EXHIBIT 4.8
TRUST AGREEMENT
THIS TRUST AGREEMENT (the "Trust Agreement") is entered into as of
October 12, 2001, by and among (i) BankAtlantic Bancorp, Inc., a Florida
corporation, as depositor (the Depositor"); (ii) Wilmington Trust Company, a
Delaware banking corporation, as trustee; and (iii) Xxxx X. Xxxxx, Xxxxx X.
Xxxxx and Xxxxxx X. Xxxxx, each an individual, as trustees (each of such
trustees in (ii) and (iii) a "Trustee" and collectively, the "Trustees"). The
Depositor and the Trustees hereby agree as follows:
1. The trust created hereby (the "Trust") shall be known as "BBC
Capital Trust II," in which name the Trustees, or the Depositor to the extent
provided herein, may engage in the transactions contemplated hereby, make and
execute contracts, and xxx and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over
to the Trustees the sum of Ten Dollars ($10.00). The Trustees hereby acknowledge
receipt of such amount in trust from the Depositor, which amount shall
constitute the initial trust estate. The Trustees hereby declare that they will
hold the trust estate in trust for the Depositor. It is the intention of the
parties hereto that the Trust created hereby constitute a business trust under
Chapter 38 of Title 12 of the Delaware Code, 12 Del. C. Section 3801, et seq.
(the "Business Trust Act"), and that this document constitute the governing
instrument of the Trust. The Trustees are hereby authorized and directed to
execute and file a certificate of trust in such form as the Trustees may approve
with the Delaware Secretary of State in accordance with the provisions of the
Business Trust Act.
3. The Depositor and the Trustees will enter into an Amended and
Restated Trust Agreement, satisfactory to each such party and substantially in
the form included as an exhibit to the 1933 Act Registration Statement (as
defined below), to provide for the contemplated operation of the Trust created
hereby and the issuance of the Preferred Securities and Common Securities
referred to therein. Prior to the execution and delivery of such Amended and
Restated Trust Agreement, the Trustees shall not have any duty or obligation
hereunder or with respect to the trust estate, except as otherwise required by
applicable law or as may be necessary to obtain prior to such execution and
delivery of any licenses, consents or approvals required by applicable law or
otherwise. Notwithstanding the foregoing, the Trustees may take all actions
deemed proper and necessary to effect the transactions contemplated herein.
4. The Depositor is hereby authorized, as the agent of the Trust
and in its sole discretion, (i) to file with the Securities and Exchange
Commission (the "Commission") and execute, in each case on behalf of the Trust,
(a) the Registration Statement on Form S-3 (the "1933 Act Registration
Statement") (including any pre-effective or post-effective amendments to the
1933 Act Registration Statement) relating to the registration under the
Securities Act of 1933, as amended, of the Preferred Securities of the Trust and
certain other securities; (b) any preliminary prospectus or prospectus or
supplement thereto relating to the Preferred Securities or any such other
securities required to be filed pursuant to Rule 424 under the 1933 Act; and (c)
a Registration Statement on Form 8-A (the "1934 Act Registration Statement")
(including all pre-effective and post-effective amendments thereto) relating to
the registration of the Preferred Securities of the Trust under the Securities
Exchange Act of 1934, as amended; (ii) to file with the New York Stock Exchange
or any other exchange or automated quotation system (each, an "Exchange") and
execute on behalf of the Trust one or more listing applications and all other
applications, statements, certificates, agreements and other instruments as
shall be necessary or desirable to cause the Preferred Securities to be listed
on any of the Exchanges; (iii) to file and execute on behalf of the Trust such
applications, reports, surety bonds, irrevocable consents, appointments of
attorney for service of process and other papers and documents as shall be
necessary or desirable to register the Preferred Securities under the securities
or blue sky laws of such jurisdictions as the Depositor, on behalf of the Trust,
may deem necessary or desirable; (iv) to negotiate and execute on behalf of the
Trust one or more underwriting agreements relating to the Preferred Securities,
among the Trust, the Depositor and the underwriter(s) named therein,
substantially in the form included as an exhibit to the 1933 Act Registration
Statement; and (v) to apply for and obtain a tax identification number for the
Trust. In the event that any filing referred to in clauses (i), (ii) and (iii)
above is required by the rules and regulations of the Commission, an Exchange or
state securities or blue sky laws, to be executed on behalf of the Trust by one
or more of the Trustees, each of the Trustees, in its or his capacity as a
Trustee of the Trust, is hereby authorized and, to the extent so required,
directed to join in any such filing and to execute on behalf of the Trust any
and all of the foregoing, it being understood that Wilmington Trust Company in
its capacity as a Trustee of the Trust shall not be required to join in any such
filing or execute on behalf of the Trust any such document unless required by
the rules and regulations of the Commission, the Exchange or state securities or
blue sky laws. In connection with the filings referred to above, the Depositor
and Xxxx X. Xxxxx, Xxxxx X. Xxxxx and Xxxxxx X. Xxxxx, each as Trustees and not
in their individual capacities, hereby constitute and appoint Xxxx X. Xxxxx and
Xxxxx X. Xxxxx, and each of them, as their true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for the Depositor or
such Trustee or in the Depositor's or such Trustees' name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to the 1933 Act Registration Statement and the 1934 Act Registration
Statement and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Commission, the Exchange and administrators of
the state securities or blue sky laws, granting unto said attorneys-in-fact and
agents full power and authority to do and perform each and every act and thing
requisite and necessary to be
done in connection therewith, as fully to all intents and purposes as the
Depositor or such Trustee might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or their
respective substitute or substitutes, shall do or cause to be done by virtue
hereof.
5. This Trust Agreement may be executed in one or more
counterparts.
6. The number of Trustees initially shall be four (4), and
thereafter the number of Trustees shall be such number as shall be fixed from
time to time by a written instrument signed by the Depositor which may increase
or decrease the number of Trustees; provided, however, that to the extent
required by the Business Trust Act, one Trustee shall either be a natural person
who is a resident of the State of Delaware or, if not a natural person, an
entity which has its principal place of business in the State of Delaware and
otherwise meets the requirements of applicable Delaware law. Subject to the
foregoing, the Depositor is entitled to appoint or remove without cause any
Trustee at any time. The Trustees may resign upon thirty (30) days' prior notice
to the Depositor.
7. This Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws of principles).
8. (a) The Trustees and their officers, directors, agents
and servants (collectively, the "Fiduciary Indemnified Persons") shall not be
liable, responsible or accountable in damages or otherwise to the Trust, the
Depositor, the Trustees or any holder of the Preferred Securities (the Trust,
the Depositor and any holder of the Trust Securities being a "Covered Person")
for any loss, damage or claim incurred by reason of any act or omission
performed or omitted by the Fiduciary Indemnified Persons in good faith on
behalf of the Trust and in a manner the Fiduciary Indemnified Persons reasonably
believed to be within the scope of authority conferred on the Fiduciary
Indemnified Persons by this Trust Agreement or by law, except that the Fiduciary
Indemnified Persons shall be liable for any such loss, damage or claim incurred
by reason of the Fiduciary Indemnified Person's negligence or willful misconduct
with respect to such acts or omissions.
(b) The Fiduciary Indemnified Persons shall be fully
protected in relying in good faith upon the records of the Trust and upon such
information, opinions, reports or statements presented to the Trust by any
person as to matters the Fiduciary Indemnified Persons reasonably believes are
within such other person's professional or expert competence and who has been
selected with reasonable care by or on behalf of the Trust, including
information, opinions, reports or statements as to the value and amount of the
assets, liabilities, profits, losses, or any other facts pertinent to the
existence and amount of assets from which distributions to holders of Preferred
Securities or other securities of the trust might properly be paid.
(c) The Depositor agrees, to the fullest extent permitted
by applicable law, (i) to indemnify and hold harmless each Fiduciary Indemnified
Person from and against any loss, damage, liability, tax, penalty, expense or
claim of any kind or nature whatsoever
incurred by the Fiduciary Indemnified Persons by reason of the creation,
operation or termination of the Trust in a manner the Fiduciary Indemnified
Persons reasonably believed to be within the scope of authority conferred on the
Fiduciary Indemnified Persons by this Trust Agreement of Trust, except that no
Fiduciary Indemnified Persons shall be entitled to be indemnified in respect of
any loss, damage or claim incurred by the Fiduciary Indemnified Persons by
reason of negligence or willful misconduct with respect to such acts or
omissions, and (ii) to advance expenses (including legal fees) incurred by a
Fiduciary Indemnified Person in defending any claim, demand, action, suit or
proceeding, from time to time, prior to the final disposition of such claim,
demand, action, suit or proceeding, upon receipt by the Trust of an undertaking
by or on behalf of such Fiduciary Indemnified Persons to repay such amount if it
shall be determined that such Fiduciary Indemnified Person is not entitled to be
indemnified as authorized in the preceding subsection.
(d) The provisions of Section 8 shall survive the
termination of this Trust Agreement or the earlier resignation or removal of the
Fiduciary Indemnified Persons.
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be duly executed as of the day and year first above written.
BANKATLANTIC BANCORP, INC.
as Depositor
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
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Title: Executive Vice President,
Chief Financial Officer
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WILMINGTON TRUST COMPANY,
as Trustee
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx,
Assistant Secretary
/s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx, as Trustee
/s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx, as Trustee
/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx, as Trustee
