respect of the Trust
Securities Certificates may be served. The Administrative Trustees initially
designate the Corporate Trust Office of the Property Trustee, Christiana Bank &
Trust Company, as the principal corporate trust office for such purposes. The
Administrative Trustees shall give prompt written notice to the Depositor and to
the Securityholders of any change in the location of the Securities Register or
any such office or agency.
Section 5.09. Appointment of the Paying Agent.
--------------------------------
The Paying Agent shall initially be the Property Trustee, and any
co-paying agent chosen by the Property Trustee acceptable to the Administrative
Trustees and the Depositor. The Paying Agent shall make Distributions to the
Securityholders from the Payment Account and shall report the amounts of such
Distributions to the Property Trustee and the Administrative Trustees. Any
Paying Agent shall have the revocable power to withdraw funds from the Payment
Account for the purpose of making the Distributions referred to above. The
Administrative Trustees may revoke such power and remove the Paying Agent if
such Trustees determine in their sole discretion that the Paying Agent shall
have failed to perform its obligations under this Trust Agreement in any
material respect. Any Person acting as Paying Agent shall be permitted to resign
as Paying Agent upon thirty (30) days' written notice to the Administrative
Trustees, the Property Trustee and the Depositor. 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 Administrative Trustees shall
appoint a successor (which shall be a bank or trust company) that is acceptable
to the Property Trustee and the Depositor to act as the Paying Agent. The
Administrative Trustees shall cause such successor Paying Agent or any
additional Paying Agent appointed by the Administrative Trustees to execute and
deliver to the Trustees an instrument in which such successor Paying Agent or
additional Paying Agent shall agree with the Trustees that as Paying Agent, such
successor Paying Agent or additional Paying Agent shall hold all sums, if
26
any, held by it for payment to the Securityholders in trust for the benefit of
the Securityholders entitled thereto until such sums shall be paid to such
Securityholders. 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 8.01, 8.03 and 8.06 shall apply to the Property Trustee also in its
role as the Paying Agent, for so long as the Property Trustee shall act as
Paying Agent and, to the extent applicable, to any other Paying Agent appointed
hereunder. Any reference in this Trust Agreement to the Paying Agent shall
include any co-paying agent unless the context requires otherwise.
Section 5.10. Ownership of the Common Securities by the Depositor.
----------------------------------------------------
On the Closing Date, the Depositor shall acquire and retain beneficial
and record ownership of the Common Securities. To the fullest extent permitted
by law, any attempted transfer of the Common Securities (other than a transfer
in connection with a merger or consolidation of the Depositor into another
corporation pursuant to Section 12.1 of the Indenture) shall be void. The
Administrative Trustees shall cause each Common Securities Certificate issued to
the Depositor to contain a legend stating "THIS CERTIFICATE IS NOT TRANSFERABLE
EXCEPT IN COMPLIANCE WITH SECTION 5.10 OF THE TRUST AGREEMENT".
Section 5.11. The Trust Securities Certificates.
----------------------------------
(a) Upon the issuance of the Preferred Securities
Certificates, the Trustees shall recognize the record holders of the Preferred
Securities Certificates as the Securityholders. The Preferred Securities
Certificates shall be issued in the form of one or more fully registered Global
Preferred Securities Certificates which will be deposited with or on behalf of
the Clearing Agency and registered in the name of the Clearing Agency's nominee.
Unless and until it is exchangeable in whole or in part for the Preferred
Securities in definitive form, a global security may not be transferred except
as a whole by the Clearing Agency to a nominee of the Clearing Agency or by a
nominee of the Clearing Agency to the Clearing Agency or another nominee of the
Clearing Agency or by the Clearing Agency or any such nominee to a successor of
such Clearing Agency or a nominee of such successor.
(b) 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 5.12. [Reserved].
-----------
Section 5.13. Notices.
--------
To the extent that a notice or other communication to the Holders is
required under this Trust Agreement, for so long as Preferred Securities are
represented by a Global Preferred Securities Certificate, the Trustees shall
give all such notices and communications specified herein to be given to the
Clearing Agency, and shall have no obligation to provide notice to the owners of
the beneficial interest in the Global Preferred Securities.
27
Section 5.14. Rights of the Securityholders.
------------------------------
(a) The legal title to the Trust Property is vested
exclusively in the Property Trustee (in its capacity as such) in accordance with
Section 2.09, and the Securityholders shall not have any right or title therein
other than the undivided beneficial interest in the assets of the Trust
conferred by their Trust Securities and they shall have no right to call for any
partition or division of property, profits or rights of the Trust except as
described below.
The Trust Securities shall be personal property giving only
the rights specifically set forth therein and in this Trust Agreement. The Trust
Securities shall have no preemptive or similar rights. When issued and delivered
to Holders of the Trust Securities against payment of the purchase price
therefor, the Trust Securities shall be fully paid and (with respect to the
Common Securities, subject to Section 4.08) nonassessable interests in the
Trust. The Holders of the Trust Securities, in their capacities as such, shall
be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware.
(b) For so long as any of the Preferred Securities remain
Outstanding, if, upon a Debenture Event of Default, the Debenture Trustee fails
or the holders of not less than twenty-five percent (25%) in principal amount of
the outstanding Debentures fail to declare the principal of all of the
Debentures to be immediately due and payable, the Holders of at least
twenty-five percent (25%) in Liquidation Amount of the Preferred Securities then
Outstanding shall have such right by a notice in writing to the Depositor and
the Debenture Trustee; and upon any such declaration such principal amount of
and the accrued interest on all of the Debentures shall become immediately due
and payable, provided that the payment of principal and interest on such
Debentures shall remain subordinated to the extent provided in the Indenture.
(c) For so long as any of the Preferred Securities remain
Outstanding, upon a Debenture Event of Default arising from the failure to pay
interest or principal on the Debentures, the Holders of any of the Preferred
Securities then Outstanding shall, to the fullest extent permitted by law, have
the right to directly institute proceedings for enforcement of payment to such
Holders of principal of or interest on the Debentures having a principal amount
equal to the Liquidation Amount of the Preferred Securities of such Holders.
ARTICLE VI
ACTS OF THE SECURITYHOLDERS; MEETINGS; VOTING
Section 6.01. Limitations on Voting Rights.
-----------------------------
(a) Except as provided in this Section 6.01, in Sections 5.14,
8.10 and 10.02 and in the Indenture and as otherwise set forth in the Guarantee
or required by law, no record Holder of Preferred Securities shall have any
right to vote or in any manner otherwise control the administration, operation
and management of the Trust or the obligations of the parties hereto; nor shall
anything herein set forth, or contained in the terms of the Trust Securities
Certificates,
28
be construed so as to constitute the Securityholders from time to time as
partners or members of an association.
(b) So long as any Debentures are held by the Property
Trustee, on behalf of the Trust, the Trustees shall not (i) direct the time,
method and place of conducting any proceeding for any remedy available to the
Debenture Trustee, or executing any trust or power conferred on the Debenture
Trustee with respect to such Debentures; (ii) waive any past default which is
waivable under Article VII of the Indenture; (iii) exercise any right to rescind
or annul a declaration that the principal of all the Debentures shall be due and
payable; or (iv) consent to any amendment, modification or termination of the
Indenture or the Debentures, where such consent shall be required, without, in
each case, obtaining the prior approval of the Holders of not less than a
majority in Liquidation Amount of all the Outstanding Preferred Securities;
provided, however, that where a consent under the Indenture would require the
consent of each holder of outstanding Debentures affected thereby, no such
consent shall be given by the Property Trustee without the prior written consent
of each holder of the Preferred Securities. The Trustees shall not revoke any
action previously authorized or approved by a vote of the Holders of the
Outstanding Preferred Securities, except when authorized by a subsequent vote of
the Holders of the Outstanding Preferred Securities. The Property Trustee shall
notify each holder of the Outstanding Preferred Securities of any written notice
of default received from the Debenture Trustee with respect to the Debentures.
In addition to obtaining the foregoing approvals of the Holders of the Preferred
Securities, prior to taking any of the foregoing actions, the Trustees shall, at
the expense of the Depositor, obtain an Opinion of Counsel experienced in such
matters to the effect that the Trust shall continue to be classified as a
grantor trust and not as an association taxable as a corporation for United
States federal income tax purposes on account of such action.
(c) If any proposed amendment to the Trust Agreement provides
for, or the Trustees otherwise propose to effect, (i) any action that would
adversely affect in any material respect the powers, preferences or special
rights of the holders of the Preferred Securities, whether by way of amendment
to the Trust Agreement or otherwise; or (ii) the dissolution, winding-up or
termination of the Trust, other than pursuant to the terms of this Trust
Agreement, then the Holders of the Outstanding Preferred Securities as a class
shall 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 Outstanding Preferred Securities.
No amendment to this Trust Agreement may be made if, as a result of such
amendment, the Trust would cease to be classified as a grantor trust or would be
classified as an association taxable as a corporation for United States federal
income tax purposes.
Section 6.02. Notice of Meetings.
-------------------
Notice of all meetings of the Preferred Securityholders, stating the
time, place and purpose of the meeting, shall be given by the Property Trustee
pursuant to Section 10.08 to each Preferred Securityholder of record, at his or
her registered address, at least fifteen (15) days and not more than ninety (90)
days before the meeting. At any such meeting, any business properly
29
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 6.03. Meetings of the Preferred Securityholders.
------------------------------------------
(a) No annual meeting of the Securityholders is required to be
held. The Administrative Trustees, however, shall call a meeting of the
Securityholders to vote on any matter in respect of which the Preferred
Securityholders are entitled to vote upon the written request of the Preferred
Securityholders of twenty-five percent (25%) of the Outstanding Preferred
Securities (based upon their aggregate Liquidation Amount) and the
Administrative Trustees or the Property Trustee may, at any time in their
discretion, call a meeting of the Preferred Securityholders to vote on any
matters as to which the Preferred Securityholders are entitled to vote.
(b) The Preferred Securityholders of record of fifty percent
(50%) of the Outstanding Preferred Securities (based upon their aggregate
Liquidation Amount), present in person or by proxy, shall constitute a quorum at
any meeting of the Securityholders.
(c) If a quorum is present at a meeting, an affirmative vote
by the Preferred Securityholders of record present, in person or by proxy,
holding more than a majority of the Preferred Securities (based upon their
aggregate Liquidation Amount) held by the Preferred Securityholders of record
present, either in person or by proxy, at such meeting shall constitute the
action of the Securityholders, unless this Trust Agreement requires a greater
number of affirmative votes.
Section 6.04. Voting Rights.
--------------
The Securityholders shall be entitled to one vote for each dollar value
of Liquidation Amount represented by their Trust Securities (with any fractional
multiple thereof rounded up or down as the case may be to the closest integral
multiple) in respect of any matter as to which such Securityholders are entitled
to vote (and such dollar value shall be $25 per Preferred Security until such
time, if any, as the Liquidation Amount is changed as provided herein).
Section 6.05. Proxies, Etc.
-------------
At any meeting of the Securityholders, any Securityholder entitled to
vote thereat may vote by proxy, provided that no proxy shall be voted at any
meeting unless it shall have been placed on file with the Administrative
Trustees, or with such other officer or agent of the Trust as the Administrative
Trustees may direct, for verification prior to the time at which such vote shall
be taken. Only Holders 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 Securityholder shall be deemed valid unless challenged at
or prior to its exercise,
30
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 6.06. Securityholder Action by Written Consent.
-----------------------------------------
Any action which may be taken by the Securityholders at a meeting may
be taken without a meeting if the Securityholders holding more than a majority
of all of the Outstanding Trust Securities (based upon their aggregate
Liquidation Amount) entitled to vote in respect of such action (or such larger
proportion thereof as shall be required by any express provision of this Trust
Agreement) shall consent to the action in writing.
Section 6.07. Record Date for Voting and Other Purposes.
------------------------------------------
For the purposes of determining the Securityholders 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 Administrative Trustees or the Property Trustee may from time
to time fix a date, not more than 90 days prior to the date of any meeting of
the Securityholders or the payment of Distribution or other action, as the case
may be, as a record date for the determination of the identity of the
Securityholders of record for such purposes.
Section 6.08. Acts of the Securityholders.
----------------------------
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Trust Agreement to
be given, made or taken by the Securityholders may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed by such
Securityholders 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 an Administrative Trustee. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Securityholders
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 8.01) conclusive in
favor of the Trustees, if made in the manner provided in this Section 6.08.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him or her the execution thereof.
Where such execution is by a signer acting in a capacity other than his or her
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his or her 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 Trustee receiving the
same deems sufficient.
31
(c) The ownership of the Preferred Securities shall be proved
by the Securities Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Securityholder of any Trust Security shall
bind every future Securityholder of the same Trust Security and the
Securityholder of every Trust Security issued upon the registration of transfer
thereof or in exchange therefor or in lieu thereof in respect of anything done,
omitted or suffered to be done by the Trustees or the Trust in reliance thereon,
whether or not notation of such action is made upon such Trust Security.
(e) Without limiting the foregoing, a Securityholder entitled
hereunder to take any action hereunder with regard to any particular Trust
Security may do so with regard to all or any part of the Liquidation Amount of
such Trust Security or by one or more duly appointed agents each of which may do
so pursuant to such appointment with regard to all or any part of such
Liquidation Amount.
(f) A Securityholder may institute a legal proceeding directly
against the Depositor under the Guarantee to enforce its rights under the
Guarantee without first instituting a legal proceeding against the Guarantee
Trustee (as defined in the Guarantee), the Trust or any Person.
Section 609. Inspection of Records. Upon reasonable notice to the
Administrative Trustees and the Property Trustee, the records of the Trust shall
be open to inspection at the principal executive office of the Trust (as set
forth in Section 2.02) to Holders of the Trust Securities during normal business
hours for any purpose reasonably related to such Securityholder's interest as a
Securityholder.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
Section 7.01. Representations and Warranties of the Bank and the
--------------------------------------------------
Property Trustee.
-----------------
The Bank and the Property Trustee, each severally on behalf of and as
to itself, as of the date hereof, and each successor Property Trustee at the
time of the successor Property Trustee's acceptance of its appointment as
Property Trustee hereunder (in the case of a successor Property Trustee, the
term "Bank" as used herein shall be deemed to refer to such successor Property
Trustee in its separate corporate capacity) hereby represents and warrants (as
applicable) for the benefit of the Depositor and the Securityholders that:
(a) the Bank is a Delaware banking corporation duly organized,
validly existing and in good standing under the laws of its jurisdiction of
incorporation;
32
(b) the Bank has full corporate power, authority and legal
right to execute, deliver and perform its obligations under this Trust Agreement
and has taken all necessary action to authorize the execution, delivery and
performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed
and delivered by the Property Trustee and constitutes the valid and legally
binding agreement of the Property Trustee enforceable against it in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles;
(d) the Property Trustee is a Person eligible pursuant to the
Trust Indenture Act to act as such and has a combined capital and surplus of at
least $5 million.
Section 7.02. Representations and Warranties of the Delaware Bank and
-------------------------------------------------------
the Delaware Trustee.
---------------------
The Delaware Bank and the Delaware Trustee, each severally on behalf of
and as to itself, as of the date hereof, and each successor Delaware Trustee at
the time of the successor Delaware Trustee's acceptance of appointment as
Delaware Trustee hereunder (the term "Delaware Bank" being used to refer to such
successor Delaware Trustee in its separate corporate capacity), hereby
represents and warrants (as applicable) for the benefit of the Depositor and the
Securityholders that:
(a) the Delaware Bank is a Delaware Banking corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware;
(b) the Delaware Bank has full corporate power, authority and
legal right to execute, deliver and perform its obligations under this Trust
Agreement and has taken all necessary action to authorize the execution,
delivery and performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed
and delivered by the Delaware Trustee and constitutes the valid and legally
binding agreement of the Delaware Trustee enforceable against it in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors, rights and to general equity principles;
(d) the execution, delivery and performance by the Delaware
Trustee of this Trust Agreement has been duly authorized by all necessary
corporate or other action on the part of the Delaware Trustee and does not
require any approval of stockholders of the Delaware Bank and such execution,
delivery and performance shall not (i) violate the Delaware Bank's articles of
organization, charter or by-laws; (ii) violate any provision of, or constitute,
with or without notice or lapse of time, a default under, or result in the
creation or imposition of, any Lien on any properties included in the Trust
Property pursuant to the provisions of, any indenture, mortgage, credit
agreement, license or other agreement or instrument to which the Delaware Bank
or the Delaware Trustee is a party or by which it is bound; or (iii) violate any
law, governmental rule or
33
regulation of the United States or the State of Delaware, as the case may be,
governing the trust powers of the Delaware Bank or the Delaware Trustee (as
appropriate in context) or any order, judgment or decree applicable to the
Delaware Bank or the Delaware Trustee;
(e) neither the authorization, execution or delivery by the
Delaware Trustee of this Trust Agreement nor the consummation of any of the
transactions by the Delaware Trustee contemplated herein or therein requires the
consent or approval of, the giving of notice to, the registration with or the
taking of any other action with respect to any governmental authority or agency
under any existing federal law governing the trust powers of the Delaware Bank
or the Delaware Trustee, as the case may be, under the laws of the United States
or the State of Delaware; and
(f) there are no proceedings pending or, to the best of the
Delaware Trustee's knowledge, threatened against or affecting the Delaware Bank
or the Delaware Trustee in any court or before any governmental authority,
agency or arbitration board or tribunal which, individually or in the aggregate,
would materially and adversely affect the Trust or would question the right,
power and authority of the Delaware Trustee to enter into or perform its
obligations as one of the Trustees under this Trust Agreement.
Section 7.03. Representations and Warranties of the Depositor.
------------------------------------------------
The Depositor hereby represents and warrants for the benefit of the
Securityholders that:
(a) the Trust Securities Certificates issued on the Closing
Date or the Option Closing Date, if applicable, on behalf of the Trust have been
duly authorized and, shall have been duly and validly executed, issued and
delivered by the Administrative Trustees pursuant to the terms and provisions
of, and in accordance with the requirements of, this Trust Agreement and the
Securityholders shall be, as of such date, entitled to the benefits of this
Trust Agreement; and
(b) there are no taxes, fees or other governmental charges
payable by the Trust (or the Trustees on behalf of the Trust) under the laws of
the State of Delaware or any political subdivision thereof in connection with
the execution, delivery and performance by the Bank, the Property Trustee or the
Delaware Trustee, as the case may be, of this Trust Agreement.
ARTICLE VIII
TRUSTEES
Section 8.01. Certain Duties and Responsibilities.
------------------------------------
(a) The duties and responsibilities of the Trustees shall be as
provided by this Trust Agreement and, in the case of the Property Trustee, by
the Trust Indenture Act. The Property Trustee undertakes to perform such duties
and only such duties as are specifically set forth in this Trust Agreement. The
Property Trustee shall not have any duties or responsibilities except those
expressly set forth in this Trust Agreement or be a trustee for or have any
fiduciary obligation to
34
any party hereto. Notwithstanding the foregoing, no provision of this Trust
Agreement shall require the Trustees 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. No Administrative Trustee nor the Delaware Trustee shall be liable for its
act or omissions hereunder except as a result of its own gross negligence or
willful misconduct. The Property Trustee's liability shall be determined under
the Trust Indenture Act. Whether or not therein expressly so provided, every
provision of this Trust Agreement relating to the conduct or affecting the
liability of or affording protection to the Trustees shall be subject to the
provisions of this Section 8.01. To the extent that, at law or in equity, the
Delaware Trustee or an Administrative Trustee has duties (including fiduciary
duties) and liabilities relating thereto to the Trust or to the Securityholders,
the Delaware Trustee or such Administrative Trustee shall not be liable to the
Trust or to any Securityholder for such Trustee'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 Delaware Trustee
or the Administrative Trustees otherwise existing at law or in equity, are
agreed by the Depositor and the Securityholders to replace such other duties and
liabilities of the Delaware Trustee and the Administrative Trustees, as the case
may be.
(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
Securityholder, by its acceptance of a Trust Security, agrees that it shall look
solely to the revenue and proceeds from the Trust Property to the extent legally
available for distribution to it as herein provided and that the Trustees are
not personally liable to it for any amount distributable in respect of any Trust
Security or for any other liability in respect of any Trust Security. This
Section 8.01(b) does not limit the liability of the Trustees expressly set forth
elsewhere in this Trust Agreement or, in the case of the Property Trustee, in
the Trust Indenture Act.
(c) 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) 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;
(ii) the Property Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of not less than a majority in Liquidation Amount
of the Trust Securities relating to the time, method and place of conducting any
proceeding for any remedy available to the Property
35
Trustee, or exercising any trust or power conferred upon the Property Trustee
under this Trust Agreement;
(iii) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Debentures and the
Payment Account shall be to deal with such property in a similar manner as the
Property Trustee deals with similar property for its own account, subject to the
protections and limitations on liability afforded to the Property Trustee under
this Trust Agreement and the Trust Indenture Act;
(iv) the Property Trustee shall not be liable for any interest
on any money received by it except as it may otherwise agree in writing with the
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 3.01 and except to the extent otherwise
required by law; and
(v) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrative Trustees or the Depositor with
respect to their duties under this Trust Agreement, nor shall the Property
Trustee be liable for the negligence, default or misconduct of the
Administrative Trustees or the Depositor.
Section 8.02. Certain Notices.
----------------
(a) Within five (5) Business Days after the occurrence of any
Event of Default actually known to the Property Trustee, the Property Trustee
shall transmit, in the manner and to the extent provided in Section 10.08,
notice of such Event of Default to the Securityholders, the Administrative
Trustees and the Depositor, unless such Event of Default shall have been cured
or waived. For purposes of this Section 8.02, the term "Event of Default" means
any event that is, or after notice or lapse of time or both would become, an
Event of Default. The Property Trustee shall not be charged with actual
knowledge of any Event of Default unless either (1) a Responsible Officer of the
Property Trustee shall have actual knowledge or (2) the Property Trustee shall
have received written notice thereof from the Depositor or a Holder.
(b) The Administrative Trustees shall transmit to the
Securityholders in the manner and to the extent provided in Section 10.08 notice
of the Depositor's election to begin or further extend an Extended Interest
Period on the Debentures (unless such election shall have been revoked), and of
any election by the Depositor to accelerate the Maturity Date of the Debentures
within the time specified for transmitting such notice to the holders of the
Debentures pursuant to the Indenture as originally executed.
(c) In the event the Property Trustee receives notice of the
Depositor's exercise of its rights to shorten the stated maturity of the
Debentures as provided in the Indenture, the Property Trustee shall give notice
of such shortening of the stated maturity to the Holders at least 30 but not
more than 60 days before the effective date thereof.
36
Section 8.03. Certain Rights of the Property Trustee.
---------------------------------------
Subject to the provisions of Section 8.01:
(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) if (i) in performing its duties under this Trust Agreement
the Property Trustee is required to decide between alternative courses of
action; or (ii) in construing any of the provisions of this Trust Agreement, the
Property Trustee finds the same ambiguous or inconsistent with other provisions
contained herein; or (iii) the Property Trustee is unsure of the application of
any provision of this Trust Agreement, then, except as to any matter as to which
the Preferred Securityholders are entitled to vote under the terms of this Trust
Agreement, the Property Trustee shall deliver a notice to the Depositor
requesting written instructions of the Depositor as to the course of action to
be taken and the Property Trustee shall take such action, or refrain from taking
such action, as the Property Trustee shall be instructed in writing to take, or
to refrain from taking, by the Depositor; provided, however, that if the
Property Trustee does not receive such instructions of the Depositor within ten
(10) Business Days after it has delivered such notice, or such reasonably
shorter period of time set forth in such notice (which to the extent practicable
shall not be less than two (2) Business Days), it may, but shall be under no
duty to, take or refrain from taking such action not inconsistent with this
Trust Agreement as it shall deem advisable and in the best interests of the
Securityholders, in which event the Property Trustee shall have no liability
except for its own bad faith, negligence or willful misconduct;
(c) any direction or act of the Depositor or the
Administrative Trustees contemplated by this Trust Agreement shall be
sufficiently evidenced by an Officers' Certificate;
(d) whenever in the administration of this Trust Agreement,
the Property Trustee shall deem it desirable that a matter be proved or
established before undertaking, suffering or omitting any action hereunder, the
Property Trustee (unless other evidence is herein specifically prescribed) may,
in the absence of bad faith on its part, request and conclusively rely upon an
Officers' Certificate which, upon receipt of such request, shall be promptly
delivered by the Depositor or the Administrative Trustees;
(e) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any financing or
continuation statement or, except as provided in Section 4.05, any filing under
tax or securities laws or any filing under tax or securities laws) or any
re-recording, refiling or reregistration thereof;
37
(f) the Property Trustee may consult with counsel of its
choice (which counsel may be counsel to the Depositor or any of its Affiliates)
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, such
counsel may be counsel to the Depositor or any of its Affiliates, and may
include any of its employees; the Property Trustee shall have the right at any
time to seek instructions concerning the administration of this Trust Agreement
from any court of competent jurisdiction;
(g) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Trust Agreement at the
request, order or direction of any of the Securityholders, pursuant to this
Trust Agreement, unless such Securityholders shall have offered to the Property
Trustee reasonable security or indemnity satisfactory to it against the costs,
expenses and liabilities that might be incurred by it in compliance with such
request, order or direction; nothing contained herein shall, however, relieve
the Property Trustee of the obligation, upon the occurrence of an Event of
Default (that has not been cured or waived) to exercise such of the rights and
powers vested in it by this Trust Agreement, and to use the same degree of care
and skill in their exercise as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs;
(h) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order,
approval, bond, debenture, note or other evidence of indebtedness or other paper
or document, unless requested in writing to do so by the Holders of not less
than a majority in Liquidation Amount of the Outstanding Preferred Securities,
but the Property Trustee may make such further inquiry or investigation into
such facts or matters as it may see fit;
(i) the Property Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through its agents, attorneys, custodians or nominees and, subject to Section
8.01, the Property Trustee shall not be responsible for any misconduct or
negligence on the part of any agent, attorney, custodian or nominee appointed
with due care by it hereunder;
(j) whenever in the administration of this Trust Agreement the
Property Trustee shall deem it desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action hereunder the Property
Trustee (i) may request instructions from the Holders of the Trust Securities
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 protected in acting in accordance with such instructions; and
(k) except as otherwise expressly provided by this Trust
Agreement, the Property Trustee shall not be under any obligation to take any
action that is discretionary under the provisions of this Trust Agreement. No
provision of this Trust Agreement shall be deemed to impose any duty or
obligation on the Property Trustee to perform any act or acts or exercise any
38
right, power, duty or obligation conferred or imposed on it, in any jurisdiction
in which it shall be illegal, or in which the Property Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts, or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Property Trustee shall be
construed to be a duty.
Section 8.04. 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 Trust, and the Trustees do not assume
any responsibility for their correctness. The Trustees shall not be accountable
for the use or application by the Depositor of the proceeds of the Debentures.
Section 8.05. May Hold Securities.
--------------------
Any Trustee or any other agent of any Trustee or the Trust, in its
individual or any other capacity, may become the owner or pledgee of the Trust
Securities and, subject to Sections 8.08 and 8.13 and except as provided in the
definition of the term "Outstanding" in Article I, may otherwise deal with the
Trust with the same rights it would have if it were not a Trustee or such other
agent.
Section 8.06. Compensation; Indemnity; Fees.
------------------------------
The Depositor agrees:
(a) to pay to the 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, in the case of the Property Trustee as set forth in
a written agreement between the Depositor and the Property Trustee);
(b) except as otherwise expressly provided herein, to
reimburse the Trustees upon request for all reasonable expenses, disbursements
and advances incurred or made by the Trustees in accordance with any provision
of this Trust Agreement (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to such Trustee's negligence, bad
faith or willful misconduct (or, in the case of the Administrative Trustees or
the Delaware Trustee, any such expense, disbursement or advance as may be
attributable to its, his or her gross negligence, bad faith or willful
misconduct); and
(c) to indemnify each of the Trustees and its officers,
directors, employees and agents or any predecessor Trustee for, and to hold the
Trustees harmless against, any loss, damage, claims, liability, penalty or
expense (including attorney's fees and expenses) incurred without negligence,
bad faith or willful misconduct on its part, arising out of or in connection
with the acceptance or administration of this Trust Agreement, including the
costs and expenses of defending itself against any claim or liability in
connection with the exercise or performance of
39
any of its powers or duties hereunder, except any such expense, disbursement or
advance as may be attributable to such Trustee's negligence, bad faith or
willful misconduct (or, in the case of the Administrative Trustees or the
Delaware Trustee, any such expense, disbursement or advance as may be
attributable to its, his or her gross negligence, bad faith or willful
misconduct). No Trustee may claim any Lien or charge on any Trust Property as a
result of any amount due pursuant to this Section 8.06.
This Section 8.06 shall survive the termination of this Trust Agreement
or the earlier resignation or removal of the Trustees.
Section 8.07. Corporate Property Trustee Required; Eligibility of
---------------------------------------------------
Trustees.
---------
(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 eligible pursuant to the Trust Indenture Act to act as such and has a
combined capital and surplus of at least $5 million. If any such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then for the purposes of
this Section 8.07, 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 8.07, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article VIII. The Property
Trustee and the Delaware Trustee may, but need not be, the same person.
(b) There shall at all times be one or more Administrative
Trustees hereunder with respect to the Trust Securities. Each Administrative
Trustee shall be either a natural person who is at least 21 years of age or a
legal entity that shall act through one or more persons authorized to bind that
entity.
(c) There shall at all times be a Delaware Trustee with
respect to the Trust Securities. The Delaware Trustee shall either be (i) a
natural person who is at least 21 years of age and a resident of the State of
Delaware; or (ii) a legal entity 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 8.08. 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.
40
Section 8.09. Co-Trustees and Separate Trustee.
---------------------------------
(a) Unless a Debenture 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 Depositor shall have power
to appoint, and upon the written request of the Property Trustee, the Depositor
shall for such purpose join with the Property Trustee in the execution, delivery
and performance of all instruments and agreements necessary or proper to
appoint, one or more Persons approved by the Property Trustee either to act as
co-trustee, jointly with the Property Trustee, of all or any part of such Trust
Property, or to the extent required by law to act as separate trustee of any
such property, in either case with such powers as may be provided in the
instrument of appointment, and to vest in such Person or Persons in the capacity
aforesaid, any property, title, right or power deemed necessary or desirable,
subject to the other provisions of this Section 8.09. If the Depositor does not
join in such appointment within 15 days after the receipt by it of a request so
to do, or in case a Debenture Event of Default has occurred and is continuing,
the Property Trustee alone shall have power to make such appointment. Any
co-trustee or separate trustee appointed pursuant to this Section 8.09 shall
either be (i) a natural person who is at least 21 years of age and a resident of
the United States; or (ii) a legal entity with its principal place of business
in the United States that shall act through one or more persons authorized to
bind such entity.
(b) Should any written instrument from the Depositor be
required by any co-trustee or separate trustee so appointed for more fully
confirming to such co-trustee or separate trustee such property, title, right,
or power, any and all such instruments shall, on request, be executed,
acknowledged, and delivered by the Depositor.
(c) Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject to the following
terms, namely:
(i) The Trust Securities shall be executed and delivered
and all rights, powers, duties and obligations hereunder in respect of the
custody of securities, cash and other personal property held by, or required to
be deposited or pledged with, the Trustees specified hereunder, shall be
exercised, solely by such Trustees and not by such co-trustee or separate
trustee.
(ii) The rights, powers, duties and obligations hereby
conferred or imposed upon the Property Trustee in respect of any property
covered by such appointment shall be conferred or imposed upon and exercised or
performed by the Property Trustee or 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.
41
(iii) The Property Trustee at any time, by an instrument
in writing executed by it, with the written concurrence of the Depositor, may
accept the resignation of or remove any co-trustee or separate trustee appointed
under this Section 8.09, and, in case a Debenture Event of Default has occurred
and is continuing, the Property Trustee shall have the 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 8.09.
(iv) No co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the Property Trustee or
any other trustee hereunder.
(v) The Property Trustee shall not be liable by reason of
any act of a co-trustee or separate trustee.
(vi) Any Act of the Holders delivered to the Property
Trustee shall be deemed to have been delivered to each such co-trustee and
separate trustee.
Section 8.10. Resignation and Removal; Appointment of Successor.
--------------------------------------------------
(a) No resignation or removal of any Trustee (the "Relevant
Trustee") and no appointment of a successor Trustee pursuant to this Article
VIII shall become effective until the acceptance of appointment by the successor
Trustee in accordance with the applicable requirements of Section 8.11.
(b) Subject to the immediately preceding paragraph, the
Relevant Trustee may resign at any time with respect to the Trust Securities by
giving written notice thereof to the Securityholders. If the instrument of
acceptance by the successor Trustee required by Section 8.11 shall not have been
delivered to the Relevant Trustee within thirty (30) days after the giving of
such notice of resignation, the Relevant Trustee may petition, at the expense of
the Depositor, any court of competent jurisdiction for the appointment of a
successor Relevant Trustee with respect to the Trust Securities.
(c) Unless a Debenture Event of Default shall have occurred
and be continuing, any Trustee may be removed at any time by an Act of the
Common Securityholder. If a Debenture Event of Default shall have occurred and
be continuing, the Property Trustee or the Delaware Trustee, or both of them,
may be removed at such time by an Act of the Holders of not less than a majority
in Liquidation Amount of the Preferred Securities, delivered to the Relevant
Trustee (in its individual capacity and on behalf of the Trust). An
Administrative Trustee may be removed by the Common Securityholder at any time.
(d) If any Trustee shall resign, be removed or become
incapable of acting as Trustee, or if a vacancy shall occur in the office of any
Trustee for any cause, at a time when no
42
Debenture Event of Default shall have occurred and be continuing, the Common
Securityholder, by an Act of the Common Securityholder delivered to the retiring
Trustee, shall promptly appoint a successor Trustee or Trustees with respect to
the Trust Securities and the Trust and the successor Trustee shall comply with
the applicable requirements of Section 8.11. If the Property Trustee or the
Delaware Trustee shall resign, be removed or become incapable of continuing to
act as the Property Trustee or the Delaware Trustee, as the case may be, at a
time when a Debenture Event of Default shall have occurred and is continuing,
the Preferred Securityholders, by an Act of the Securityholders of not less than
a majority in Liquidation Amount of the Preferred Securities then Outstanding
delivered to the retiring Relevant Trustee, shall promptly appoint a successor
Relevant Trustee or Trustees with respect to the Trust Securities and the Trust,
and such successor Trustee shall comply with the applicable requirements of
Section 8.11. If an Administrative Trustee shall resign, be removed or become
incapable of acting as an Administrative Trustee, at a time when a Debenture
Event of Default shall have occurred and be continuing, the Common
Securityholder, by an Act of the Common Securityholder delivered to an
Administrative Trustee, shall promptly appoint a successor Administrative
Trustee or Administrative Trustees with respect to the Trust Securities and the
Trust, and such successor Administrative Trustee or Administrative Trustees
shall comply with the applicable requirements of Section 8.11. If no successor
Relevant Trustee with respect to the Trust Securities shall have been so
appointed by the Common Securityholder or the Preferred Securityholders and
accepted appointment in the manner required by Section 8.11, any Securityholder
who has been a Securityholder of Trust Securities for six consecutive months on
behalf of himself or herself and all others similarly situated may petition a
court of competent jurisdiction for the appointment of a successor Relevant
Trustee with respect to the Trust Securities.
(e) The Property Trustee shall give notice of each resignation
and each removal of a Trustee and each appointment of a successor Trustee to all
the Securityholders in the manner provided in Section 10.08 and shall give
notice to the Depositor. Each notice shall include the name of the successor
Relevant Trustee and the address of its Corporate Trust Office if it is the
Property Trustee.
(f) Notwithstanding the foregoing or any other provision of
this Trust Agreement, in the event any Administrative Trustee or a Delaware
Trustee who is a natural person dies or becomes, in the opinion of the
Depositor, incompetent or incapacitated, the vacancy created by such death,
incompetence or incapacity may be filled by (a) the unanimous act of the
remaining Administrative Trustees if there are at least two of them; or (b)
otherwise by the Depositor (with the successor in each case being a Person who
satisfies the eligibility requirement for Administrative Trustees set forth in
Section 8.07).
Section 8.11. Acceptance of Appointment by Successor.
---------------------------------------
(a) In case of the appointment hereunder of a successor
Relevant Trustee with respect to the Trust Securities and the Trust, the
retiring Relevant Trustee and each successor Relevant Trustee with respect to
the Trust Securities shall execute and deliver an instrument hereto wherein each
successor Relevant Trustee shall accept such appointment and which shall contain
such provisions as shall be necessary or desirable to transfer and confirm to,
and to vest in, each
43
successor Relevant Trustee all the rights, powers, trusts and duties of the
retiring Relevant Trustee with respect to the Trust Securities and the Trust and
upon the execution and delivery of such instrument the resignation or removal of
the retiring Relevant Trustee shall become effective to the extent provided
therein and each such successor 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 with respect to the Trust Securities and
the Trust; but, on request of the Trust or any successor Relevant Trustee such
retiring Relevant Trustee shall duly assign, transfer and deliver to such
successor Relevant Trustee all the Trust Property, all proceeds thereof and
money held by such retiring Relevant Trustee hereunder with respect to the Trust
Securities and the Trust.
(b) Upon request of any such successor Relevant Trustee, the
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 immediately preceding paragraph, as the case may be.
(c) 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.
---------
Any Person into which the Property Trustee, the Delaware Trustee or any
Administrative 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
corporation succeeding to all or substantially all the corporate trust business
of such Relevant Trustee, shall be the successor of such Relevant Trustee
hereunder, provided 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 the Depositor
-------------------------------------------------------
or the Trust.
-------------
If and when the Property Trustee or the Delaware Trustee shall be or
become a creditor of the Depositor or the Trust (or any other obligor upon the
Debentures or the Trust Securities), the Property Trustee or the Delaware
Trustee, as the case may be, shall be subject to and shall take all actions
necessary in order to comply with the provisions of the Trust Indenture Act
regarding the collection of claims against the Depositor or the Trust (or any
such other obligor).
Section 8.13A. 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 Trust or any other obligor upon the Trust Securities
or the property of the 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
44
demand on the Trust for the payment of any past due Distributions) shall be
entitled and empowered, to the fullest extent permitted by law, by intervention
in such proceeding or otherwise:
(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
Securityholder 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 Securityholders, to pay to the Property Trustee any amount due it for the
reasonable compensation, expenses, disbursements and advances of the Property
Trustee, its agents and counsel and any other amounts due the Property Trustee.
Nothing herein contained shall be deemed to authorize the Property
Trustee to authorize or consent to or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
compensation affecting the Trust Securities or the rights of any Securityholder
thereof or to authorize the Property Trustee to vote in respect of the claim of
any Holder in any such proceeding.
Section 8.14. Reports by the Property Trustee.
--------------------------------
(a) The Property Trustee shall transmit to the Securityholders
on or before April 30 in each year, commencing April 30, 2003, such reports
concerning the Property Trustee, its actions under this Trust Agreement and the
property and funds in its possession in its capacity as the Property Trustee as
may be required pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant thereto.
(b) A copy of each such report shall, at the time of such
transmission to the Holders, be filed by the Property Trustee with the Nasdaq
National Market, and each national securities exchange or other organization
upon which the Trust Securities are listed, and also with the Commission and the
Depositor.
Section 8.15. Reports to the Property Trustee.
--------------------------------
The Depositor and the Administrative Trustees on behalf of the Trust
shall provide to the Property Trustee such documents, reports and information as
required by Section 314 of the Trust Indenture Act (if any) and the compliance
certificate required by Section 314(a) of the Trust Indenture Act in the form,
in the manner and at the times required by Section 314 of the Trust Indenture
Act. The Depositor and the Administrative Trustees shall annually file with the
45
Property Trustee a certificate specifying whether such Person is in compliance
with all of the terms and covenants applicable to such Person hereunder.
Section 8.16. Evidence of Compliance with Conditions Precedent.
-------------------------------------------------
Each of the Depositor and the Administrative Trustees on behalf of the
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 pursuant to
Section 314(c)(1) of the Trust Indenture Act shall be given in the form of an
Officers' Certificate.
Section 8.17. Number of Trustees.
-------------------
(a) The number of Trustees shall be four, provided that the
Holder of all of the Common Securities by written instrument may increase or
decrease the number of the Administrative Trustees. The Property Trustee and the
Delaware Trustee may be the same Person.
(b) If a Trustee ceases to hold office for any reason and the
number of the Administrative Trustees is not reduced pursuant to Section
8.17(a), or if the number of the Trustees is increased pursuant to Section
8.17(a), a vacancy shall occur. The vacancy shall be filled with a Trustee
appointed in accordance with Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not operate
to annul the Trust. Whenever a vacancy in the number of the Administrative
Trustees shall occur, until such vacancy is filled by the appointment of an
Administrative Trustee in accordance with Section 8.10, the Administrative
Trustees in office, regardless of their number (and notwithstanding any other
provision of this Agreement), shall have all the powers granted to the
Administrative Trustees and shall discharge all the duties imposed upon the
Administrative Trustees by this Trust Agreement.
Section 8.18. Delegation of Power.
--------------------
(a) Any Administrative Trustee 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 2.07(a); and
(b) The Administrative Trustees shall have power to delegate
from time to time to such of their number or to the Depositor the doing of such
things and the execution of such instruments either in the name of the Trust or
the names of the Administrative Trustees or otherwise as the Administrative
Trustees may deem expedient, to the extent such delegation is not prohibited by
applicable law or contrary to the provisions of the Trust, as set forth herein.
46
Section 8.19. Voting.
-------
Except as otherwise provided in this Trust Agreement, the consent or
approval of the Administrative Trustees shall require consent or approval by not
less than a majority of the Administrative Trustees, unless there are only two,
in which case both must consent.
ARTICLE IX
DISSOLUTION, LIQUIDATION AND MERGER
Section 9.01. Dissolution Upon Expiration Date.
---------------------------------
Unless earlier dissolved, the Trust shall automatically dissolve on
August __, 2032 (the "Expiration Date") subject to distribution of the Trust
Property in accordance with Section 9.04.
Section 9.02. Early Termination.
------------------
The first to occur of any of the following events is an "Early
Termination Event":
(a) the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation of, the Depositor;
(b) delivery of written direction to the Property Trustee by
the Depositor at any time (which direction is wholly optional and within the
discretion of the Depositor, subject to Depositor having received prior approval
of the Board of Governors of the Federal Reserve System if so required under
applicable guidelines, policies or regulations thereof) to dissolve the Trust
and distribute the Debentures to the Securityholders in exchange for the
Preferred Securities in accordance with Section 9.04;
(c) the redemption of all of the Preferred Securities in
connection with the redemption of all of the Debentures (whether upon a
Debenture Redemption Date or the maturity of the Debentures); and
(d) the entrance of an order for dissolution of the Trust
shall have been entered by a court of competent jurisdiction.
Section 9.03. Termination.
------------
The respective obligations and responsibilities of the Trustees and the
Trust created and continued hereby shall terminate upon the latest to occur of
the following: (a) the distribution by the Property Trustee to the
Securityholders upon the liquidation of the Trust pursuant to Section 9.04, or
upon the redemption of all of the Trust Securities pursuant to Section 4.02, of
all amounts required to be distributed hereunder upon the final payment of the
Trust Securities; (b) the payment of any expenses owed by the Trust; (c) the
discharge of all administrative duties of the Administrative Trustees, including
the performance of any tax reporting obligations with
47
respect to the Trust or the Securityholders; and (d) the filing of a Certificate
of Cancellation by the Administrative Trustee under the Delaware Business Trust
Act.
Section 9.04. Liquidation.
------------
(a) If an Early Termination Event specified in clause (a), (b), or (d)
of Section 9.02 occurs or upon the Expiration Date, the Trust shall be
liquidated by the Trustees as expeditiously as the Trustees determine to be
possible by distributing, after satisfaction of liabilities to creditors of the
Trust as provided by applicable law, to each Securityholder a Like Amount of
Debentures, subject to Section 9.04(d). Notice of liquidation shall be given by
the Property Trustee by first-class mail, postage prepaid, mailed not later than
thirty (30) nor more than sixty (60) days prior to the Liquidation Date to each
Holder of Trust Securities at such Holder's address appearing in the Securities
Register. All notices of liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date, the
Trust Securities shall no longer be deemed to be Outstanding and any Trust
Securities Certificates not surrendered for exchange shall be deemed to
represent a Like Amount of Debentures; and
(iii) provide such information with respect to the
mechanics by which the Holders may exchange the Trust Securities Certificates
for the Debentures, or, if Section 9.04(d) applies, receive a Liquidation
Distribution, as the Administrative Trustees or the Property Trustee shall deem
appropriate.
(b) Except where Section 9.02(c) or 9.04(d) applies, in order
to effect the liquidation of the Trust and distribution of the Debentures to the
Securityholders, the Property Trustee shall establish a record date for such
distribution (which shall be not more than 45 days prior to the Liquidation
Date) and, either itself acting as exchange agent or through the appointment of
a separate exchange agent, shall establish such procedures as it shall deem
appropriate to effect the distribution of Debentures in exchange for the
Outstanding Trust Securities Certificates.
(c) Except where Section 9.02(c) or 9.04(d) applies, after the
Liquidation Date, (i) the Trust Securities shall no longer be deemed to be
outstanding; (ii) certificates representing a Like Amount of the Debentures
shall be issued to the Holders of Trust Securities Certificates upon surrender
of such certificates to the Administrative Trustees or their agent for exchange;
(iii) the Depositor shall use its reasonable efforts to have the Debentures
included in the Nasdaq National Market or on such other securities exchange or
other organization as the Preferred Securities are then listed or traded; (iv)
any Trust Securities Certificates not so surrendered for exchange shall be
deemed to represent a Like Amount of Debentures, accruing interest at the rate
provided for in the Debentures from the last Distribution Date on which a
Distribution was made on such Trust Securities Certificates until such
certificates are so surrendered (and until such certificates are so surrendered,
no payments of interest or principal
48
shall be made to Holders of the Trust Securities Certificates with respect to
such Debentures); and (v) all rights of the Securityholders holding the Trust
Securities shall cease, except the right of such Securityholders to receive the
Debentures upon surrender of the Trust Securities Certificates.
(d) In the event that, notwithstanding the other provisions of
this Section 9.04, whether because of an order for dissolution entered by a
court of competent jurisdiction or otherwise, distribution of the Debentures in
the manner provided herein is determined by the Property Trustee not to be
practical, the Trust Property shall be liquidated, and the Trust shall be
dissolved, wound-up or terminated, by the Property Trustee in such manner as the
Property Trustee determines. In such event, on the date of the dissolution,
winding-up or other termination of the Trust, the Securityholders shall be
entitled to receive out of the assets of the Trust available for distribution to
the Securityholders, after satisfaction of liabilities to creditors of the Trust
as provided by applicable law, an amount equal to the Liquidation Amount per
Trust Security plus accumulated and unpaid Distributions thereon to the date of
payment (such amount being the "Liquidation Distribution"). If, upon any such
dissolution, winding-up or termination, the Liquidation Distribution can be paid
only in part because the Trust has insufficient assets available to pay in full
the aggregate Liquidation Distribution, then, subject to the next succeeding
sentence, the amounts payable by the Trust on the Trust Securities shall be paid
on a pro rata basis (based upon Liquidation Amounts, subject to Section 4.07).
The Holder of the Common Securities shall be entitled to receive the Liquidation
Distributions upon any such dissolution, winding-up or termination pro rata
(determined as aforesaid) with the Holders of the Preferred Securities, except
that, if a Debenture Event of Default has occurred and is continuing, the
Preferred Securities shall have a priority over the Common Securities.
Section 9.05. Mergers, Consolidations, Amalgamations or Replacements of
---------------------------------------------------------
the Trust.
----------
The Trust may not merge with or into, consolidate, amalgamate, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other Person, except pursuant
to this Section 9.05. At the request of the Depositor, with the consent of the
Administrative Trustees and without the consent of the Holders of the Preferred
Securities, the Property Trustee or the Delaware Trustee, the Trust may merge
with or into, consolidate, amalgamate, be replaced by or convey, transfer or
lease its properties and assets substantially as an entirety to a trust
organized as such under the laws of any State; provided, that (a) such successor
entity either (i) expressly assumes all of the obligations of the Trust with
respect to the Preferred Securities; or (ii) substitutes for the Preferred
Securities other securities having substantially the same terms as the Preferred
Securities (the "Successor Securities") so long as the Successor Securities rank
the same as the Preferred Securities rank in priority with respect to
distributions and payments upon liquidation, redemption and otherwise; (b) the
Depositor expressly appoints a trustee of such successor entity possessing
substantially the same powers and duties as the Property Trustee as the holder
of the Debentures; (c) the Successor Securities are listed or traded, or any
Successor Securities shall be listed or traded upon notification of issuance, on
any national securities exchange or other organization on which the Preferred
Securities are then listed, if any; (d) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not adversely
affect the rights, preferences and
49
privileges of the Holders of the Preferred Securities (including any Successor
Securities) in any material respect; (e) such successor entity has a purpose
substantially identical to that of the Trust; (f) prior to such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease, the
Depositor has received an Opinion of Counsel to the effect that (i) such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and privileges of the Holders of the
Preferred Securities (including any Successor Securities) in any material
respect; and (ii) following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, neither the Trust nor such successor
entity shall be required to register as an "investment company" under the
Investment Company Act; and (g) the Depositor owns all of the Common Securities
of such successor entity and guarantees the obligations of such successor entity
under the Successor Securities at least to the extent provided by the Guarantee,
the Debentures, this Trust Agreement and the Expense Agreement. For purposes of
this Section 9.05, any such consolidation, merger, sale, conveyance, transfer or
other disposition as a result of which (a) the Company is not the surviving
Person, and (b) the same Person is not both (i) the primary obligor in respect
of the Debentures and (ii) the Guarantor under the Guarantee, shall be deemed to
constitute a replacement of the Trust by a successor entity; provided further
that, notwithstanding the foregoing, in the event that upon the consummation of
such a consolidation, merger, sale, conveyance, transfer or other disposition,
the parent company (if any) of the Company, or its successor, is a bank holding
company or financial holding company or comparably regulated financial
institution, such parent company shall guarantee the obligations of the Trust
(and any successor thereto) under the Preferred Securities (including any
Successor Securities) at least to the extent provided by the Guarantee, the
Debentures, the Trust Agreement and the Expense Agreement. Notwithstanding the
foregoing, the Trust shall not, except with the consent of the Holders of 100%
in Liquidation Amount of the Preferred Securities, consolidate, amalgamate,
merge with or into, or be replaced by or convey, transfer or lease its
properties and assets substantially as an entirety to any other Person or permit
any other Person to consolidate, amalgamate, merge with or into, or replace it
if such consolidation, amalgamation, merger or replacement would cause the Trust
or the successor entity to be classified as other than a grantor trust for
United States federal income tax purposes.
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01. Limitation of Rights of the Securityholders.
--------------------------------------------
The death or incapacity of any Person having an interest, beneficial or
otherwise, in the Trust Securities shall not operate to terminate this Trust
Agreement, nor entitle the legal representatives or heirs of such Person or any
Securityholder 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.
50
Section 10.02. Amendment.
----------
(a) This Trust Agreement may be amended from time to time by
the Trustees and the Depositor, without the consent of any Securityholders, (i)
as provided in Section 8.11 with respect to acceptance of appointment by a
successor Trustee; (ii) to cure any ambiguity, correct or supplement any
provision herein or therein which may be inconsistent with any other provision
herein or therein, or to make any other provisions with respect to matters or
questions arising under this Trust Agreement, that shall not be inconsistent
with the other provisions of this Trust Agreement; (iii) to modify, eliminate or
add to any provisions of this Trust Agreement to such extent as shall be
necessary to ensure that the Trust shall be classified for United States federal
income tax purposes as a grantor trust at all times that any of the Trust
Securities are outstanding or to ensure that the Trust shall not be required to
register as an "investment company" under the Investment Company Act; or (iv) to
reduce or increase the Liquidation Amount per Trust Security and simultaneously
to correspondingly increase or decrease the number of Trust Securities issued
and Outstanding solely for the purpose of maintaining the eligibility of the
Preferred Securities for quotation or listing on any national securities
exchange or other organization on which the Preferred Securities are then
included, quoted or listed (including, if applicable, the Nasdaq National
Market); provided, however, that in the case of clause (ii), such action shall
not adversely affect in any material respect the interests of any
Securityholder, and provided further, that in the case of clause (iv) the
aggregate Liquidation Amount of the Trust Securities Outstanding upon completion
of any such reduction must be the same as the aggregate Liquidation Amount of
the Trust Securities outstanding immediately prior to such reduction or
increase, and any amendments of this Trust Agreement shall become effective when
notice thereof is given to the Securityholders (or, in the case of an amendment
pursuant to clause (iv), as of the date specified in the notice).
(b) Except as provided in Section 6.01(c) or Section 10.02(c)
hereof, any provision of this Trust Agreement may be amended by the Trustees and
the Depositor (i) with the consent of the Trust Securityholders representing not
less than a majority (based upon Liquidation Amounts) of the Trust Securities
then Outstanding; and (ii) upon receipt by the Trustees of an Opinion of Counsel
to the effect that such amendment or the exercise of any power granted to the
Trustees in accordance with such amendment shall not affect the Trust's status
as a grantor trust for United States federal income tax purposes or the 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 Securityholder (such
consent being obtained in accordance with Section 6.03 or 6.06 hereof), this
Trust Agreement may not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely affect the amount of
any Distribution required to be made in respect of the Trust Securities as of a
specified date; or (ii) restrict the right of a Securityholder to institute suit
or the enforcement of any such payment on or after such date; notwithstanding
any other provision herein, without the unanimous consent of the Securityholders
(such consent being obtained in accordance with Section 6.03 or 6.06 hereof),
this paragraph (c) of this Section 10.02 may not be amended.
51
(d) Notwithstanding any other provisions of this Trust
Agreement, no Trustee shall enter into or consent to any amendment to this Trust
Agreement which would cause the Trust to fail or cease to qualify for the
exemption from status of an "investment company" under the Investment Company
Act or to fail or cease to be classified as a grantor trust for United States
federal income tax purposes.
(e) Notwithstanding anything in this Trust Agreement to the
contrary, without the consent of the Depositor, this Trust Agreement may not be
amended in a manner which imposes any additional obligation on the Depositor.
(f) In the event that any amendment to this Trust Agreement is
made, the Administrative Trustees shall promptly provide to the Depositor a copy
of such amendment.
(g) Neither the Property Trustee nor the Delaware Trustee
shall be required to enter into any amendment to this Trust Agreement which
affects its own rights, duties or immunities under this Trust Agreement. The
Property Trustee shall be entitled to receive an Opinion of Counsel and an
Officers' Certificate stating that any amendment to this Trust Agreement has
been effected in compliance with this Trust Agreement.
Section 10.03. Separability.
-------------
In case any provision in this Trust Agreement or in the Trust
Securities Certificates shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 10.04. Governing Law.
--------------
THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE
SECURITYHOLDERS, THE TRUST AND THE TRUSTEES WITH RESPECT TO THIS TRUST AGREEMENT
AND THE TRUST SECURITIES SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAWS OF THE STATE OF DELAWARE (WITHOUT REGARD TO ITS CONFLICT OF LAWS
PRINCIPLES).
Section 10.05. 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 which 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 (and without any reduction of
interest or any other payment in respect of any such acceleration), in each case
with the same force and effect as though made on the date fixed for such
payment, and no distribution shall accumulate thereon for the period after such
date.
52
Section 10.06. Successors.
-----------
This Trust Agreement shall be binding upon and shall inure to the
benefit of any successor to the Depositor, the Trust or the Relevant Trustee(s),
including any successor by operation of law. Except in connection with a
consolidation, merger or sale involving the Depositor that is permitted under
Article XII 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 10.07. Headings. The Article and Section headings are for
convenience only and shall not affect the construction of this Trust Agreement.
Section 10.08. Reports, Notices and Demands.
-----------------------------
Any report, 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 any Securityholder 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 Preferred Securityholder, to such Preferred Securityholder as such
Securityholder's name and address may appear on the Securities Register; and (b)
in the case of the Common Securityholder or the Depositor, to National Penn
Bancshares, Inc., Pennsylvania and Xxxxxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxxxx
00000, Attention: Secretary, facsimile no.: (000) 000-0000. Any notice to the
Preferred Securityholders shall also be given to such owners as have, within two
years preceding the giving of such notice, filed their names and addresses with
the Property Trustee for that purpose. Such notice, demand or other
communication to or upon a Securityholder shall be deemed to have been
sufficiently given or made, for all purposes, upon hand delivery, mailing or
transmission.
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 Trust, the Property Trustee or the Administrative Trustees shall be given in
writing addressed (until another address is published by the Trust) as follows:
(a) with respect to the Property Trustee, to Christiana Bank & Trust Company,
0000 Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust
Administration; (b) with respect to the Delaware Trustee, to Christiana Bank &
Trust Company, 0000 Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention:
Corporate Trust Administration; and (c) with respect to the Administrative
Trustees, to them at the address above for notices to the Depositor, marked
"Attention: Administrative Trustees of NPB Capital Trust II, c/o National Penn
Bancshares, Inc." Such notice, demand or other communication to or upon the
Trust or the Property Trustee shall be deemed to have been sufficiently given or
made only upon actual receipt of the writing by the Trust or the Property
Trustee.
Section 10.09. Agreement Not to Petition.
--------------------------
Each of the Trustees and the Depositor agrees for the benefit of the
Securityholders that, until at least one year and one day after the Trust has
been terminated in accordance with Article
53
IX, they shall not file, or join in the filing of, a petition against the Trust
under any bankruptcy, insolvency, reorganization or other similar law
(including, without limitation, the United States Bankruptcy Code of 1978, as
amended) (collectively, "Bankruptcy Laws") or otherwise join in the commencement
of any proceeding against the Trust under any Bankruptcy Law. In the event the
Depositor or any of the Trustees takes action in violation of this Section
10.09, the Property Trustee agrees, for the benefit of the Securityholders, that
at the expense of the Depositor (which expense shall be paid prior to the
filing), it shall file an answer with the bankruptcy court or otherwise properly
contest the filing of such petition by the Depositor or such Trustee against the
Trust or the commencement of such action and raise the defense that the
Depositor or such Trustee has agreed in writing not to take such action and
should be stopped and precluded therefrom. The provisions of this Section 10.09
shall survive the termination of this Trust Agreement.
Section 10.10. Trust Indenture Act; Conflict with Trust Indenture Act.
-------------------------------------------------------
(a) This Trust Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Trust Agreement and shall, to
the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a trustee
for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Trust Agreement by any
of the provisions of the Trust Indenture Act, such required provision shall
control. If any provision of this Trust Agreement modifies or excludes any
provision of the Trust Indenture Act which may be so modified or excluded, the
latter provision shall be deemed to apply to this Trust Agreement as so modified
or to be excluded, as the case may be.
(d) The application of the Trust Indenture Act to this Trust Agreement
shall not affect the nature of the Trust Securities as equity securities
representing undivided beneficial interests in the assets of the Trust.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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Section 10.11. Acceptance of Terms of the Trust Agreement, the
-----------------------------------------------
Guarantee and the Indenture.
----------------------------
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN
BY OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY
SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL
ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN
SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT AND
AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE AND
THE INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST, SUCH
SECURITYHOLDER AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF THIS TRUST
AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND
SUCH SECURITYHOLDER AND SUCH OTHERS. WITHOUT LIMITING THE FOREGOING, BY
ACCEPTANCE OF A PREFERRED SECURITY, EACH HOLDER THEREOF SHALL BE DEEMED TO HAVE
AGREED TO TREAT, FOR ALL UNITED STATES FEDERAL INCOME TAX AND FINANCIAL
ACCOUNTING PURPOSES, THE DEBENTURES AS INDEBTEDNESS OF THE COMPANY AND THE
PREFERRED SECURITIES AS EVIDENCING AN UNDIVIDED BENEFICIAL OWNERSHIP INTEREST IN
THE DEBENTURES.
NATIONAL PENN BANCSHARES, INC.,
as Depositor
By:____________________________________
Name: Xxxxx X. Xxxxxxx
Title: Chairman, President and
Chief Executive Officer
CHRISTIANA BANK & TRUST COMPANY,
as Property Trustee
By:____________________________________
Name:__________________________________
Title:_________________________________
CHRISTIANA BANK & TRUST COMPANY,
as Delaware Trustee
By:____________________________________
Name:__________________________________
Title:_________________________________
[SIGNATURES CONTINUED ON NEXT PAGE]
55
ADMINISTRATIVE TRUSTEES
By:____________________________________
Name: Xxxxxx X. Xxxxx
Title: As Administrative Trustee
By:____________________________________
Name: Xxxx X. Xxxxxx
Title: As Administrative Trustee
56
Exhibit A
CERTIFICATE OF TRUST
OF
NPB CAPITAL TRUST II
THIS Certificate of Trust of NPB CAPITAL TRUST II (the "Trust") is
being duly executed and filed by the undersigned, as trustee, to form a business
trust under the Delaware Business Trust Act (12 Del. C. ss.3801 et seq.) (the
"Act").
1. Name. The name of the business trust formed by this Certificate of
Trust is NPB CAPITAL TRUST II.
2. Delaware Trustee. The name and business address of the trustee of
the Trust in the State of Delaware are Christiana Bank & Trust Company, 0000
Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attn: Corporate Trust Administration.
3. Effective Date. This Certificate of Trust shall be effective upon
filing with the Secretary of State.
IN WITNESS WHEREOF, the undersigned has duly executed this Certificate
of Trust in accordance with Section 3811(a)(1) of the Act.
CHRISTIANA BANK & TRUST
COMPANY, not in its individual
capacity but solely as Trustee
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Trust Officer
Exhibit B
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT
IN COMPLIANCE WITH
SECTION 5.10 OF THE TRUST AGREEMENT
Certificate Number Number of Common Securities
C-1 _________
Certificate Evidencing Common Securities
of
NPB Capital Trust II
_____% Common Securities
(liquidation amount $25 per Common Security)
NPB Capital Trust II, a statutory business trust created under the laws
of the State of Delaware (the "Issuer Trust"), hereby certifies that National
Penn Bancshares, Inc. (the "Holder") is the registered owner of
_________________________(__________) of the common securities of the Issuer
Trust representing undivided beneficial interests in the Issuer Trust and has
designated the _____% Common Securities (liquidation amount $25 per Common
Security) (the "Common Securities"). Except in accordance with Section 5.10 of
the Trust Agreement (as defined below), the Common Securities are not
transferable and any attempted transfer hereof other than in accordance
therewith shall be void. The designations, rights, privileges, restrictions,
preferences and other terms and provisions of the Common Securities are set
forth in, and this certificate and the Common Securities represented hereby are
issued and shall in all respects be subject to the terms and provisions of, the
Amended and Restated Trust Agreement of the Issuer Trust, dated as of August
_____, 2002, as the same may be amended from time to time (the "Trust
Agreement") among National Penn Bancshares, Inc., as Depositor; Christiana Bank
& Trust Company, as Property Trustee and as Delaware Trustee; the Administrative
Trustees named therein and the Holders of Trust Securities, including the
designation of the terms of the Common Securities as set forth therein. The
Issuer Trust will furnish a copy of the Trust Agreement to the Holder without
charge upon written request to the Issuer Trust at its principal place of
business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
Terms used but not defined herein have the meanings set forth in the
Trust Agreement.
IN WITNESS WHEREOF, one of the Administrative Trustees of the Issuer
Trust has executed this certificate this _____ day of August, 2002.
NPB CAPITAL TRUST II
By:
-----------------------------
Xxxx X. Xxxxxx
Administrative Trustee
This is one of the _____% Common Securities referred to in the
within-mentioned Trust Agreement.
CHRISTIANA BANK & TRUST COMPANY,
as Property Trustee and
Securities Registrar
By:
-------------------------------------
Name:
Authorized Signatory
Exhibit C
This Preferred Securities Certificate is a Global Preferred Securities
Certificate within the meaning of the Trust Agreement hereinafter referred to
and is registered in the name of a Depositary or a nominee of a Depositary. This
Preferred Securities Certificate is exchangeable for Preferred Securities
Certificates registered in the name of a person other than the Depositary or its
nominee only in the limited circumstances described in the Trust Agreement and
may not be transferred except as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary, except in the limited circumstances described in the
Trust Agreement.
Unless this Preferred Securities Certificate is presented by an
authorized representative of The Depository Trust Company, a New York
Corporation ("DTC"), to NPB Capital Trust II or its agent for registration of
transfer, exchange or payment, and any Preferred Securities Certificate issued
is registered in the name of Cede & Co. or such other name as is requested by an
authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO A PERSON IS
WRONGFUL inasmuch as the registered owner hereof, has an interest herein.
ANY PURCHASER OR HOLDER OF THIS PREFERRED SECURITIES CERTIFICATE, BY
ITS ACCEPTANCE HEREOF, AGREES, REPRESENTS AND WARRANTS THAT EITHER (I) IT IS NOT
AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYMENT RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED ("ERISA") OR (II) THE ACQUISITION AND HOLDING OF THIS
PREFERRED SECURITY IS NOT PROHIBITED BY EITHER SECTION 406 OF ERISA OR SECTION
4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR IS EXEMPT FROM
ANY SUCH PROHIBITED TRANSACTION.
Certificate Number Number of Preferred Securities ______________
P-1
$_________________
aggregate liquidation amount
CUSIP NO. 00000X000
Certificate Evidencing Preferred Securities
of
NPB Capital Trust II
_____% Preferred Securities
(Liquidation Amount $25 per Preferred Security)
NPB CAPITAL TRUST II, a statutory business trust created under the laws
of the State of Delaware (the "Issuer Trust"), hereby certifies that Cede & Co.
(the "Holder") is the registered owner of $______________ in aggregate
liquidation amount of preferred securities of the Issuer Trust representing
undivided beneficial interests in the assets of the Issuer Trust and has
designated the NPB Capital Trust II ____% Cumulative Trust Preferred Securities
(liquidation amount $25 per Preferred Security) (the "Preferred Securities").
The Preferred Securities are transferable on the books and records of the Issuer
Trust, in person or by a duly authorized attorney, upon surrender of this
Certificate duly endorsed and in proper form for transfer as provided in Section
5.04 of the Trust Agreement (as defined herein). The designations, rights,
privileges, restrictions, preferences, and other terms and provisions of the
Preferred Securities are set forth in, and this Certificate and the Preferred
Securities represented hereby are issued and shall in all respects be subject to
the terms and provisions of, the Amended and Restated Trust Agreement of the
Issuer Trust dated as of August _, 2002, as the same may be amended from time to
time (the "Trust Agreement"), among National Penn Bancshares, Inc., as
Depositor, Christiana Bank & Trust Company, as property trustee and as Delaware
trustee, (c) Xxxxxx X. Xxxxx and Xxxx X. Xxxxxx, as Administrative Trustees, and
(d) the Holders of Trust Securities, including the designation of the terms of
the Preferred Securities as set forth therein. The Holder is entitled to the
benefits of the Preferred Securities Guarantee Agreement entered into by
National Penn Bancshares, Inc., and Christiana Bank & Trust Company, as
guarantee trustee, dated as of August _, 2002 (the "Guarantee"), to the extent
provided therein. The Issuer Trust shall furnish a copy of the Trust Agreement
and the Guarantee to the Holder without charge upon written request to the
Issuer Trust at its principal place of business or registered office.
Upon receipt of this Certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
Terms used but not defined herein have the meanings set forth in the
Trust Agreement.
IN WITNESS WHEREOF, one of the Administrative Trustees of the Issuer
Trust has executed this Certificate this __ day of August, 2002.
NPB CAPITAL TRUST II
By:
---------------------------------
Xxxx X. Xxxxxx
Administrative Trustee
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Preferred Securities Certificate to:
--------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
-----------------------------------------------------
--------------------------------------------------------------------------------
agent to transfer this Preferred Securities Certificate on the books of the
Issuer Trust. The agent may substitute another to act for him or her.
Date:
---------------------------
Signature:
-----------------------------------------------------
(Sign exactly as your name appears on the other
side of this Preferred Securities Certificate)
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
Exhibit D
CERTIFICATE OF AUTHENTICATION
This is one of the _____% Cumulative Trust Preferred Securities
referred to in the within-mentioned Amended and Restated Trust Agreement.
Dated:
CHRISTIANA BANK & TRUST COMPANY,
as Property Trustee and
Securities Registrar
By:
-------------------------------------
Name:
Authorized Signatory
