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EXHIBIT 4.3
TRUST AGREEMENT
OF
ABI CAPITAL TRUST
THIS TRUST AGREEMENT is made as of May 20, 1998 (this "Trust
Agreement"), by and among American Bancshares, Inc., a Florida corporation, as
depositor (the "Depositor"), and Bankers Trust (Delaware), as trustee, and
Bankers Trust Company, as trustee (jointly, the "Trustees"). The Depositor and
the Trustees hereby agree as follows:
1. The trust created hereby shall be known as ABI Capital Trust
(the "Trust"), in which name the Trustees or the Depositor, to the extent
provided herein, may conduct the business of the Trust, make and execute
contracts, and xxx and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over
to the Trust the sum of $10. 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 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 or Declaration of Trust 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 or
Capital Securities and Common Securities referred to therein. Prior to the
execution and delivery of such amended and restated Trust Agreement or
Declaration of Trust, the Trustees shall not have any duty or obligation
hereunder or with respect of 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. Notwithstanding the foregoing, the Trustees may take all actions
deemed proper as are necessary to effect the transactions contemplated herein.
4. The Depositor, as sponsor of the Trust, is hereby authorized,
in its discretion, (i) to file with the Securities and Exchange Commission (the
"Commission") and to execute, in the case of the 1933 Act Registration
Statement and 1934 Act Registration Statement (as herein defined), on behalf of
the Trust, (a) a Registration Statement (the "1933 Act Registration
Statement"), including all pre-effective and post-effective amendments thereto,
relating to the registration under the Securities Act of 1933, as amended (the
"1933 Act"), of the Preferred or Capital Securities of the Trust, (b) any
preliminary prospectus or prospectus or supplement thereto relating to the
Preferred or Capital Securities of the Trust required to be filed pursuant to
the 1933 Act, and (c) a Registration Statement on Form 8-A or other appropriate
form (the "1934 Act Registration Statement"), including all pre-effective and
post-effective amendments thereto, relating to the registration of the
Preferred or Capital Securities of the Trust under the Securities Exchange Act
of 1934, as amended; (ii) to file with the New York Stock Exchange or other
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exchange, or the National Association of Securities Dealers ("NASD"), and
execute on behalf of the Trust a listing application and all other
applications, statements, certificates, agreements and other instruments as
shall be necessary or desirable to cause the Preferred or Capital Securities of
the Trust to be listed on the New York Stock Exchange or such other exchange,
or the NASD's Nasdaq National Market; (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
that shall be necessary or desirable to register the Preferred or Capital
Securities of the Trust 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 execute and deliver letters or documents to, or instruments
for filing with, a depository relating to the Preferred or Capital Securities
of the Trust; and (v) to execute, deliver and perform on behalf of the Trust an
underwriting agreement with one or more underwriters relating to the offering
of the Preferred or Capital Securities of the Trust.
In the event that any filing referred to in this Section 4 is required
by the rules and regulations of the Commission, the New York Stock Exchange or
other exchange, NASD, or state securities or "Blue Sky" laws to be executed on
behalf of the Trust by the Trustees, the Trustees, in their capacity as
trustees of the Trust, are hereby authorized to join in any such filing and to
execute on behalf of the Trust any and all of the foregoing, it being
understood that the Trustees, in their capacity as trustees 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 New York Stock Exchange or other exchange, NASD, or state
securities or "Blue Sky" laws.
5. This Trust Agreement may be executed in one or more
counterparts.
6. The number of trustees of the Trust initially shall be two and
thereafter the number of trustees of the Trust 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 of the Trust; provided,
however, that to the extent required by the Business Trust Act, one trustee of
the Trust 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. Subject to the foregoing, the Depositor
is entitled to appoint or remove without cause any trustee of the Trust at any
time. Any trustee of the Trust may resign upon thirty 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 principles).
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IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed as of the day and year first above written.
AMERICAN BANCSHARES, INC.,
as Depositor
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: President & CEO
BANKERS TRUST (DELAWARE), not in its
individual capacity but solely as trustee
of the Trust
By: /s/ M. Xxxx Xxxxxxx
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Name: M. Xxxx Xxxxxxx
Title: Assistant Secretary
BANKERS TRUST COMPANY, not in its
individual capacity but solely as trustee
of the Trust
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: Assistant Vice President
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CERTIFICATE OF TRUST
OF
ABI CAPITAL TRUST
THIS CERTIFICATE OF TRUST of ABI Capital Trust (the "Trust"),
dated as of May 20, 1998, is being duly executed and filed by the undersigned,
as trustees, to form a business trust under the Delaware Business Trust Act (12
Del. C. Section 3801, et seq.).
(i) Name. The name of the business trust being formed
hereby is ABI Capital Trust.
(ii) Delaware Trustee. The name and business address of
the trustee of the Trust in the State of Delaware are Bankers Trust (Delaware),
E.A. Delle Donne Corporate Center, Xxxxxxxxxx Bldg., 0000 Xxxxxx Xxxx, Xxxxx
000, Xxxxxxxxxx, Xxxxxxxx 00000-0000.
(iii) Effective Date. This Certificate of Trust shall be
effective as of its filing.
IN WITNESS WHEREOF, the undersigned, being the trustees of the
Trust, have executed this Certificate of Trust as of the date first above
written.
BANKERS TRUST (DELAWARE), not in its
individual capacity but solely
as trustee of the Trust
By: /s/ M. Xxxx Xxxxxxx
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Name: M. Xxxx Xxxxxxx
Title: Assistant Secretary
BANKERS TRUST COMPANY, not in its
individual capacity but solely
as trustee of the Trust
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: Assistant Vice President
