EXHIBIT 4.4
TRUST AGREEMENT
TRUST AGREEMENT, dated as of January 3, 2001 by and between Spectrum
Bancorporation, Inc., an Iowa corporation, as "Depositor," and Wilmington
Trust Company, a Delaware banking corporation, as "Trustee."
Section 1. The Trust. The trust created hereby shall be known as Spectrum
Capital Trust II (the "Trust"), in which name the Trustee, or the Depositor to
the extent provided herein, may conduct the business of the Trust, make and
execute contracts, and xxx and be sued.
Section 2. The Trust Estate. The Depositor hereby assigns, transfers, conveys
and sets over to the Trustee the sum of $10.00. The Trustee hereby acknowledges
receipt of such amount in trust from the Depositor, which amount shall
constitute the initial trust estate. The Trustee hereby declares that it 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 Trustee is hereby authorized and directed to
execute and file a certificate of trust with the Delaware Secretary of State in
accordance with the provisions of the Business Trust Act.
Section 3. Amended and Restated Trust Agreement. The Depositor, the Trustee and
certain other parties will enter into an amended and restated Trust Agreement,
satisfactory to each such party and substantially in the form to be 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 (as defined below) and common securities of the Trust
to be referred to therein. Prior to the execution and delivery of such amended
and restated Trust Agreement, the Trustee 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 any licenses, consents or approvals required by applicable law or
otherwise.
Section 4. Certain Authorizations. The Depositor and the Trustee hereby
authorize and direct the Depositor, as the sponsor of the Trust, (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-1
(the "1933 Act Registration Statement"), including any pre-effective or
post-effective amendments to such 1933 Act Registration Statement (including the
prospectus and exhibits contained therein), relating to the registration under
the Securities Act of 1933, as amended, of the preferred securities of the Trust
(the "Preferred Securities") and certain other securities of the Depositor and
(b) a Registration Statement on Form 8-A (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 American Stock Exchange, Inc. and execute on
behalf of the Trust a listing application or 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 the American Stock Exchange; (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 the Depositor,
on behalf of the Trust, may deem necessary or desirable to register the
Preferred Securities under the securities or "Blue Sky" laws; and (iv) to
execute on behalf of the Trust such Underwriting Agreements with one or more
underwriters relating to the offering of the Preferred Securities as the
Depositor, on behalf of the Trust, may deem necessary or desirable. 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, the American Stock Exchange or
state securities or "Blue Sky" laws to be executed on behalf of the Trust by a
Trustee, the Depositor and any Trustee appointed pursuant to Section 6 hereof
are hereby authorized to join in any such filing and to execute on behalf of the
Trust any and all of the foregoing.
Section 5. Counterparts. This Trust Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
Section 6. Trustee. The number of Trustees initially shall be one 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 be either 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 Trustee may resign upon thirty days' prior notice to the Depositor.
Section 7. Governing Law. This Trust Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware (without regard
to conflicts of law of principles).
Section 8.
(a) The Trustee and its 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 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, or
any of its officers, directors, shareholders, employees, representatives or
agents, 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 shall, 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.
SPECTRUM BANCORPORATION, INC.
as Depositor
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Chairman and Chief Executive Officer
WILMINGTON TRUST COMPANY,
as Trustee
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
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Title: Financial Services Officer
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