EXECUTION COPY
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AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
BNP U.S. FUNDING L.L.C.
Dated as of December 5, 1997
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINED TERMS
Section 1.1 Definitions.......................................2
Section 1.2 Headings.........................................12
ARTICLE II
FORMATION AND TERM; ADMISSION OF SECURITYHOLDERS
Section 2.1 Formation........................................12
Section 2.2 Admission of Securityholders.....................12
Section 2.3 Name.............................................13
Section 2.4 Term.............................................13
Section 2.5 Registered Agent and Office......................13
Section 2.6 Principal Place of Business......................13
Section 2.7 Qualification in Other Jurisdictions.............13
ARTICLE III
PURPOSE AND POWERS OF THE COMPANY; BYLAWS;
Section 3.1 Purpose and Powers...............................13
Section 3.2 By-Laws..........................................14
ARTICLE IV
CAPITAL CONTRIBUTIONS, ALLOCATIONS AND SECURITIES
Section 4.1 Form of Contribution.............................14
Section 4.2 Contributions with Respect to the Common
Securityholder...................................14
Section 4.3 Contributions with Respect to the Preferred
Securityholders..................................14
Section 4.4 Allocation of Profits and Losses.................14
Section 4.5 Withholding......................................15
Section 4.6 Securities as Personal Property..................15
i
ARTICLE V
SECURITYHOLDERS
Section 5.1 Powers of Securityholders........................15
Section 5.2 Partition........................................15
Section 5.3 Resignation......................................15
Section 5.4 Liability of Securityholders.....................15
ARTICLE VI
MANAGEMENT
Section 6.1 Management of the Company........................16
Section 6.2 Limits on Board of Directors' Powers.............19
Section 6.3 Reliance by Third Parties........................23
Section 6.4 No Management by Any Preferred Securityholders...23
Section 6.5 Business Transactions of the Common
Securityholder with the Company..................23
Section 6.6 Outside Businesses...............................23
Section 6.7 Duties of Independent Directors..................24
ARTICLE VII
COMMON SECURITIES AND PREFERRED SECURITIES
Section 7.1 Common Securities and Preferred Securities.......24
Section 7.2 General Provisions Regarding Preferred
Securities.......................................25
Section 7.3 Series A Preferred Securities....................26
ARTICLE VIII
VOTING AND MEETINGS
Section 8.1 Voting Rights of Preferred Securityholders.......37
Section 8.2 Voting Rights of Common Securityholders..........37
Section 8.3 Meetings of the Securityholders..................37
ARTICLE IX
DIVIDENDS
Section 9.1 Dividends........................................38
Section 9.2 Limitations on Distributions.....................39
ii
ARTICLE X
BOOKS AND RECORDS
Section 10.1 Financial Statements............................39
Section 10.2 Limitation on Access to Records.................39
Section 10.3 Accounting Method...............................39
Section 10.4 Annual Audit....................................39
ARTICLE XI
TAX MATTERS
Section 11.1 Company Tax Returns.............................40
Section 11.2 Tax Reports.....................................40
Section 11.3 Taxation as a Partnership.......................40
Section 11.4 Taxation of Securityholders.....................40
ARTICLE XII
EXPENSES
Section 12.1 Expenses........................................40
ARTICLE XIII
TRANSFERS OF SECURITIES BY SECURITYHOLDERS AND RELATED
MATTERS
Section 13.1 Right of Assignee to Become a Preferred
Securityholder..................................41
Section 13.2 Events of Cessation of Security Ownership.......41
Section 13.3 Persons Deemed Preferred Securityholders........41
Section 13.4 The Preferred Certificates......................42
Section 13.5 Book-Entry Preferred Securities.................42
Section 13.6 Transfer of Preferred Certificates; Legends.....43
Section 13.7 Mutilated, Destroyed, Lost or Stolen
Preferred Certificates..........................45
Section 13.8 Restrictions on Transfers of Securities.........45
ARTICLE XIV
MERGERS, CONSOLIDATIONS AND SALES
Section 14.1 The Company.....................................46
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ARTICLE XV
DISSOLUTION, LIQUIDATION AND TERMINATION
Section 15.1 No Dissolution..................................46
Section 15.2 Events Causing Dissolution......................47
Section 15.3 Notice of Dissolution...........................47
Section 15.4 Liquidation.....................................47
Section 15.5 Termination.....................................47
ARTICLE XVI
MISCELLANEOUS
Section 16.1 Amendments......................................47
Section 16.2 Amendment of Certificate........................48
Section 16.3 Successors......................................48
Section 16.4 Law; Severability...............................48
Section 16.5 Filings.........................................48
Section 16.6 Power of Attorney...............................48
Section 16.7 Exculpation.....................................49
Section 16.8 Indemnification.................................49
Section 16.9 Additional Documents............................49
Section 16.10 Notices........................................50
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ANNEX A
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FORM OF CONTINGENT SUPPORT AGREEMENT
ANNEX B
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BY-LAWS
ANNEX C
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LIST OF THE INITIAL DIRECTORS AND OFFICERS
ANNEX D
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FORM OF PREFERRED CERTIFICATE EVIDENCING
SERIES A PREFERRED SECURITIES
ANNEX E
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FORM OF TRUST AGREEMENT
ANNEX F
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FORM OF AGENCY AGREEMENT
SCHEDULE 7.1
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CASH CONTRIBUTED BY THE BRANCH TO THE COMPANY ON
DECEMBER 5, 1997 WITH RESPECT TO THE PURCHASE
OF 53,011 COMMON SECURITIES
v
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
BNP U.S. FUNDING L.L.C.
This Amended and Restated Limited Liability Company
Agreement of BNP U.S. FUNDING L.L.C. (the "Company") is made as
of December 5, 1997, among BANQUE NATIONALE DE PARIS (the
"Bank"), acting through its New York Branch (the "Branch"), as
initial Securityholder (as defined below) of the Company, and the
Persons (as defined below) who become additional Securityholders
of the Company in accordance with the provisions hereof.
WHEREAS, the Branch as initial Securityholder has
formed a limited liability company pursuant to the Delaware
Limited Liability Company Act, 6 Del.C. ss.18-101, et seq., as
amended from time to time (the "Delaware Act"), by filing a
Certificate of Formation of the Company with the office of the
Secretary of State of the State of Delaware on October 14, 1997,
and has entered into a Limited Liability Company Agreement of the
Company dated as of October 14, 1997 (the "Original Agreement");
WHEREAS, the Securityholders desire to amend and
restate the Original Agreement as provided in this Amended and
Restated Limited Liability Company Agreement (as amended,
modified or supplemented from time to time in accordance with its
terms, this "Agreement") and to continue the Company as a limited
liability company under the Delaware Act in accordance with the
provisions of this Agreement; and
WHEREAS, simultaneously with the Branch's execution
and delivery of this Agreement, the Company and the Bank are
executing and delivering the Contingent Support Agreement dated
as of the date hereof substantially in the form of Annex A hereto
(as amended, modified or supplemented from time to time in
accordance with its terms, the "Contingent Support Agreement").
NOW, THEREFORE, in consideration of the agreements and
obligations set forth herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Securityholders hereby agree as follows:
ARTICLE I
DEFINED TERMS
Section 1.1 Definitions. Unless the context otherwise
requires, the terms defined in this Article I shall, for the
purposes of this Agreement, have the meanings herein specified.
"Additional Investment Guidelines" has the meaning set
forth in Section 6.2(c).
"Adjusted Treasury Rate" has the meaning specified in
Section 7.3(d)(iii)(B).
"Administrative Action" has the meaning specified in
this Section 7.3(d)(iii)(B).
"Affiliate" means with respect to a specified Person,
any Person that directly or indirectly controls, is controlled
by, or is under common control with, the specified Person. As
used in this definition, the term "control" means the possession,
directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether
through ownership of voting securities, by contract or otherwise.
"Agency" means GNMA, FHLMC or FNMA.
"Agency Agreement" means the Agency Agreement between
the Company and FABC, dated as of December 5, 1997, as amended,
modified or supplemented from time to time.
"Agency pass-throughs" means mortgage pass-through
securities issued or guaranteed by an Agency that represent
fractional undivided interests in pools of mortgage loans.
"Agency ARMs" means mortgage pass-through securities
issued or guaranteed by an Agency that represent fractional
undivided interests in pools of mortgage loans consisting
entirely of adjustable-rate mortgage loans which either (i) reset
annually at a rate equal to the then-current rate of the One-Year
Constant Maturity Treasury Index or (ii) have a fixed coupon for
a specified period of time, after which they reset annually at a
rate equal to the then-current rate of the One-Year Constant
Maturity Treasury Index plus a margin.
"Agency Collateralized Securities" means multi-class
securities that are issued by a private company unrelated to an
Agency and rated AAA by Standard & Poor's, a division of McGraw
Hill, Inc., as to creditworthiness, that represent beneficial
ownership interests in a trust established by such private
company, the assets of which consist directly or indirectly of
Agency pass-throughs and/or REMIC Agency Securities.
"Agency Securities" means Agency ARMs, Floating-rate
REMICs and Fixed-rate REMICs.
2
"Agreement" means this Amended and Restated Limited
Liability Company Agreement, as it may be further amended,
modified, supplemented or restated from time to time in
accordance with its terms.
"Applicable Procedures" means, with respect to any
transfer or transaction involving a Book-Entry Preferred
Security, the rules and procedures of the Clearing Agency for
such Book-Entry Preferred Security, in each case to the extent
applicable to such transaction and as in effect from time to
time.
"authorized person" has the meaning specified in
Section 2.1(b).
"Bank" has the meaning specified in the Preamble of
this Agreement.
"Base Investment Guidelines" has the meaning set forth
in Section 6.2(b).
"Board of Directors" means the Board of Directors of
the Company as constituted in accordance with this Agreement and
the By-Laws.
"Book-Entry Preferred Security" means a Preferred
Security the ownership and transfer of which shall be made
through book entries by a Clearing Agency as described in Section
13.5.
"Book-Entry Preferred Certificate" means a Preferred
Certificate evidencing ownership of Book-Entry Preferred
Securities.
"Branch" has the meaning specified in the Preamble of
this Agreement.
"Business Day" means a day other than Saturday, Sunday
or a day on which banking institutions in The City of New York
are authorized or required by law or order to remain closed.
"By-Laws" mean the By-Laws of the Company in the form
of Annex B hereto, as they may be amended from time to time by
the Board of Directors of the Company in accordance with the
provisions of this Agreement (which By-Laws are, for all purposes
of this Agreement, deemed to be incorporated herein and to be a
part hereof).
"Calculation Agent" means FABC and subsequently any
successor thereto.
"Capital Adequacy Certificate" has the meaning
specified in Section 7.3(c)(iv)(A).
"Certificate" means the Certificate of Formation of
the Company and any and all amendments thereto and restatements
thereof filed on behalf of the Company with the office of the
Secretary of State of the State of Delaware pursuant to the
Delaware Act.
"Certificate Depository Agreement" means, with respect
to each series of Preferred Securities, an agreement between the
Company and the Clearing Agency in such form
3
as may be approved by the Board of Directors or otherwise
pursuant to this Agreement, as the same may be amended and
supplemented from time to time.
"Certificate of Designation" means a Certificate of
Designation establishing the terms and conditions of a series of
Preferred Securities adopted by the Board of Directors pursuant
to Section 7.2(a).
"Change of Capital Event" has the meaning specified in
Section 7.3(d)(iii)(B).
"Clearing Agency" means an organization registered as
a "clearing agency" pursuant to Section 17A of the Exchange Act.
"Clearing Agency Participant" means a broker, dealer,
bank, other financial institution or other person for whom from
time to time a Clearing Agency effects book-entry transfers and
pledges of securities deposited with the Clearing Agency.
"Closing Date" means the date of the "Closing Time" or
a "Closing Date" under a Purchase Agreement.
"Closing Time" means the "Closing Time" under a
Purchase Agreement.
"Code" means the Internal Revenue Code of 1986, as
amended or any corresponding federal tax statute enacted after
the date of this Agreement. A reference to a specific section
(ss.) of the Code refers not only to such section but also to any
corresponding provision of any federal tax statute enacted after
the date of this Agreement, as such specific section or
corresponding provision is in effect on the date of application
of the provisions of this Agreement containing such reference.
"Commission" means the United States Securities and
Exchange Commission.
"Common Securityholder" means a Securityholder that
owns one or more Common Securities.
"Common Securities" means the securities of the
Company representing common limited liability company interests
in the Company which are described in this Agreement.
"Company" has the meaning specified in the Preamble of
this Agreement.
"Comparable Treasury Issue" has the meaning specified
in Section 7.3(d)(iii)(B).
"Comparable Treasury Price" has the meaning specified
in Section 7.3(d)(iii)(B).
"Contingent Support Agreement" has the meaning set
forth in the Preamble to this Agreement.
4
"Definitive Preferred Certificate" means either or
both (as the context requires) of (i) Preferred Securities issued
as Book-Entry Preferred Certificates, and (ii) Preferred
Certificates issued in certificated, fully registered form.
"Delaware Act" has the meaning specified in the first
Recital of this Agreement.
"Directors" means each of the Persons listed as a
Director on Annex C hereto until such Persons shall resign or
otherwise be duly removed as a Director, and each Person who may
from time to time be appointed or elected to serve as a successor
to any Director of the Company in accordance with the provisions
of this Agreement and of the By-Laws.
"DTC" means the Depository Trust Company, the initial
Clearing Agency.
"Eligible Securities" means Agency pass-throughs,
Agency Securities, Agency Collateralized Securities, REMIC Agency
Securities, Short-Term Instruments and Treasuries.
"FABC" means French American Banking Corporation.
"Fiscal Year" means (i) the period commencing upon the
formation of the Company and ending on December 31, 1997, and
(ii) any subsequent twelve (12) month period commencing on
January 1 and ending on December 31.
"Fixed-rate REMICs" means securities issued or
guaranteed by an Agency that (i) represent beneficial ownership
interests in a trust established by an Agency the assets of which
consist directly or indirectly of Agency pass-throughs or other,
previously issued REMIC Agency Securities, (ii) are planned
amortization class securities which receive principal payments
using a predetermined schedule derived by assuming two constant
prepayment rates for the underlying mortgage loans, (iii) have
fixed coupons and (iv) pay interest on a current basis.
"FHLMC" means the Federal Home Loan Mortgage
Corporation.
"Floating-rate REMICs" means securities issued or
guaranteed by an Agency that (i) represent beneficial ownership
interests in a trust established by an Agency the assets of which
consist directly or indirectly of Agency pass-throughs or other,
previously issued REMIC Agency Securities, (ii) have coupons that
are reset periodically based on an index and that vary directly
and on a one to one ratio with changes in the index and (iii) pay
interest on a current basis.
"FNMA" means the Federal National Mortgage
Association.
"French Banking Commission" means the Commission
bancaire, as from time to time constituted and created under the
laws of The Republic of France, or, if at any time after the
execution of this Agreement the Commission bancaire is not
existing or performing the duties now assigned to it under French
law with respect to regulatory oversight of the Bank, then the
body performing such duties at such time.
5
"GAAP" means the generally accepted accounting
principles set forth in the opinions and pronouncements of the
Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a
significant segment of the accounting profession in the United
States, which are in effect from time to time.
"General Secretariat of the French Banking Commission"
means the Secretariat general de la Commission bancaire as from
time to time constituted and created under the laws of The
Republic of France, or, if at any time after the execution of
this Agreement the Secretariat general de la Commission bancaire
is not existing or performing the duties now assigned to it under
French law with respect to regulatory oversight of the Bank, then
the body performing such duties at such time.
"GNMA" means the Government National Mortgage
Association.
"Independent Director" means each member of the Board
of Directors who is not a current officer or employee of the
Company, the Bank or any Affiliate of the Bank or of
any Person or Persons that, in the aggregate, owns or own more
than 50% of the outstanding Common Securities. In addition, any
member of the Board of Directors elected by holders of Preferred
Securities, including the Series A Preferred Securities, will be
deemed to be an Independent Director.
"Initial Portfolio" means all the securities sold by
the Branch to the Company pursuant to the Portfolio Securities
Purchase Agreement.
"Initial Purchasers" means the initial purchasers
named in a Purchase Agreement.
"Junior Securities" means the Common Securities and
all other classes and series of equity securities of the Company
now or hereafter issued, other than any class or series of equity
securities of the Company expressly designated as being on a
parity with or senior to the Series A Preferred Securities as to
dividend rights and rights upon dissolution, liquidation or
winding up (subject, in the case of the Common Securities, to the
consequences of a Shift Event).
"LIBOR Determination Date" has the meaning specified
in Section 7.3(b)(iv).
"LIBOR Reset Date" has the meaning specified in
Section 7.3(b)(ii).
"Liquidation Distribution" has the meaning specified
in Section 7.3(e)(i)(A).
"liquidation preference" means with respect to each
Series A Preferred Security, the stated liquidation preference
thereof, i.e., $10,000.
"London Business Day" means a day on which dealings in
U.S. dollar deposits are transacted in the London interbank
market.
6
"Majority (or Other Stated Percentage) in Liquidation
Preference" means Preferred Securities whose aggregate
liquidation preferences represent more than 50% or not less than
such stated percentage of the aggregate liquidation preference of
all Preferred Securities then outstanding.
"Make-Whole Amount" has the meaning specified in
Section 7.3(d)(iii)(B).
"1940 Act" means the Investment Company Act of 1940,
as amended.
"Officers" means each of the Persons listed as an
Officer on Annex C hereto until such Persons shall resign or
otherwise be duly removed as an Officer and each Person who may
from time to time be duly appointed an Officer by the Board of
Directors or pursuant to Section 6.1(b) and acting in accordance
with the provisions of this Agreement and of the By-Laws.
"Offering Memorandum" means the Offering Memorandum,
dated December 1, 1997, relating to the offering of the Series A
Preferred Securities.
"The One-Year Constant Maturity Treasury Index" means
the weekly average yield on U.S. Treasury securities adjusted to
a constant maturity of one year as published by the Federal
Reserve Board in Statistical Release H. 15(519) or any similar
publication or, if not so published, as reported by any Federal
Reserve Bank or by any U.S. Government department or agency.
"One-Week LIBOR" means the rate offered on the London
Interbank market for one-week U.S. dollar deposits as determined
by the Calculation Agent pursuant to Section 7.3(b)(iv).
"Operating Documents" means the Services Agreement,
the Contingent Support Agreement, the Agency Agreement, the
Registration Undertaking Letter Agreement and the Trust
Agreement.
"Original Agreement" has the meaning specified in the
recitals of this Agreement.
"Owner" means each Person who is (i) in the case of
Preferred Securities evidenced by Book-Entry Preferred
Securities, the beneficial owner of a Book-Entry Preferred
Security as reflected in the records of the Clearing Agency or,
if a Clearing Agency Participant is not the Owner, as reflected
in the records of a Person maintaining an account with such
Clearing Agency (directly or indirectly in accordance with the
rules of such Clearing Agency), and (ii) in the case of Preferred
Securities issued in certificated, fully registered form, the
record owner reflected on the securities registration maintained
by the Registrar.
"Parity Securities" means any class or series of
equity securities of the Company expressly designated as being on
a parity with the Series A Preferred Securities as to dividend
rights and rights upon dissolution, liquidation or winding up.
7
"Person" means any individual, corporation,
association, partnership (general or limited), joint venture,
trust, estate, limited liability company, or other legal entity
or organization.
"Plan" means each of (i) an employee benefit or other
plan subject to Title I of the Employee Retirement Income
Security Act of 1974, as amended, or Section 4975 of the Code and
(ii) an entity whose underlying assets include "plan assets" by
reason of any Plan's investment in the entity.
"Portfolio Securities Purchase Agreement" means the
Portfolio Securities Purchase Agreement between the Company and
the Bank dated as of December 1, 1997, as amended, modified or
supplemented from time to time in accordance with its terms.
"Power of Attorney" means the Power of Attorney
granted pursuant to Section 16.6.
"Preferred Certificate" means a certificate
substantially in the form attached hereto as Annex D, evidencing
the Preferred Securities held by a Preferred Securityholder,
which has been duly executed as provided in Section 13.4.
"Preferred Securityholder" means a Securityholder
which holds one or more Preferred Securities.
"Preferred Securities" means the securities of the
Company representing preferred limited liability company
interests in the Company and which are described in this
Agreement.
"Primary Treasury Dealer" has the meaning specified in
Section 7.3(d)(iii)(B).
"Purchase Agreement" means a Purchase Agreement among
the Bank, the Company and the Initial Purchasers named therein,
relating to the sale and issuance of Preferred Securities,
including the Purchase Agreement dated December 1, 1997 relating
to the Series A Preferred Securities.
"Purchase Price" for any Preferred Security means the
amount paid per Preferred Security pursuant to a Purchase
Agreement under which such Preferred Securities are being
purchased, payment of which shall constitute the contribution to
capital contemplated by Section 4.3 of this Agreement.
"QIB" means a "qualified institutional buyer" within
the meaning of Rule 144A.
"Rating Agency" means each of Xxxxx'x Investors
Service Inc. and Standard & Poor's, a division of McGraw Hill,
Inc.
"Receivership Proceedings" means with respect to the
Bank, the rendering by a
8
French court of a judgment opening insolvency proceedings
(redressement ou liquidation judiciaire) or the appointment of a
receiver (administrateur provisoire or a liquidator in accordance
with articles 44 and 46 of the French Banking Law No. 84.46 of
January 24, 1984, respectively, or any successor provisions
thereto).
"Redemption Date" has the meaning set forth in Section
7.3(b)(i).
"Reference Treasury Dealer" has the meaning specified
in Section 7.3(d)(iii)(B).
"Reference Treasury Dealer Quotations" has the meaning
specified in Section 7.3(d)(iii)(B).
"Registrar" has the meaning specified in Section
13.6(a).
"Registration Statement" means a registration
statement relating to the Series A Preferred Securities filed by
the Company under Section 12(g) of the Exchange Act with the
Commission.
"Registration Undertaking Letter Agreement" means the
agreement dated December 5, 1997 among the Bank, the Company and
the Initial Purchasers named therein, relating to the filing of a
Registration Statement.
"Regulatory Event" has the meaning specified in
Section 7.3(d)(iii)(B).
"Remaining Life" has the meaning specified in Section
7.3(d)(iii)(B).
"REMIC Agency Securities" means multi-class securities
that are issued or guaranteed by an Agency and that represent
beneficial ownership interests in a trust established by an
Agency, the assets of which consist directly or indirectly of
Agency pass-throughs.
"Restricted Short-Term Instruments" means the
Trustee's Demand Deposit Account (SWEEP), the Trustee's
Certificates of Deposits and the Trustee's Cash Reserve Account
as defined under the Trust Agreement and the related contractual
documentation between the Company and the Trustee.
"Rule 144A" means Rule 144A of the Commission under
the Securities Act.
"Securities Act" means the Securities Act of 1933, as
amended.
"Security" means a limited liability company interest
in the Company, including the right of the holder thereof to any
and all benefits to which a Securityholder may be entitled as
provided in this Agreement, together with the obligations of a
Securityholder to comply with all of the terms and provisions of
this Agreement, and includes the Common Securities and the
Preferred Securities from time to time outstanding.
"Securityholder" means any Person that holds a
Security of the Company and is
9
admitted as a member and Securityholder of the Company pursuant
to the provisions of this Agreement and of the Delaware Act, in
its capacity as a Securityholder of the Company. For purposes of
the Delaware Act, the Common Securityholders and the Preferred
Securityholders shall constitute separate classes or groups of
Securityholders and of members.
"Series A Dividend Payment Date" has the meaning
specified in Section 7.3(b)(i).
"Series A Dividend Period" has the meaning specified
in Section 7.3(b)(i).
"Series A Preferred Securityholder" means any Person
that holds any Series A Preferred Security.
"Series A Preferred Securities" has the meaning
specified in Section 7.3(a).
"Services Agreement" means the Services Agreement
between the Company and the Branch, dated as of December 5, 1997,
as amended, modified or supplemented from time to time.
"Shift Event" means any of the following events that
occur: (i) either the Bank's total risk-based capital ratio or
Tier 1 risk-based capital ratio shall decline below the minimum
percentages required by French banking regulations, (ii) the Bank
shall be subject to Receivership Proceedings, or (iii) the French
Banking Commission, in its sole discretion, shall notify the Bank
and the Company that it has determined that the Bank's financial
condition is deteriorating such that either of the foregoing
clauses (i) or (ii) will apply in the near term. A Shift Event
occurring pursuant to clause (i) of the preceding sentence shall
be deemed to have occurred as provided in Section 7.3(c)(iv); a
Shift Event occurring pursuant to clause (ii) or (iii) of the
second preceding sentence shall be deemed to have occurred (x) on
the date such Receivership Proceedings were commenced either by a
judgment opening insolvency proceedings or by the effective
appointment of a receiver (in the case of clause (ii)) or (y) the
date the Bank and the Company receive the French Banking
Commission's notice (in the case of clause (iii)).
"shift in dividend preference" has the meaning
specified in Section 7.3(c)(i)(A).
"Shift Period" means the period from the day of
occurrence of a Shift Event through but excluding the first day
on which none of the elements of a Shift Event is present. In the
case of decline in the total risk-based capital ratio or Tier 1
risk-based capital ratio below the applicable requirement, that
element of a Shift Event will cease to exist at any time the Bank
certifies to the Company pursuant to a Capital Adequacy
Certificate, that both capital ratios equal or surpass the
applicable requirement. In the case of a Receivership Proceeding,
that element of a Shift Event will cease to exist at any time
such Receivership Proceeding is terminated (either because the
Bank is no longer subject to any procedure under law n(degree)
85-98 of January 25, 1985 (or any similar procedure in the
future) other than a plan de continuation or no receiver is any
longer appointed in relation to the Bank). In the case of
determination by the French Banking Commission, that element will
cease to exist if the French Banking Commission provides a
10
further notice to the Bank and to the Company that the relevant
Shift Event will not apply in the near term.
"Short-Term Instruments" means short-term investment
instruments not subject to U.S. withholding tax.
"Special Dividend" has the meaning specified in
Section 7.3(c)(ii).
"Successor Securities" has the meaning specified in
Section 14.1.
"Tax Event" has the meaning specified in Section
7.3(d)(iii)(B).
"Tax Matters Partner" means the Branch designated as
such in Section 11.1(a).
"Telerate Page 3750" means the display designated on
page "3750" on the Telerate Service (or such other page as may
replace page 3750 on that service or such other service or
services as may be nominated by the British Bankers' Association
for the purpose of displaying London interbank offered rates for
U.S. Dollar deposits).
"Tier 1 risk-based capital ratio" means, as to the
Bank at any time, the ratio of the Bank's Tier 1 capital to its
risk-adjusted assets, both determined in accordance with
applicable French banking regulations in effect at the time of
determination.
"Tier 1 capital" means common equity and qualifying
non-cumulative perpetual preferred stock, reserves (other than
revaluation reserves), share premiums, retained earnings,
unallocated profits with respect to the most recent year (less
the amount of any related dividend proposed for approval to the
shareholders) and minority interests in the equity accounts of
consolidated subsidiaries.
"Tier 2 capital" means revaluation reserves (reserves
arising from the revaluation of assets in accordance with
relevant French banking regulations), perpetual equity not
qualifying for Tier 1 capital treatment, perpetual subordinated
debt and subordinated debt with an original maturity of at least
five years.
"Total risk-based capital ratio" means, as to the Bank
at any time, the ratio of the Bank's Tier 1 capital plus Tier 2
capital to its risk-adjusted assets, each determined in
accordance with applicable French banking regulations in effect
at the time of determination.
"Transfer Agent" has the meaning specified in Section
13.6(a).
"Treasuries" means U.S. Treasury securities with a
remaining maturity of up to ten years.
"Treasury Rate" has the meaning specified in Section
7.3(d)(iii)(B).
"Treasury Regulations" means the income tax
regulations, including temporary
11
regulations, promulgated under the Code, as such regulations may
be amended from time to time (including corresponding provisions
of succeeding regulations).
"Trust Agreement" means the Trust Agreement dated as
of December 1, 1997 substantially in the form of Annex E hereto,
as amended, modified or supplemented from time to time in
accordance with its terms, pursuant to which the Trustee therein
will hold title to assets of the Company in trust for the benefit
of the Company and its Securityholders.
"Trustee" means Citibank, N.A.
"U.S. dollars" or "U.S.$" or "$" means United States
dollars.
"Weekly Dividend Period" has the meaning specified in
Section 7.3(b)(ii).
Section 1.2 Headings. The headings and subheadings in
this Agreement are included for convenience and identification
only and are in no way intended to describe, interpret, define or
limit the scope, extent or intent of this Agreement or any
provision hereof.
ARTICLE II
CONTINUATION AND TERM;
ADMISSION OF SECURITYHOLDERS
Section 2.1 Continuation. (a) The Securityholders
hereby agree to the continuation of the Company as a limited
liability company under and pursuant to the provisions of the
Delaware Act and of this Agreement and agree that the rights,
duties and liabilities of the Securityholders shall be as
provided in the Delaware Act, except as otherwise provided herein
or in the By-Laws.
(b) Any Person designated as an "authorized person" by
the Board of Directors is authorized to execute, deliver and file
on behalf of the Company any and all amendments to and
restatements of the Certificate, as an authorized person within
the meaning of the Delaware Act.
Section 2.2 Admission of Securityholders. Upon the
execution of this Agreement, the Branch shall become and be
designated as automatically and without any further act on the
part of any Person being necessary, the Common Securityholder.
Without execution of this Agreement, upon execution and delivery
by the Company and the Bank of the Contingent Support Agreement
and the payment to the Company for the Preferred Securities being
acquired by a Person in connection with the issuance of Preferred
Securities, including the issuance of the Series A Preferred
Securities on the Closing Date pursuant to the terms of the
related Purchase Agreement, which action shall be deemed to
constitute a request by the Person that the books and records of
the Company reflect its admission as a Preferred Securityholder,
the Person shall thereupon be admitted to the Company as a
Preferred Securityholder.
Section 2.3 Name. The name of the Company being formed
and continued
12
hereby is "BNP U.S. FUNDING L.L.C.". The business of the Company
may be conducted upon compliance with all applicable laws under
any other name designated by the Board of Directors.
Section 2.4 Term. The term of the Company commenced
upon the date on which the Certificate was filed in the office of
the Secretary of State of the State of Delaware and shall
continue perpetually, unless the Company is dissolved in
accordance with the provisions of the Delaware Act and this
Agreement. The existence of the Company as a separate legal
entity shall continue until the cancellation of the Certificate
in the manner required by the Delaware Act.
Section 2.5 Registered Agent and Office. The Company's
registered agent in Delaware shall be RL&F Service Corp., One
Xxxxxx Square, 10th Floor, Tenth and King Streets, Wilmington,
New Castle County, Delaware 19801 and its office shall be c/o the
registered agent. At any time, the Board of Directors may
designate another registered agent and/or registered office.
Section 2.6 Principal Place of Business. The principal
place of business of the Company shall be at 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000. The Board of Directors may change the
location of the Company's principal place of business; provided
however, that such change has no material adverse effect upon any
Preferred Securityholder.
Section 2.7 Qualification in Other Jurisdictions. The
Board of Directors shall cause the Company to be qualified or
registered under assumed or fictitious name statutes or similar
laws in any jurisdiction in which the Company conducts business
and in which such qualification or registration is required by
law or deemed advisable by the Board of Directors. Each Person
designated by the Board of Directors as an "authorized person" is
authorized to execute, deliver and file on behalf of the Company
any certificates (and any amendments and/or restatements thereof)
necessary for the Company to qualify to do business in each
jurisdiction in which the Board of Directors has determined that
the Company shall conduct business.
ARTICLE III
PURPOSE AND POWERS OF THE COMPANY;
BY-LAWS
Section 3.1 Purposes and Powers. The sole purposes of
the Company are to issue Preferred Securities and Common
Securities and to use substantially all of the proceeds thereof
to purchase and hold Eligible Securities and, except as otherwise
expressly limited herein, to enter into, make and perform all
contracts and other undertakings, and engage in all activities
and transactions, as the Board of Directors may reasonably deem
necessary or advisable for the carrying out of the foregoing
purposes of the Company. The Company may not conduct any other
business or operations except as contemplated by the preceding
sentence. The Company shall have the power and authority to take
any and all actions necessary, appropriate, proper, advisable,
incidental or convenient to or for the furtherance of the
purposes of the
13
Company as set forth herein.
Section 3.2 By-Laws. The Board of Directors, Officers
and Securityholders shall be subject to the express provisions of
this Agreement and of the By-Laws. In case of any conflict
between any provisions of this Agreement and any provisions of
the By-Laws, the provisions of this Agreement shall control.
ARTICLE IV
CAPITAL CONTRIBUTIONS, ALLOCATIONS AND SECURITIES
Section 4.1 Form of Contribution. The contribution to
the Company with respect to a Securityholder may, as determined
by the Board of Directors in its discretion, be in cash or other
legal consideration.
Section 4.2 Contributions with Respect to the Common
Securityholder. The Common Securityholder shall contribute to the
Company on or prior to each Closing Date, either in connection
with the purchase of Common Securities or otherwise, cash or
property having a total value at the time of contribution equal
to the stated value of the Common Securities received.
Section 4.3 Contributions with Respect to the
Preferred Securityholders. On each Closing Date there shall be
contributed to the capital of the Company, with respect to each
Person who purchases a Preferred Security on such Closing Date,
an amount in cash equal to the Purchase Price for such Preferred
Security (such amount being such Person's capital contribution to
the Company). Preferred Securityholders, in their capacity as
Securityholders of the Company, shall not be required to make any
additional contributions to the Company (except as required by
law).
Section 4.4 Allocation of Profits and Losses. Except
as otherwise provided in Section 7.3 or in any Certificate of
Designation with respect to any period following the occurrence
of a Shift Event, the profits, gains, and losses of the Company
for any Fiscal Year (or portion thereof) shall be allocated as
follows:
(a) all gains and losses resulting from any
redemption, prepayment, sale, exchange, transfer or disposition
of Company assets by the Company shall be allocated 100% to
the Common Securityholders;
(b) net profit of the Company (determined without
regard to the amount of any gains and losses described in
subparagraph (a) of this Section 4.4) shall be allocated (i) pro
rata to the Preferred Securityholders until the amount so
allocated to each Preferred Securityholder equals the amount of
dividends attributable for such Fiscal Year (or portion thereof)
as determined on a daily accrual basis with respect to the
Preferred Securities held by such Securityholder and (ii)
thereafter to the Common Securityholders; and
14
(c) net loss of the Company (determined without regard
to the amount of any gains and losses described in subparagraph
(a) of this Section 4.4) shall be allocated 100% to the Common
Securityholders.
Section 4.5 Withholding. The Company shall comply with
any withholding requirements under federal, state and local law
and shall remit amounts withheld to and file required forms with
applicable jurisdictions. To the extent that the Company is
required to withhold and pay over any amounts to any authority
with respect to distributions or allocations to any
Securityholder, the amount withheld shall be deemed to be a
distribution in the amount of the withholding to such
Securityholder. To the fullest extent permitted by law, in the
event of any claimed over withholding, Securityholders shall be
limited to an action against the applicable jurisdiction. If the
amount withheld was not withheld from actual distributions, the
Company may reduce subsequent distributions by the amount of such
withholding. Each Securityholder, by its acceptance of
Securities, shall be deemed to agree to furnish the Company with
any representations and forms as shall reasonably be requested by
the Company to assist it in determining the extent of, and in
fulfilling, its withholding obligations.
Section 4.6 Securities as Personal Property. Each
Securityholder hereby agrees that its Securities shall for all
purposes be personal property. A Securityholder has no interest
in specific property of the Company.
ARTICLE V
SECURITYHOLDERS
Section 5.1 Powers of Securityholders. The
Securityholders shall have the power to exercise any and all
rights or powers granted to the Securityholders pursuant to the
express terms of this Agreement and of the By-Laws and shall be
subject in all respects to the provisions hereof and thereof.
Section 5.2 Partition. Each Securityholder waives any
and all rights that it may have to maintain an action for
partition of the property of the Company.
Section 5.3 Resignation. A Securityholder may resign
from the Company prior to the dissolution and winding up of the
Company only upon the assignment of its entire ownership interest
in any Securities (including any redemption, repurchase or other
acquisition by the Company of such Securities) in accordance with
the provisions of this Agreement. A Securityholder who has
resigned shall not be entitled to receive from the Company any
distribution, the fair value of its Securities or any portion
thereof except as otherwise expressly provided for in this
Agreement.
Section 5.4 Liability of Securityholders.
(a) Except as otherwise provided by the Delaware Act,
(i) the debts, obligations and liabilities of the Company,
whether arising in contract, tort or otherwise, shall be
15
solely the debts, obligations and liabilities of the Company and
(ii) no Securityholder shall be obligated personally for any such
debt, obligation or liability of the Company solely by reason of
being a Securityholder of the Company.
(b) A Securityholder, in its capacity as such, shall
have no liability in excess of (i) the amount of its capital
contributions, (ii) its share of any assets and undistributed
profits of the Company, (iii) any amounts required to be paid by
such Securityholder pursuant to this Agreement or any payment
and/or indemnity in connection with the registration of transfers
of Securities and (iv) the amount of any distributions wrongfully
distributed to it to the extent set forth in the Delaware Act.
ARTICLE VI
MANAGEMENT
Section 6.1 Management of the Company.
(a) Except as otherwise expressly provided in this
Agreement or in the By-Laws or as provided in the Delaware Act,
the business and affairs of the Company shall be managed, and all
actions required under this Agreement shall be determined, solely
and exclusively by the Board of Directors, which shall have all
rights and powers on behalf and in the name of the Company to
perform all acts necessary and desirable to the objects and
purposes of the Company, including the right to appoint Officers
and to authorize any Officer to act on behalf of the Company. Any
action taken by the Board of Directors or any duly appointed and
acting Officer in accordance with this Agreement or the By-Laws
shall constitute the act of, and shall serve to bind, the
Company.
(b) The number of directors of the Company initially
shall be six, which number may be increased or decreased as
provided in the By-Laws, but shall never be less than three nor
more than seven and which shall, at all times during which the
Board of Directors shall be acting, have at least one Independent
Director. The names of the initial Directors, including
the name of the initial Independent Director are set forth in
Annex C hereto. The Directors may increase the number of
Directors and may fill any vacancy, whether resulting from an
increase in the number of directors or otherwise, on the Board of
Directors occurring before the first meeting of Securityholders
in the manner provided in the By-Laws. The Directors will serve
three-year terms (five years in the case of Independent
Directors), subject to earlier death, resignation or removal
pursuant to Section 7.3(f) or the By-Laws. The names of the
initial Officers, and their offices, are set forth in Annex C
hereto. Each such Officer shall have the duties and
responsibilities that would apply to his or her office if the
Company were a corporation established under the Delaware General
Corporation Law, except to the extent that the Directors from
time-to-time determine otherwise.
(c) Each member of the Board of Directors shall be a
"manager" of the Company for all purposes of, and within the
meaning of, the Delaware Act.
16
(d) Without limiting the generality of the foregoing,
and subject to the provisions of Section 6.2, the Board of
Directors shall have all authority, rights and powers in the
management of the business of the Company to do any and all other
acts and things necessary, proper, convenient or advisable to
effectuate the purposes of this Agreement, including by way of
illustration but not by way of limitation, the following:
(i) to authorize the Company or any Officer of the
Company on behalf of the Company, to engage in transactions
and dealings, including transactions and dealings with any
Securityholder or any Affiliate of any Securityholder and
including the entering into and performance by the Company
of one or more agreements with any person, corporation,
association, company, trust, partnership (limited or
general) or other organization whereby, subject to the
supervision and control of the Board of Directors, any such
other person, corporation, association, company, trust,
partnership (limited or general) or other organization
shall render or make available to the Company managerial,
investment, advisory and/or related services, office space
and other services and facilities upon such terms and
conditions as may be provided in such agreement or
agreements (including, if deemed fair and equitable by the
Board of Directors, the compensation payable thereunder by
the Company);
(ii) to call meetings of Securityholders or any class
or series thereof;
(iii) to issue Securities, including Common
Securities and Preferred Securities, in accordance with the
provisions of this Agreement;
(iv) to pay all expenses incurred in forming the Company
to the extent not paid by the Bank or the Branch;
(v) to authorize, declare or otherwise determine and
make dividends or any distribution, in cash or otherwise,
on Securities, in accordance with such dividend policies as
it may adopt from time to time, the provisions of this
Agreement and of the Delaware Act;
(vi) to purchase, hold and dispose of Eligible Securities
in accordance with the Base Investment Guidelines and the
Additional Investment Guidelines;
(vii) to establish, when a record date is not
otherwise established by this Agreement, a record date with
respect to all actions to be taken hereunder that require a
record date to be established, including with respect to
allocations, dividends and voting rights;
(viii) to establish or set aside in their discretion
any reserve or reserves for contingencies and for any other
proper Company purpose;
(ix) to redeem or repurchase on behalf of the Company
Securities which may be so redeemed or repurchased in
accordance with the provisions of this Agreement;
17
(x) to appoint (and dismiss from appointment)
attorneys and agents on behalf of the Company, and employ
(and dismiss from employment) any and all Persons providing
legal, accounting or financial services to the Company, or
such other employees or agents as the Directors deem
necessary or desirable for the management and operation of
the Company;
(xi) to incur and pay all expenses and obligations
incident to the operation and management of the Company,
including, without limitation, the services referred to in
the preceding paragraph, taxes, interest, rent and
insurance;
(xii) to acquire and enter into any contract of
insurance necessary or desirable for the protection or
conservation of the Company and its assets or otherwise in
the interest of the Company as the Board of Directors shall
determine;
(xiii) to open accounts and deposit, maintain and
withdraw funds in the name of the Company in banks, savings
and loan associations, brokerage firms or other financial
institutions, which bank accounts if opened prior to
December 31, 1997, may be opened by any Officer that is
authorized to do so by a written consent of any Director;
(xiv) to bring and defend on behalf of the Company
actions and proceedings at law or equity before any court
or governmental, administrative or other regulatory agency,
body or commission or otherwise;
(xv) to prepare and cause to be prepared reports,
statements and other relevant information for distribution
to Securityholders or filing with appropriate regulatory
authorities as may be required or determined to be
appropriate by the Board of Directors from time to time;
(xvi) to prepare and file all necessary returns and
statements and pay all taxes, assessments and other impositions
applicable to the assets of the Company;
(xvii) to execute all other documents or instruments,
perform all duties and powers and do all things for and
on behalf of the Company in all matters necessary or
desirable or incidental to the foregoing; and
(xviii) to purchase and maintain on behalf of the
Company insurance to protect any Director or Officer
against any liability asserted against him or her, or
incurred by him or her, arising out of his or her status as
such.
(e) Subject to the provisions of Section 6.2, the
expression of any power or authority of the Board of Directors
shall not in any way limit or exclude any other power or
authority which is not specifically or expressly set forth in
this Agreement.
(f) The determination as to any of the following
matters, made in good faith by or pursuant to the direction of
the Board of Directors consistent with this Agreement and in the
absence of actual receipt of an improper benefit in money,
property or services or active and
18
deliberate dishonesty established by a court, shall be final and
conclusive and shall be binding upon the Company and every
Securityholder: the amount of the net income of the Company for
any period and the amount of assets at any time legally available
for the payment of dividends, redemption of its Securities or the
payment of other distributions on its Securities; the amount of
paid-in surplus, net assets, other surplus, annual or other net
profit, net assets in excess of capital, undivided profits or
excess of profits over losses on sales of assets; the amount,
purpose or time of creation of any gain or loss on disposition of
securities; the amount, purpose, time of creation, increase or
decrease, alteration or cancellation of any reserves or charges
and the propriety thereof (whether or not any obligation of
liability for which such reserves or charges shall have been
created shall have been paid or discharged); the fair value, or
any sale, bid or asked price to be applied in determining the
fair value, of any asset owned or held by the Company; and any
matters relating to the acquisition, holding and disposition of
any assets by the Company.
(g) The Board of Directors shall cause the Company to
use its available funds, after satisfaction of the Company's
liabilities and other obligations and distributions to
Securityholders in accordance with this Agreement (including upon
the occurrence of a Shift Event), to purchase securities that are
Eligible Securities in accordance with the Base Investment
Guidelines and the Additional Investment Guidelines set forth in
Section 6.2(b).
Section 6.2 Limits on Board of Directors' Powers.
(a) Anything in this Agreement to the contrary
notwithstanding, the Board of Directors shall not cause or permit
the Company to, and the Company shall not:
(i) incur any indebtedness for borrowed money;
(ii) except for securities purchased by the Company
from the Branch pursuant to the Portfolio Securities
Purchase Agreement on the Closing Date under the Purchase
Agreement relating to the Series A Preferred Securities,
purchase any securities or other assets from the Bank or
any Affiliate of the Bank;
(iii) possess Company Property for other than a Company
purpose;
(iv) admit a Person as a Securityholder, except as
expressly provided in this Agreement;
(v) perform any act that would subject any Preferred
Securityholder to liability for (A) the debts, obligations
and liabilities of the Company in any jurisdiction, except
as expressly provided in this Agreement, or (B) a tax on
"unrelated business taxable income" under the Code as a
consequence of such act; or
(vi) engage in any activity that is not consistent
with the purposes of the Company, as set forth in Section
3.1.
(b) Anything in this Agreement to the contrary
notwithstanding, the Board of Directors shall not cause, or
permit, the Company to take any of the following actions (such
19
limitations being referred to herein as the "Base Investment
Guidelines"):
(i) acquire any assets other than Eligible Securities;
(ii) except to fund payment of any distribution with
respect to the Common Securities pursuant to Section
7.3(c)(i)(C) and the Special Dividend pursuant to Section
7.3(c)(ii), dispose of securities owned by the Company
prior to their maturity without the consent of a majority
of the Independent Directors; or
(iii) dispose of securities owned by the Company
primarily for the purpose of realizing gain or decreasing
loss on such securities.
(c) In addition, at any time that the Series A
Preferred Securities are not registered with the Commission under
Section 12(g) of the Exchange Act, the Board of Directors shall
not cause, or permit, the Company to acquire any assets other
than Agency Securities or Restricted Short-Term Instruments or to
engage in any other financial transactions and shall cause the
Company:
(i) to apply the cash proceeds from repayments of the
principal amounts of securities as follows:
(A) such cash proceeds shall be held in Restricted
Short-Term Instruments, unless at any time the
aggregate amount invested in such Instruments
equals or exceeds $40,000,000;
(B) On the first Business Day after the aggregate
amount invested in such Restricted Short-Term
Instruments reaches $40,000,000, the Board of
Directors shall cause the Company to solicit
offers to sell to the Company securities having
the characteristics described in paragraph (D)
below from at least two but no more than five
nationally recognized brokers or dealers that make
active markets in such securities. The offer which
gives the highest yield shall be chosen, and the
securities shall be purchased prior to the close
of business on such Business Day.
(C) If there are not at least two offers of securities
meeting the criteria set forth in paragraph
(D)(1)-(3) below, the cash proceeds from
repayments of principal amounts of securities then
invested in Restricted Short-Term Instruments and
the interest thereon (together with the proceeds
of any further repayments of principal of
securities) shall continue to be held in
Restricted Short-Term Instruments, and offers will
be solicited on each Business Day thereafter as
provided in paragraph (B) above, until such cash
proceeds are invested in securities meeting the
criteria set forth in paragraph (D) below in
accordance with the procedures set forth in
paragraph (B) above and this paragraph (C).
20
(D) The securities to be purchased at any time when
the aggregate proceeds from repayments of the
principal amounts of securities and the interest
thereon equal $40,000,000 shall have the following
characteristics:
(1) They shall be the type of Agency Securities
(Agency ARMs, Fixed-rate REMICs or Floating-rate
REMICs) whose representation (as a percentage of
the aggregate unpaid principal amount) in the
overall portfolio of securities held by the
Company at such time (after giving effect to the
repayment of the principal amount of the
securities the proceeds of which constitute the
amount to be reinvested) has declined the most
from its representation in the Initial Portfolio
(as described in the section entitled "Description
of the Initial Portfolio" in the Offering
Memorandum); provided that in the case of
Floating-rate REMICs, the coupons thereof shall
reset periodically based solely on a London
inter-bank offered rate.
(2) Based on (a) the modeling methodology used for the
valuation of the Initial Portfolio as described in
the section entitled "Description of the Initial
Portfolio" in the Offering Memorandum and (b) the
prepayment speed assumptions reported on Bloomberg
Financial Markets (or such other screen-based
financial information provider which has replaced
Bloomberg Financial Markets as the most commonly
used financial information provider as a source by
brokers and dealers in mortgage-backed
securities) on such Business Day, the weighted
average life of such securities shall be:
(a) in the case of Fixed-rate REMICs, the period
of time that is the closest to 10.8 years
less that having elapsed from December 5,
1997 through such Business Day;
(b) in the case of Floating-rate REMICs and
Agency ARMs, the period such that, following
the purchase of new Floating-rate REMICs or
Agency ARMs, as the case may be, the
aggregate weighted average life of all
Floating-rate REMICs or Agency ARMs, as the
case may be, held by the Company is the
closest to the initial aggregate weighted
average life of all Floating-rate REMICs or
Agency ARMs, as the case may be, in the
Initial Portfolio; provided that the weighted
average life of any such Floating-rate REMICs
and Agency ARMs shall not exceed the period
of time from such Business Day through
December 5, 2007.
(3) The yield shall be the highest yield offered on
securities meeting the foregoing three criteria
and available in the amount to be invested; and
21
(ii) to apply payments of interest amounts received in
respect of the securities exclusively to acquire Restricted
Short-Term Instruments and to dispose of such Restricted
Short-Term Instruments only at such time and in such
amounts necessary for (A) the payment of dividends declared
by the Board of Directors with respect to the Series A
Preferred Securities or the Common Securities (including a
Special Dividend as described in, and pursuant to, Section
7.3(c)(ii)) and (B) the redemption of Common Securities
pursuant to Sections 7.3(c)(i)(C).
The guidelines set forth in this sub-section (c) are
herein referred to as the "Additional Investment Guidelines".
(d) Anything in this Agreement to the contrary
notwithstanding, the Board of Directors shall not cause, or
permit, the Company to take any of the following actions, unless
such action shall have received the prior approval of both a
majority of the Board of Directors and a majority of the
Independent Directors:
(i) the issuance of any class or series of equity
securities of the Company ranking on a parity with the
Series A Preferred Securities as to dividend rights or as
to rights upon dissolution, liquidation or winding up;
(ii) any material amendment to or material modification
of the Trust Agreement;
(iii) other than during a Shift Period after a shift
in dividend preference pursuant to Section 7.3(c)(i)(A),
the payment of dividends on the Common Securities in any
Fiscal Year in an amount exceeding the amount by which the
net income of the Company (determined in accordance with
GAAP) for such Fiscal Year exceeds the stated dividends on
the Series A Preferred Securities scheduled to be paid
during such Fiscal Year on the Series A Preferred
Securities irrespective of whether dividends on the Series
A Preferred Securities are in fact declared and paid;
(iv) other than during a Shift Period, redemption or
repurchase of Common Securities without the concurrent redemption
of a like proportion (based upon the aggregate redemption price)
of outstanding Series A Preferred Securities unless (x) the
General Secretariat of the French Banking Commission shall
have approved such redemption or repurchase and (y) each
Rating Agency then rating the Series A Preferred Securities
shall have informed the Company that the redemption or
repurchase of such Common Securities would not adversely
affect its initial rating of the Series A Preferred
Securities;
(v) any modification of the Base Investment Guidelines or
the Additional Investment Guidelines;
(vi) payment of dividends on the Series A Preferred
Securities other than out of net income of the Company,
determined without regard to gains and losses resulting
from any disposition of securities owned by the Company, or
out of contributions by the
22
Bank to the capital of the Company; and
(vii) other than during a Shift Period, disposition of
any security owned by the Company prior to its maturity.
Section 6.3 Specific Authorization concerning the
Operating Documents. The Company and any Director or Officer may
enter into and perform the Operating Documents without any
further act, or approval, of any Securityholder, Director,
Officer or other Person, notwithstanding any other provisions of
this Agreement, the Delaware Act or other applicable law, rule or
regulation. The authorization set forth in the preceding sentence
shall not be deemed a restriction on the power of any Director or
any Officer to enter into any agreement on behalf of the Company.
Section 6.4 Reliance by Third Parties. Persons dealing
with the Company are entitled to rely conclusively upon the power
and authority of the Board of Directors and of any duly appointed
and acting Officers. In dealing with the Board of Directors or
any Officer duly appointed and acting as set forth in this
Agreement or in the By-Laws, no Person shall be required to
inquire into the authority of the Board of Directors or any such
Officer to bind the Company. Persons dealing with the Company are
entitled to rely conclusively on the power and authority of the
Board of Directors or any Officer duly appointed and acting as
set forth in this Agreement or in the By-Laws.
Section 6.5 No Management by Any Preferred
Securityholders. Except as otherwise expressly provided herein,
no Preferred Securityholder, in its capacity as a Preferred
Securityholder of the Company, shall take part in the day-to-day
management, operation or control of the business and affairs of
the Company. The Preferred Securityholders, in their capacity as
Preferred Securityholders of the Company, shall not be agents of
the Company and shall not have any right, power or authority to
transact any business in the name of the Company or to act for or
on behalf of or to bind the Company.
Section 6.6 Business Transactions of the Common
Securityholder with the Company. Subject to Sections 6.1 and 6.2
of this Agreement and applicable law, as long as a Registration
Statement is effective a Common Securityholder and any of its
Affiliates may hold deposits of, and enter into business
transactions with, the Company and, subject to applicable law,
shall have the same rights and obligations with respect to any
such matters as Persons who are not a Common Securityholder or
Affiliates thereof.
Section 6.7 Outside Businesses. Any Director, Officer,
Securityholder or Affiliate thereof may engage in or possess an
interest in other business ventures of any nature or description,
independently or with others, similar or dissimilar to the
business of the Company, and the Company and the Securityholders
shall have no rights by virtue of this Agreement in and to such
independent ventures or the income or profits derived therefrom,
and the pursuit of any such venture, even if competitive with the
business of the Company, shall not be deemed wrongful or
improper. No Director, Officer, Securityholder or Affiliate
thereof shall be obligated to present any particular investment
opportunity to the Company even if such opportunity is of a
character that, if presented to the Company, could be taken by
the Company,
23
and any Director, Officer, Securityholder or Affiliate thereof
shall have the right to take for its own account (individually or
as a partner or fiduciary) or to recommend to others any such
particular investment opportunity.
Section 6.8 Duties of Independent Directors. Except
with respect to enforcement of the Contingent Support Agreement,
the Independent Directors shall, in assessing the benefit to the
Company of any proposed action requiring hereunder or under the
By-Laws their affirmative vote take into account the interests of
both the Common Securityholders and the Preferred
Securityholders, including, without limitation, the Series A
Preferred Securityholders. In considering the interests of the
Preferred Securityholders, including without limitation the
Series A Preferred Securityholders, the Independent Directors
shall owe the Preferred Securityholders the same duties which the
Independent Directors owe to the Common Securityholders.
ARTICLE VII
COMMON SECURITIES AND PREFERRED SECURITIES
Section 7.1 Common Securities and Preferred Securities.
(a) The Securities of the Company shall be divided
into two classes, Common Securities and Preferred Securities.
There is hereby authorized for issuance and sale of Common
Securities having an aggregate liquidation preference of
$1,500,000,000. The Branch, as the initial Common Securityholder,
shall be deemed to be issued one (1) Common Security upon its
designation as the Common Securityholder pursuant to Section 2.2
of this Agreement. The Common Securityholder shall be deemed to
be issued one additional Common Security for each $10,000 in
total value of cash or property (as determined in good faith by
the Board of Directors) contributed by the Common Securityholder
to the Company pursuant to Section 4.2 and identified on Schedule
7.1 hereto.
(b) No Common Securityholders or Preferred
Securityholders shall be entitled as a matter of right to
subscribe for or purchase, or have any preemptive right with
respect to, any part of any new or additional issue of Preferred
Securities whatsoever, whether now or hereafter authorized and
whether issued for cash or other consideration or by way of a
dividend or other distribution.
(c) A Preferred Security shall be represented by the
corresponding Preferred Certificate. Common Securities shall not
be evidenced by any certificate or other written instrument, but
shall only be evidenced by this Agreement.
(d) Upon issuance of the Preferred Securities as
provided in this Agreement, the Preferred Securities so issued
shall be deemed to be validly issued, fully paid and
nonassessable.
24
(e) So long as any Preferred Securities are outstanding:
(i) the Branch and/or one or more Affiliates of the Bank
shall be the sole Common Securityholder;
(ii) the Common Securityholders shall not take any
action to dissolve, liquidate or wind up the Company unless
the Bank is also being dissolved, liquidated or wound up.
(f) Each Preferred Securityholder and each Common
Securityholder agree that the Company and each Securityholder
will treat the Preferred Securityholders as holders of the
Preferred Securities for all purposes and not as holders of an
interest in the Bank or any other Person.
Section 7.2 General Provisions Regarding Preferred
Securities.
(a) There is hereby authorized for issuance and sale
of Preferred Securities having an aggregate liquidation
preference of $1,500,000,000. The specific designation, dividend
rate, liquidation preference, redemption terms, voting rights,
and other powers, preferences and special rights and limitations
of the Series A Preferred Securities are set forth in this
Agreement. Subject to the express provisions of this Agreement
and of the By-Laws, the Board of Directors shall have authority
to fix the terms of each other series of Preferred Securities
that may be issued by the Company by adopting in accordance with
the provisions of this Agreement a Certificate of Designation
relating to each such other series of Preferred Securities that
shall set forth the preferences and other terms of such series,
including without limitation the following: (1) the title and
stated value of such series; (2) the number of securities
of such series offered and the liquidation preference per
security of such series; (3) the dividend rate(s), period(s),
and/or payment date(s) or method(s) of calculation thereof
applicable to such series; (4) whether such class or series of
Preferred Securities is cumulative or not and, if cumulative, the
date from which dividends on such series shall accumulate; (5)
the provision for a sinking fund, if any, for such series; (6)
the provision for redemption, if applicable, of such series; (7)
any voting rights of such series; (8) the relative ranking and
preferences of such series as to dividend rights and rights upon
dissolution, liquidation or winding up of the affairs of the
company; (9) any limitations on issuance of any series of
Preferred Securities ranking senior to or on a parity with such
series of Preferred Securities as to dividend rights and rights
upon dissolution, liquidation or winding up of the affairs of the
Company; and (10) any other specific terms, preferences, rights,
limitations or restrictions of such series. Upon such adoption by
the Board of Directors, each such Certificate of Designation
shall thereupon be incorporated into and deemed to be part of
this Agreement.
(b) All Preferred Securities shall rank senior to all
other Securities in respect of the right to receive dividends or
other distributions and the right to receive payments out of the
assets of the Company upon voluntary or involuntary dissolution,
winding-up or termination of the Company in accordance with the
provisions hereof (subject to the consequences of a Shift Event
occurring as provided in Section 7.3 or in any Certificate of
Designation). All Preferred Securities redeemed, purchased or
otherwise acquired by the Company shall be canceled. The
25
Preferred Securities shall be issued in registered form only.
(c) Neither the Bank nor any Affiliate of the Bank
shall have the right to vote or give or withhold consent with
respect to any Preferred Security owned by it, directly or
indirectly, and, for purposes of any matter upon which the
Preferred Securityholders may vote or give or withhold consent as
provided in this Agreement, Preferred Securities owned by the
Bank or any Affiliate of the Bank shall be treated as if they
were not outstanding.
(d) The Company shall, together with each payment of
dividends on Preferred Securities, mail a notice to each Owner
stating that (i) for so long as any Preferred Securities are
outstanding, no Person may acquire any Preferred Securities
unless such Person at the date of acquisition is a QIB and (ii)
any Person who acquires a Preferred Security in violation of the
foregoing clause may be required by the Company to sell such
Preferred Security or its interest therein to a Person that is a
QIB. The Company has the right, at any time, to request that any
Owner of Series A Preferred Securities certify that, as of the
time it acquired the Series A Preferred Securities or an interest
therein, such Person was a QIB.
(e) The payment of dividends and payments of
distributions by the Company in liquidation or on redemption in
respect of Preferred Securities shall not be guaranteed by the
Common Securityholder; provided, however, that the foregoing
shall not be interpreted to prevent the Common Securityholder
from entering into and performing the Contingent Support
Agreement.
Section 7.3 Series A Preferred Securities.
(a) Designation. There shall hereby be designated as a
series of Preferred Securities the Noncumulative Preferred
Securities, Series A (the "Series A Preferred Securities"). The
Series A Preferred Securities shall have a liquidation preference
of $10,000 per Security and $500,000,000 in the aggregate for all
Series A Preferred Securities.
(b) Dividends.
(i) Dividend Rights and Payment Dates. Series A
Preferred Securityholders shall be entitled to receive, when, as
and if declared by the Board of Directors, out of the Company's
net income, determined without regard to capital gains or losses,
and out of contributions by the Bank to the capital of the
Company, cash dividends from the date of original issue of the
Series A Preferred Securities payable on a noncumulative basis as
follows: through (A) December 5, 2007, semi-annually in arrears
on the fifth day of June and December of each year (or if such
day is not a Business Day on the next succeeding Business Day),
commencing June 5, 1998, and (B) thereafter, quarterly in arrears
on the third Wednesday of March, June, September and December of
each year (or if such day is not both a Business Day and a London
Business Day on the next succeeding day that is both a Business
Day and a London Business Day). "Series A Dividend Payment Date"
refers to each date on which dividends are payable in accordance
with the preceding sentence, without reference, in the case of
clause (A) above, to the parenthetical appearing therein.
Dividends payable on each Series A Dividend Payment Date will be
calculated as provided in (ii) below and will accrue from and
26
including the immediately preceding Series A Dividend Payment
Date (or from and including December 5, 1997 with respect to the
dividend payable June 5, 1998) to but excluding the relevant
Dividend Payment Date or date fixed for redemption ("Redemption
Date"), as the case may be (each such period, a "Series A
Dividend Period").
(ii) Dividend Rates. With respect to each Series A
Dividend Period from December 5, 1997 to December 5, 2007,
dividends will be calculated on the liquidation preference of
such Securities at a fixed rate of 7.738% per annum, calculated
on the basis of a 360-day year of twelve 30-day months. Any
dividend paid with respect to Series A Preferred Securities on
the Business Day following the relevant Series A Dividend Payment
Date pursuant to the provisions of Section 7.3(b)(i) shall be
paid without adjustment, interest or further payment as a result
of the delay. With respect to each Series A Dividend Period
commencing on or after December 5, 2007, dividends will be
calculated on the liquidation preference of the Series A
Preferred Securities, on a weekly basis for each week in such
Series A Dividend Period, from and including the LIBOR Reset Date
falling in such week to but excluding the LIBOR Reset Date
falling in the next succeeding week (each such period, a "Weekly
Dividend Period"), at a rate per annum equal to 2.8% plus
One-Week LIBOR determined on the related LIBOR Determination Date
for such Weekly Dividend Period. The dividend in respect of each
Weekly Dividend Period will be calculated on the basis of a
360-day year and the actual number of days in such Weekly
Dividend Period. "LIBOR Reset Date" means the Wednesday of each
week falling in a Series A Dividend Period commencing on or after
December 5, 2007. Each Series A Dividend Payment Date commencing
December 5, 2007 will also be a LIBOR Reset Date.
(iii) Recipients. Each declared dividend shall be
payable to holders of record as they appear on the securities
register of the Company on the applicable record date for the
Series A Preferred Securities, which will be (i) for so long as
the Series A Preferred Securities are issued as Book-Entry
Preferred Certificates, one Business Day prior to the relevant
Series A Dividend Payment Date, and (ii) for so long as the
Series A Preferred Securities are issued in certificated, fully
registered form, the fifteenth day (whether or not a Business
Day) prior to the relevant Series A Dividend Payment Date.
(iv) LIBOR Calculations. The Calculation Agent will
calculate One-Week LIBOR for each Weekly Dividend Period on the
second London Business Day before the applicable LIBOR Reset Date
at the beginning of such Weekly Dividend Period (a "LIBOR
Determination Date") and will make such rate calculation
available upon request to Series A Preferred Securityholders. On
each LIBOR Determination Date, the Calculation Agent will
determine One-Week LIBOR as follows:
(A) One-Week LIBOR will be determined on the basis of
the offered rates for one-week deposits in U.S. dollars of not
less than U.S.$1,000,000, commencing on the second London
Business Day immediately following such LIBOR Determination Date,
which appears on Telerate Page 3750 as of approximately 11:00
a.m., London time, on such LIBOR Determination Date. If no rate
appears on Telerate Page 3750, One-Week LIBOR for such LIBOR
Determination Date will be determined in accordance with the
provisions of paragraph (B) below.
27
(B) With respect to a LIBOR Determination Date on
which no rate appears on Telerate Page 3750 as of approximately
11:00 a.m., London time, the Calculation Agent shall on such
LIBOR Determination Date request the principal London offices of
each of four major reference banks in the London interbank market
selected by the Calculation Agent to provide the Calculation
Agent with a quotation of the rate at which one-week deposits in
U.S. dollars, commencing on the second London Business Day
immediately following such LIBOR Determination Date, are offered
by it to prime banks in the London interbank market as of
approximately 11:00 a.m., London time, on such LIBOR
Determination Date and in a principal amount equal to an amount
of not less than U.S.$1,000,000 that is representative for a
single transaction in such market at such time. If at least two
such quotations are provided, One-Week LIBOR for such LIBOR
Determination Date will be the arithmetic mean of such quotations
as calculated by the Calculation Agent. If fewer than two
quotations are provided, One-Week LIBOR for such LIBOR
Determination Date will be the arithmetic mean of the rates
quoted as of approximately 11:00 a.m., New York City time, on
such LIBOR Determination Date by three major banks in The City of
New York selected by the Calculation Agent (after consultation
with the Company) for loans in U.S. dollars to leading European
banks, having a one-week maturity commencing on the second London
Business Day immediately following such LIBOR Determination Date
and in a principal amount equal to an amount of not less than
U.S.$1,000,000 that is representative for a single transaction in
such market at such time; provided, however, that if the banks
selected as aforesaid by the Calculation Agent are not quoting as
mentioned in this sentence, One-Week LIBOR for such LIBOR
Determination Date will be One-Week LIBOR determined with respect
to the immediately preceding LIBOR Determination Date.
All percentages resulting from any calculation
regarding dividends on the Series A Preferred Securities will be
rounded to the nearest one hundred-thousandth of a percentage
point, with five-one millionths of a percentage point rounded
upwards (e.g., 9.876545% (or .09876545) would be rounded to
9.87655% (or .0987655)), and all amounts used in or resulting
from such calculation will be rounded, in the case of United
States dollars, to the nearest cent.
(v) Dividends not Cumulative. The right of Series A
Preferred Securityholders to receive dividends is noncumulative.
Accordingly, if, for any reason, the Board of Directors does not
declare a dividend payable in respect of any Series A Dividend
Period, Series A Preferred Securityholders will have no right to
receive a dividend in respect of such Series A Dividend Period,
and the Company will have no obligation to pay a dividend in
respect of such Series A Dividend Period, whether or not
dividends are authorized and declared payable or paid in respect
of any future Series A Dividend Period, except as otherwise
expressly provided in Section 7.3(c)(i)(B).
(vi) Parity and Junior Securities. If any Series A
Preferred Securities are outstanding:
(A) no dividends or other distributions shall be
declared or paid or set apart for payment on any Parity
Securities in any Series A Dividend Period unless full
dividends or prorated dividends (in the case of partial
dividends on Parity Securities, as calculated
28
pursuant to the next succeeding sentence) have been or
contemporaneously are declared and paid, or declared and a
sum sufficient for the payment thereof is set apart for
such payments on the Series A Preferred Securities for the
immediately preceding Series A Dividend Period except as
otherwise expressly provided in the next succeeding
sentence or Section 7.3(c)(i). When sufficient funds are
not available to pay dividends in full (or a sum sufficient
for such full payment is not so set apart) for any Series A
Dividend Period upon the Series A Preferred Securities and
any Parity Securities, all dividends declared on the Series
A Preferred Securities and Parity Securities shall only be
declared pro rata based upon the respective amounts that
would have been paid on the Series A Preferred Securities
and any Parity Securities had dividends been declared in
full, except as otherwise expressly provided in Section
7.3(c)(i).
(B) except as otherwise expressly provided in Section
7.3(c)(i), no dividends or other distributions shall be
declared or paid or set apart for payment on any Junior
Securities with respect to any period of time included in
any Series A Dividend Period unless full dividends have
been or contemporaneously are declared and paid, or
declared and a sum sufficient for the payment thereof is
set apart for such payment on the Series A Preferred
Securities for the then-current Series A Dividend Period.
(vii) Dividend Preference vis-a-vis Common Securities
and other Junior Securities. In addition to the restriction set
forth in Section 7.3(b)(vi) and except as otherwise expressly
provided in Section 7.3(c), the Company shall not declare, pay or
set apart funds for any dividends or other distributions with
respect to any Common Securities or other Junior Securities or
repurchase, redeem or otherwise acquire, or set apart funds for
repurchase, redemption or other acquisition of, any Common
Securities or other Junior Securities through a sinking fund or
otherwise, unless and until (i) full dividends on the Series A
Preferred Securities for the two most recent preceding Series A
Dividend Periods (or such lesser number of Series A Dividend
Periods during which Series A Preferred Securities have been
outstanding) are declared and paid or declared and a sum
sufficient for payment has been paid over to the dividend
disbursing agent for payment of such dividends and (ii) the
Company has declared a cash dividend on the Series A Preferred
Securities at the annual dividend rate for the then-current
Series A Dividend Period, and sufficient funds have been paid
over to the dividend disbursing agent for the payment of such
cash dividend for such then-current Series A Dividend Period;
provided, however, that notwithstanding the foregoing
restrictions the Company may repurchase or redeem Common
Securities pursuant to Section 6.2(d)(iv).
(viii) Senior Securities. No dividend shall be paid or
set aside for Series A Preferred Securityholders for any Series A
Dividend Period unless full dividends have been paid or set aside
for the holders of each series of equity securities, if any,
ranking prior to the Series A Preferred Securities as to
dividends for such Series A Dividend Period.
(ix) Registration under the Exchange Act. During any
period following May 31, 1998 in which a Registration Statement
is not effective, the Company will pay as liquidated damages an
additional dividend on the liquidation preference of the Series A
Preferred Securities at a rate of 0.25% per annum from and
including the date on which the Registration
29
Statement ceases to be effective (or May 31, 1998, if it is not
effective on such date) to but excluding the date on which a
Registration Statement again becomes effective. Any additional
dividend that accrues pursuant to the foregoing sentence during a
Series A Dividend Period shall be payable on the Dividend Payment
Date that ends such Series A Dividend Period, in the same manner
and subject to the same limitations and conditions as the regular
dividends on the Series A Preferred Securities for such Series A
Dividend Period pursuant to this Section 7.3(b).
(c) Shift Event. (i) Notwithstanding anything to the
contrary in this Agreement:
(A) if during a Shift Period, an annual meeting of
shareholders of the Bank fails to declare dividends on the Bank's
common stock with respect to the then-most recent fiscal year or
the Board of Directors of the Bank announces that it does not
intend to propose to the shareholders' meeting the declaration of
a dividend on the Bank's common stock with respect to the
then-most recent fiscal year or the then-current fiscal year, the
dividend preference set forth in Section 7.3(b)(vi) shall be
modified such that all net income of the Company will be
distributed to the Common Securityholder (a "shift in dividend
preference") unless the Common Securityholder (subject to the
prior approval of the General Secretariat of the French Banking
Commission), causes the Company to pay all or part of a dividend
on the Series A Preferred Securities for such Series A Dividend
Period;
(B) during or after termination of a Shift Period, if
the Bank declares a dividend with respect to any capital stock of
the Bank constituting Tier 1 capital, the Company shall pay, to
the extent the Company shall have funds available therefor in
accordance with the provisions of this Agreement and applicable
law, and whether or not declared by the Board of Directors,
dividends on the Series A Preferred Securities with respect to
the Series A Dividend Period during which such declaration is
made and the two succeeding Series A Dividend Periods; and
(C) within ten Business Days after the occurrence of a
Shift Event as determined in accordance with subsection (c)(iv)
below, the Company shall pay, whether or not any action is taken
by the Board of Directors, in redemption of all but one Common
Security outstanding, to the extent the Company shall have funds
legally available therefor, an amount equal to $10,000 per Common
Security being redeemed at such time payable either in cash or in
securities owned by the Company.
(ii) If the Bank's Tier 1 risk-based capital ratio as
shown on the latest Capital Adequacy Certificate declines below
the minimum percentage required at that time by French banking
regulations, all of the Company's net assets remaining after the
distribution is made with respect to the Common Securities
pursuant to Section 7.3(c)(i)(C) (other than assets having a
market value of $41,200,000) will be distributed, whether or not
such distribution is declared by the Board of Directors, with
respect to the Common Securities (the "Special Dividend") on the
Business Day immediately succeeding the date of delivery to the
Company of such Capital Adequacy Certificate.
(iii) the allocations of profits, gains and losses
specified in Section 4.4 shall be
30
deemed amended to the extent necessary to permit payment of the
amounts specified in subsections (i) and (ii) of this Section
7.3(c).
(iv) (A) For purposes of determining when a Shift
Event has occurred as a result of the Bank's total risk-based
capital ratio or Tier 1 risk-based capital ratio falling below
the minimum percentages required by French banking regulations,
(I) no later than the tenth Business Day after each date on which
the Bank first publishes its audited annual financial statements
or its semi-annual financial statements (whether audited or
unaudited), the Bank shall deliver to the Company a certificate
(a "Capital Adequacy Certificate") setting forth the Bank's total
risk-based capital ratio and Tier 1 risk-based capital ratio as
of the date of the balance sheet included in such financial
statements, (II) the Bank's calculations of such ratios shall be
deemed to be correct absent manifest error, and (III) if a
Capital Adequacy Certificate shows that the Bank's total-risk
based capital ratio or Tier 1 risk-based capital ratio is less
than the minimum then required by French banking regulations, the
related Shift Event shall be deemed to occur at the opening of
business on the Business Day immediately succeeding the date of
delivery of such Capital Adequacy Certificate to the Company.
(B) The Company shall mail a written notice of the
occurrence of a Shift Event, and of termination of any Shift
Period, to each holder of record of Series A Preferred Securities
at the address for such holder as shown on the Company's register
of holders promptly and in any event within five Business Days
after such occurrence or termination.
(d) Redemption Terms. (i) The Series A Preferred
Securities shall not be redeemable prior to December 5, 2007
(except upon the occurrence of a Regulatory Event as provided in
Section 7.3(d)(iii)). On or after such date, the Series A
Preferred Securities shall be redeemable at the option of the
Company, in whole or in part, at any time or from time to time
(except during a Shift Period following the payment by the
Company of a Special Dividend to the Common Securityholder
pursuant to Section 7.3(c)(ii)) on not less than 30 nor more than
60 days' notice by mail, at a redemption price of $10,000 per
security, plus unpaid dividends thereon for the then-current
Series A Dividend Period to the Redemption Date and any declared
and unpaid dividends in respect of prior Series A Dividend
Periods, without interest, but without accumulation of any
undeclared and unpaid dividends for any prior Series A Dividend
Period. Any such redemption is subject to applicable regulatory
and other requirements including receipt of the prior approval of
the General Secretariat of the French Banking Commission. If the
Company has sufficient funds to pay dividends on any Series A
Preferred Securities but dividends are unpaid, no Series A
Preferred Securities shall be redeemed unless all outstanding
Series A Preferred Securities are redeemed and the Company shall
not purchase or otherwise acquire any Series A Preferred
Securities; provided, however, that the Company may purchase or
acquire Series A Preferred Securities pursuant to a purchase or
exchange offer made on the same terms to all Preferred
Securityholders.
(ii) In the event that fewer than all of the
outstanding Series A Preferred Securities are to be redeemed, the
number of Series A Preferred Securities to be redeemed shall be
determined by the Board of Directors, and the securities to be
redeemed shall be determined by lot or pro rata as may be
determined by the Board of Directors in its sole discretion to be
31
equitable, provided that such method satisfies any applicable
requirements of any securities exchange on which the Series A
Preferred Securities may then be listed and, if the Series A
Preferred Securities are then held by DTC (or its nominee) in the
form of a global security, any applicable requirements of DTC.
The Company shall promptly notify the registrar and transfer
agent for the Series A Preferred Securities in writing of the
Series A Preferred Securities selected for redemption and, in the
case of any Series A Preferred Securities selected for partial
redemption, the liquidation preference thereof to be redeemed.
(iii) (A) Except during a Shift Period following the
payment by the Company of a Special Dividend to the Common
Securityholder pursuant to Section 7.3(c)(ii), the Company will
also have the right at any time prior to December 5, 2007, upon
the occurrence of a Regulatory Event, to redeem the Series A
Preferred Securities in whole (but not in part) at a redemption
price equal to the higher of $10,000 per security or the
Make-Whole Amount per security, plus unpaid dividends thereon for
the then-current Series A Dividend Period and any declared and
unpaid dividends in respect of prior Series A Dividend Periods,
without interest, but without accumulation of any undeclared and
unpaid dividends for any prior Series A Dividend Period.
(B) For purposes of this Section 7.3(d)(iii):
the "Make-Whole Amount" shall be equal to the amount
as determined by the Calculation Agent, equal to the
sum of the present value of the liquidation preference
of the Series A Preferred Securities at December 5,
2007, together with the present values of scheduled
non-cumulative dividend payments from the
Regulatory Event Redemption Date to December 5, 2007
(the "Remaining Life"), in each case discounted to the
Regulatory Event Redemption Date on a semi-annual
basis (assuming a 360-day year consisting of 30-day
months) at the Adjusted Treasury Rate;
"Adjusted Treasury Rate" means, with respect to any
Regulatory Event, Redemption Date, (I) the Treasury
Rate plus (II) 0.25%;
"Treasury Rate" means (i) the yield, under the heading
which represents the average for the immediately prior
week, appearing in the most recently published
statistical release designated "H. 15(519)" or any
successor publication which is published weekly by the
Federal Reserve and which establishes yields on
actively traded United States Treasury securities
adjusted to constant maturity under the caption
"Treasury Constant Maturities," for the maturity
corresponding to the Remaining Life (if no maturity is
within three months before or after the Remaining
Life, yields for the two published maturities most
closely corresponding to the Remaining Life shall be
determined and the Treasury Rate shall be interpolated
or extrapolated from such yields on a straight-line
basis, rounding to the nearest month) or (ii) if such
release (or any successor release) is not published
during the week preceding the calculation date or does
not contain such yields, the rate per annum equal to
the quarterly equivalent yield to maturity
32
of the Comparable Treasury issue, calculated using a
price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the
Comparable Treasury Price for such Regulatory Event
Redemption Date. The Treasury Rate shall be calculated
on the third Business Day preceding the Regulatory
Event Redemption Date;
"Comparable Treasury Issue" means, with respect to any
Regulatory Event Redemption Date, the United States
Treasury security selected by the Company as having a
maturity comparable to the Remaining Life that would
be utilized, at the time of selection and in
accordance with customary financial practice, in
pricing new issues or corporate debt securities of
comparable maturity to the Remaining Life. If no
United States Treasury security has a maturity which
is within a period from three months before to three
months after December 5, 2007, the two most closely
corresponding United States Treasury securities shall
be used as the Comparable Treasury issue, and the
Treasury Rate shall be interpolated or extrapolated on
a straight-line basis, rounding to the nearest month
using such securities.
"Comparable Treasury Price" means (A) the average of
five Reference Treasury Dealer Quotations of such
Regulatory Event Redemption Date, after excluding the
highest and lowest such Reference Treasury Dealer
Quotations, or (B) if the Calculation Agent obtains
fewer than five such Reference Treasury Dealer
Quotations, the average of all such Quotations.
"Primary Treasury Dealer" means a primary U.S. Government
securities dealer in New York City.
"Reference Treasury Dealer" means any Primary Treasury
Dealer selected by the Calculation Agent after
consultation with the Company.
"Reference Treasury Dealer Quotations" means, with
respect to each Reference Treasury Dealer and any
Regulatory Event Redemption Date, the average, as
determined by the Calculation Agent, of the bid and
asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its
principal amount) quoted in writing to the Calculation
Agent by such Reference Treasury Dealer at 5:00 p.m.
New York City time, on the third Business Day
preceding such Regulatory Event Redemption Date.
"Regulatory Event" means a Change of Capital Event
or a Tax Event.
"Change of Capital Event" means a notification to BNP
and the Company by the French Banking Commission of
its finding, in its sole discretion, that the
Company's Preferred Securities do not constitute Tier
1 capital of BNP on a consolidated basis for purposes
of the application of French banking regulations.
"Tax Event" means the receipt by the Company of an
opinion of a nationally
33
recognized law firm experienced in such matters to the
effect that, as a result of (i) any amendment to,
clarification of, or change (including any announced
prospective change) in, the laws or treaties (or any
regulations thereunder) of the United States or France or
any political subdivision or taxing authority thereof or
therein affecting taxation, (ii) any judicial
decision, official administrative pronouncement,
published or private ruling, regulatory procedure,
notice or announcement (including any notice or
announcement of intent to adopt such procedures or
regulations) ("Administrative Action") or (iii) any
amendment to, clarification of, or change in the
official position or the interpretation of such
Administrative Action or any interpretation or
pronouncement that provides for a position with
respect to such Administrative Action that differs
from the theretofore generally accepted position, in
each case, by any legislative body, court,
governmental authority or regulatory body,
irrespective of the manner in which such amendment,
clarification or change is made known, which
amendment, clarification, or change is effective or
such pronouncement or decision is announced on or
after the date of issuance of the Preferred
Securities, there is more than an insubstantial risk
that (i) the Company, is, or will be subject to more
than a de minimis amount of additional taxes, duties,
governmental charges or civil claims or (ii) the
payments on the Series A Preferred Securities will not
be respected as payments to Series A Preferred
Securityholders for tax purposes, and as a result, the
Bank is or will be subject to more than a de minimis
amount of additional taxes, duties, governmental
charges or civil claims.
(e) Liquidation Terms. (i) In the event of (A) any
voluntary or involuntary dissolution, liquidation or winding up
of the Company occurring without a simultaneous liquidation of
the Bank or (B) a dissolution, liquidation or winding-up of the
Company occurring pursuant to Section 15.2(c) but outside a Shift
Period:
(A) the Series A Preferred Securityholders shall be
entitled to receive out of assets of the Company available for
distribution to Securityholders, before any distribution of
assets is made to holders of Common Securities or any other class
of securities ranking junior to the Series A Preferred Securities
upon liquidation, liquidating distributions in an amount equal to
the liquidation preference per security, plus unpaid dividends
thereon with respect to the then-current Series A Dividend Period
to the date of liquidation and any declared and unpaid dividends
in respect of prior Series A Dividend Periods (without interest)
but without accumulation of any undeclared and unpaid dividends
for any prior Series A Dividend Period ("Liquidation
Distribution").
(B) After payment of the full amount of the
Liquidation Distribution to which they are entitled, the Series A
Preferred Securityholders shall have no right or claim to any of
the remaining assets of the Company. In the event that, upon any
such voluntary or involuntary dissolution, liquidation or winding
up, the available assets of the Company are insufficient to pay
the amount of the Liquidation Distribution on all outstanding
Series A Preferred Securities and the corresponding amounts
payable on all shares of other classes or series of capital stock
of the Company ranking on a parity with the Series A Preferred
Securities as to the distribution of
34
assets upon any dissolution, liquidation or winding up of the
affairs of the Company, then the holders of the Series A
Preferred Securities and such other classes or series of capital
securities shall share ratably in any such distribution of assets
in proportion to the full liquidating distributions to which they
would otherwise be respectively entitled. For such purposes, the
consolidation or merger of the Company with or into any other
entity, the consolidation or merger of any other entity with or
into the Company or the sale of all or substantially all of the
property or business of the Company, shall not be deemed to
constitute a liquidation, dissolution or winding up of the
Company.
(ii) In the event of any dissolution, liquidation or
winding up of the Company occurring pursuant to Section 15.2(c)
during a Shift Period, the outstanding Common Securities will
have a preference upon liquidation of the Company (and the
liquidation preference of the Series A Preferred Securities
stipulated in subsection 7.3(e)(i)(A) will be subordinated) to
the extent, if any, that all liabilities of the Bank (including
any debt instruments, such as titres participatifs and prets
participatifs, constituting Tier 2 capital), have not been paid
in full. Following payment of all such Bank liabilities, the
Series A Preferred Securities will have a preference with respect
to any remaining assets of the Company.
(f) Voting Rights. (i) Except as expressly required by
applicable law, or except as indicated below, the holders of the
Series A Preferred Securities shall not be entitled to vote. In
the event the Series A Preferred Securityholders are entitled to
vote as indicated below, each Series A Preferred Security shall
be entitled to one vote on matters on which Series A Preferred
Securityholders are entitled to vote.
(ii) The Series A Preferred Securityholders, voting
together as a class with the holders of any Parity Securities
upon which the same voting rights as those of the Series A
Preferred Securities have been conferred, will have the right to
remove the initial Independent Director at any time with or
without cause. Removal of, and election of a replacement for, the
initial Independent Director requires the vote of Series A
Preferred Securityholders (voting together as a class with any
such Parity Securities) holding a Majority in Liquidation
Preference of the outstanding Series A Preferred Securities and
any such Parity Securities. A meeting of the Series A Preferred
Securityholders (and holders of any such Parity Securities) may
be called by the holders of at least 25% in Liquidation
Preference of the outstanding Series A Preferred Securities and
any such Parity Securities. The Series A Preferred
Securityholders (voting together as a class with any such Parity
Securities) also have the right to replace the initial
Independent Director at the end of the initial and subsequent
five-year term of office of such initial Independent Director.
(iii) If full dividends on Series A Preferred
Securities shall not have been paid for two consecutive Series A
Dividend Periods or if a Shift Period is in effect, the maximum
authorized number of directors of the Company shall be increased
by one. Subject to compliance with any requirement for regulatory
approval of (or non-objection to) persons serving as directors,
the Series A Preferred Securityholders, voting together as a
class with the holders of any such Parity Securities, shall have
the exclusive right to elect the additional director at the
Company's next meeting of Securityholders (including a special
meeting called for such
35
purpose) and at each subsequent meeting at which such director's
term expires until (x) full dividends have been paid or declared
and a sum sufficient for payment thereof is set apart for payment
on the Series A Preferred Securities for four consecutive Series
A Dividend Periods and (y) if a Shift Event has occurred, the
related Shift Period shall have been terminated. The term of such
director elected thereby shall terminate, and the total number of
directors shall be decreased by one, upon the first meeting of
Securityholders after the payment or the declaration and setting
aside for payment of full dividends on the Series A Preferred
Securities for four consecutive Series A Dividend Periods and if
a Shift Period is not then in effect. Any such director may be
removed with or without cause by, and shall not be removed except
by, the vote of the holders of record of a majority of the
outstanding Series A Preferred Securities and such Parity
Securities entitled to vote, voting together as a single class
without regard to series, at a meeting of the Company's
securityholders, or of the Series A Preferred Securityholders and
such Parity Securities so entitled to vote thereon, called for
that purpose by holders of at least 25% of the outstanding Series
A Preferred Securities and such Parity Securities. During any
Shift Period or so long as full dividends on the Series A
Preferred Securities shall not have been paid for four
consecutive Series A Dividend Periods, (i) any vacancy in the
office of any such director may be filled (except as provided in
the following clause (ii)) by an instrument in writing signed by
any such remaining director and filed with the Company, and (ii)
in the case of the removal of any such director, the vacancy may
be filled by vote of the holders of a Majority in Liquidation
Preference of the outstanding Series A Preferred Securities and
such Parity Securities entitled to vote, voting together as a
single class without regard to series, at the same meeting at
which such removal shall be voted.
(iv) So long as any Series A Preferred Securities are
outstanding, the Company shall not, without the consent or vote
of at least two-thirds in Liquidation Preference of the
outstanding Series A Preferred Securities, voting separately as a
class, (a) amend, alter or repeal or otherwise change any
provision of this Agreement if such amendment, alteration, repeal
or change would materially and adversely affect the rights,
preferences, powers or privileges of the Series A Preferred
Securities, (b) modify, amend or terminate the Contingent Support
Agreement, (c) authorize, create or increase the authorized
amount of or issue any class or series of any equity securities
of the Company, or any warrants, options or other rights
convertible or exchangeable into any class or series of any
equity securities of the Company, ranking prior to the Series A
Preferred Securities, either as to dividend rights or rights on
dissolution, liquidation or winding up of the Company or (d)
merge, consolidate, reorganize or effect any other business
combination involving the Company, unless the resulting entity
will thereafter have no class or series of equity securities
either authorized or outstanding ranking prior to the Series A
Preferred Securities as to dividends or as to the distribution of
assets upon dissolution, liquidation or winding up, except the
same number of shares of such equity securities with the same
preferences, conversion or other rights, voting powers,
restrictions, limitations as to dividends or other distributions,
qualifications or terms or conditions or redemption as the shares
of equity securities of the Company that are authorized and
outstanding immediately prior to such transaction, and each
Series A Preferred Securityholder immediately prior to such
transaction shall receive securities with the same preferences,
conversion or other rights, voting powers, restrictions,
limitations as to dividends or other distributions, qualifications
or terms or conditions or redemption of the resulting entity
as the Series A Preferred Securities held by such
36
Series A Preferred Securityholders immediately prior thereto.
(v) The creation or issuance of Parity Securities or
Junior Securities, or an amendment that increases the number of
authorized Preferred Securities, or Series A Preferred Securities
or any Junior Securities or Parity Securities, shall not be
deemed to be a material and adverse change requiring a vote of
the Preferred Securityholders.
ARTICLE VIII
VOTING AND MEETINGS
Section 8.1 Voting Rights of Preferred Securityholders.
(a) Except as shall be otherwise expressly provided
herein, in the By-Laws or in any Certificate of Designation
adopted by the Board of Directors or as otherwise required by the
Delaware Act, the Preferred Securityholders shall have no right
or power to vote on any question or matter or in any proceeding
or to be represented at, or to receive notice of, any meeting of
Securityholders.
(b) Notwithstanding that Securityholders holding
Preferred Securities are entitled to vote or consent under any of
the circumstances described in this Agreement, the By-Laws or any
such Certificate of Designation, any of the Preferred Securities
that are owned by the Bank or any Affiliate of the Bank, either
directly or indirectly, shall not be entitled to vote or consent
and shall, for the purposes of such vote or consent, be treated
as if they were not outstanding.
Section 8.2 Voting Rights of Common Securityholders.
Except as otherwise provided herein, and except as otherwise
provided by the Delaware Act, all voting rights of the
Securityholders shall be vested exclusively in the Common
Securityholders. The Common Securities shall entitle the Common
Securityholders to vote in proportion to their percentage
ownership interest in the Company upon all matters upon which
Common Securityholders have the right to vote. All Common
Securityholders shall have the right to vote separately as a
class on any matter on which the Common Securityholders have the
right to vote regardless of the voting rights of any other
Securityholder.
Section 8.3 Meetings of the Securityholders.
(a) Meetings of the Securityholders of any class or of
all classes of Securities may be called at any time by the Board
of Directors or as provided by this Agreement or the By-Laws.
Except to the extent otherwise provided, the following provisions
shall apply to meetings of Securityholders.
(b) Securityholders may vote in person or by proxy at
such meeting. Whenever a vote, consent or approval of
Securityholders is permitted or required under this Agreement,
such vote, consent or approval may be given at a meeting of
Securityholders or by written consent.
37
(c) Each Securityholder may authorize any Person to
act for it by proxy on all matters in which a Securityholder is
entitled to participate, including waiving notice of any meeting,
or voting or participating at a meeting. Every proxy must be
signed by the Securityholder or a Person authorized by the
Securityholder in writing or otherwise. Every proxy shall be
revocable at the pleasure of the Securityholder executing it at
any time before it is voted.
(d) Each meeting of Securityholders shall be conducted
by the Board of Directors or by such other Person that the Board
of Directors may designate.
(e) Any required approval of Preferred Securityholders
may be given at a meeting of such Preferred Securityholders
convened for such purpose or at a meeting of Securityholders of
the Company or pursuant to written consent. The Board of
Directors shall cause a notice of any meeting at which Preferred
Securityholders holding Preferred Securities are entitled to vote
pursuant to Section 7.3, any Certificate of Designation adopted
by the Board of Directors or Article XIV of this Agreement, or of
any matter upon which action may be taken by written consent of
such Preferred Securityholders, to be mailed to each holder of
record of the Preferred Securities. Each such notice shall
include a statement setting forth (i) the date of such meeting or
the date by which such action is to be taken, (ii) a description
of any action proposed to be taken at such meeting on which such
Preferred Securityholders are entitled to vote or of such matters
upon which written consent is sought and (iii) instructions for
the delivery of proxies or consents.
(f) Subject to Section 8.3(e) of this Agreement, the
Board of Directors, in its sole discretion, shall establish all
other provisions relating to meetings of Securityholders,
including notice of the time, place or purpose of any meeting at
which any matter is to be voted on by any Securityholders, waiver
of any such notice, action by consent without a meeting, the
establishment of a record date, quorum requirements, voting in
person or by proxy or any other matter with respect to the
exercise of any such right to vote.
ARTICLE IX
DIVIDENDS
Section 9.1 Dividends.
(a) Subject to the terms of this Article IX, Preferred
Securityholders shall receive periodic dividends, if any, in
accordance with Article VII of this Agreement or any Certificate
of Designation duly adopted by the Board of Directors, only when,
as, and if declared by the Board of Directors, and Common
Securityholders shall receive periodic dividends and
distributions, subject to Article VII of this Agreement or any
Certificate of Designation duly adopted by the Board of
Directors, and to the provisions of the Delaware Act, when, as,
and if declared by the Board of Directors, in its discretion,
except as may otherwise be expressly provided herein with respect
to the occurrence of a Shift Event.
(b) A Securityholder shall not be entitled to receive
any dividend or other
38
distribution with respect to any dividend payment date (and any
such dividend or other distribution shall not be considered due
and payable), irrespective of whether such dividend or other
distribution has been declared by the Directors, until such time
as the Company shall have funds legally available for the payment
of such dividend to such Securityholder pursuant to the terms of
this Agreement and the Delaware Act, and notwithstanding any
provision of Section 18-606 of the Delaware Act to the contrary,
until such time, a Securityholder shall not have the status of a
creditor of the Company, or the remedies available to a creditor
of the Company, with respect to such dividend or other
distribution. It is specifically agreed by the Common
Securityholder that the Delaware Act currently permits dividends
to be paid out of capital of the Company as contemplated hereby
in certain circumstances.
Section 9.2 Limitations on Distributions.
Notwithstanding any provision to the contrary contained in this
Agreement, the Company shall not make a distribution (including a
dividend) to any Securityholder on account of its Security if
such distribution would violate Section 18-607 of the Delaware
Act or other applicable law.
ARTICLE X
BOOKS AND RECORDS
Section 10.1 Financial Statements. The Board of
Directors shall, as soon as available after the end of each
Fiscal Year, cause to be prepared and mailed to each Common
Securityholder of record the audited financial statements of the
Company for such Fiscal Year prepared in accordance with
generally accepted accounting principles. At any time when a
Registration Statement is not effective, the Company will make
available to each Series A Preferred Securityholder and
prospective purchaser of Series A Preferred Securities upon
request the information required by paragraph (d) (4) of Rule
144A.
Section 10.2 Limitation on Access to Records.
Notwithstanding any provision of this Agreement, the Board of
Directors may, to the maximum extent permitted by law, keep, or
cause to be kept, confidential from the Preferred
Securityholders, for such period of time as the Board of
Directors deems reasonable, any information the disclosure of
which the Board of Directors reasonably believes to be in the
nature of trade secrets or other information the disclosure of
which the Board of Directors in good faith believe is not in the
best interest of the Company or could damage the Company or its
business or which the Company or the Board of Directors are
required by law or by an agreement with any Person to keep
confidential.
Section 10.3 Accounting Method. For both financial and
tax reporting purposes and for purposes of determining profits
and losses, the books and records of the Company shall be kept on
the accrual method of accounting applied in a consistent manner
and shall reflect all Company transactions and be appropriate and
adequate for the Company's business.
Section 10.4 Annual Audit. As soon as practical after
the end of each Fiscal Year, but not later than 90 days after
such end, the financial statements of the Company shall be
audited by a firm of independent certified public accountants
selected by the Board of Directors, and such financial statements
shall be accompanied by a report of such accountants containing
39
their opinion. The cost of such audits shall be an expense of the
Company and paid by the Company.
ARTICLE XI
TAX MATTERS
Section 11.1 Company Tax Returns.
(a) The Branch is hereby designated as the Company's
"Tax Matters Partner" under Section 6231(a) (7) of the Code and
shall have all the powers and responsibilities of such position
as provided in the Code. The Tax Matters Partner is specifically
directed and authorized to take whatever steps the Tax Matters
Partner, in its discretion, deems necessary or desirable to
perfect such designation, including filing any forms or documents
with the Internal Revenue Service and taking such other action as
may from time to time be required under the Treasury Regulations.
Expenses incurred by the Tax Matters Partner in its capacity as
such shall be borne by the Company.
(b) The Tax Matters Partner shall cause to be prepared
and timely filed all tax returns required to be filed for the
Company. The Tax Matters Partner may, in its discretion, cause
the Company to make or refrain from making any federal, state or
local income or other tax elections for the Company that they
deem necessary or advisable, including, without limitation, any
election under Section 754 of the Code or any successor
provision.
Section 11.2 Tax Reports. The Tax Matters Partner
shall, as promptly as practicable and in any event within 90 days
of the end of each Fiscal Year, cause to be prepared and mailed
by the Company to each Preferred Securityholder of record
Internal Revenue Service Schedule K-1 and any other forms which
are necessary or advisable in order to permit the Securityholders
to comply with U.S. federal and any other income tax
requirements.
Section 11.3 Taxation as a Partnership. The
Securityholders intend that the Company shall be treated as a
partnership for U.S. federal income tax purposes.
Section 11.4 Taxation of Preferred Securityholders.
Income shall be allocated to each Preferred Securityholder on a
daily basis. The Securityholders intend that allocations of
income for U.S. federal income tax purposes be consistent with
the economic allocations of income under this Agreement.
ARTICLE XII
EXPENSES
Section 12.1 Expenses. Except as otherwise provided in
this Agreement, the Company shall be responsible for, and shall
pay, all expenses out of funds of the Company determined by the
Board of Directors to be available for such purpose, provided
that such expenses or obligations are those of the Company or are
otherwise incurred by or pursuant to the
40
direction of the Board of Directors in connection with this
Agreement, including, without limitation and provided that the
costs and expenses of formation of the Company and any offering
of any Securities shall be paid or reimbursed by the Common
Securityholder:
(a) all costs and expenses related to the business of
the Company and all routine administrative expenses of the
Company, including the maintenance of books and records of the
Company, the preparation and dispatch to the Securityholders of
checks, financial reports, tax returns and notices required
pursuant to this Agreement and the holding of any meetings of
the Securityholders;
(b) all expenses incurred in connection with any
litigation involving the Company (including the cost of any
investigation and preparation) and the amount of any judgment or
settlement paid in connection therewith (other than expenses
incurred by any Director in connection with any litigation
brought by or on behalf of any Securityholder against such
Director);
(c) all expenses for indemnity or contribution payable
by the Company to any Person;
(d) all expenses incurred in connection with the
collection of amounts due to the Company from any Person;
(e) all expenses incurred in connection with the
preparation of amendments and/or restatements to this Agreement;
and
(f) all expenses incurred in connection with the
dissolution, winding up or termination of the Company.
ARTICLE XIII
TRANSFERS OF SECURITIES BY SECURITYHOLDERS
AND RELATED MATTERS
Section 13.1 Right of Assignee to Become a Preferred
Securityholder. An assignee shall become a Preferred
Securityholder upon compliance with the provisions of Section
13.6 of this Agreement.
Section 13.2 Events of Cessation of Security
Ownership. A Person shall cease to be a Securityholder upon the
lawful assignment of all of its Securities (including any
redemption or other repurchase by the Company) or as otherwise
provided herein.
Section 13.3 Persons Deemed Preferred Securityholders.
The Company may treat the Person in whose name any Preferred
Certificate shall be registered on the books and records of the
Company as the sole holder of such Preferred Certificate and of
the Preferred Securities represented by such Preferred
Certificate for purposes of receiving dividends or other
distributions and for all other purposes whatsoever and,
accordingly, shall not be bound to
41
recognize any equitable or other claim to or interest in such
Preferred Certificate or in the Preferred Securities represented
by such Preferred Certificate on the part of any other person,
whether or not the Company shall have actual or other notice
thereof.
Section 13.4 The Preferred Certificates.
(a) The Preferred Certificates shall be issued in a
denomination of $10,000 liquidation preference. Each Book-Entry
Preferred Certificate shall be signed, manually, by the
President, any Vice-President or the Secretary of the Company.
Preferred Certificates, other than Book-Entry Preferred
Certificates, shall also be manually signed by the Registrar.
Preferred Certificates bearing the signatures of individuals who
were, at the time when such signatures shall have been affixed,
authorized to sign on behalf of the Company shall be validly
issued notwithstanding that such individuals or any of them shall
have ceased to be so authorized prior to the delivery of such
Preferred Certificates or did not hold such offices at the date
of delivery of such Preferred Certificates. A transferee of a
Preferred Certificate shall become a Securityholder, upon due
registration of such Preferred Certificate in such transferee's
name pursuant to Section 13.6.
(b) Upon their original issuance, Preferred
Certificates evidencing the Series A Preferred Securities shall
be issued in the form of one or more Book-Entry Preferred
Certificates registered in the name of DTC, as Clearing Agency,
or its nominee and deposited with DTC or a custodian for DTC for
credit by DTC to the respective accounts of the Owners thereof
(or such other accounts as they may direct).
Section 13.5 Book-Entry Preferred Securities.
(a) Each Book-Entry Preferred Certificate shall be
registered in the name of the Clearing Agency or a nominee
thereof and delivered to such Clearing Agency or a nominee
thereof or custodian thereof, and each such Book-Entry Preferred
Certificate shall constitute a single Preferred Certificate for
all purposes of this Agreement.
(b) Notwithstanding any other provision in this
Agreement, no Book-Entry Preferred Certificate may be exchanged
in whole or in part for Preferred Certificates registered, and no
transfer of a Book-Entry Preferred Certificate in whole or in
part may be registered, in the name of any Person other than the
Clearing Agency for such Book-Entry Preferred Certificate or a
nominee thereof unless (a) the Clearing Agency advises the
Company in writing that the Clearing Agency is no longer willing
or able to properly discharge its responsibilities with respect
to the Book-Entry Preferred Certificates, and the Company is
unable to locate a qualified successor or (b) the Company at its
option advises the Clearing Agency in writing that it elects to
terminate the book-entry system through the Clearing Agency. Upon
the occurrence of any event specified in clause (a) or (b) above,
the Company shall notify the Clearing Agency and instruct the
Clearing Agency to notify all Owners of Book-Entry Preferred
Securities of the occurrence of such event and of the
availability of the Definitive Preferred Certificates to Owners
of such class or classes, as applicable, requesting the same.
(c) If any Book-Entry Preferred Certificate is to be
exchanged for other
42
Preferred Certificates or canceled in part, or if any other
Preferred Certificate is to be exchanged in whole or in part for
Book-Entry Preferred Securities represented by a Book-Entry
Preferred Certificate, then either such Book-Entry Preferred
Certificate shall be so surrendered for exchange or cancellation
as provided in this Article XIII. On surrender to the Company or
the Registrar of the Book-Entry Preferred Certificate or
Certificates by the Clearing Agency, accompanied by registration
instructions, the Company shall execute (or cause to be executed)
the Definitive Preferred Certificates in accordance with the
instructions of the Clearing Agency and in the manner provided
for in Section 13.4. None of the Registrar or the Company shall
be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such
instructions. Upon the issuance of Definitive Preferred
Certificates, the Company shall recognize the Securityholders of
the Definitive Preferred Certificates as Securityholders. The
Definitive Preferred Certificates shall be printed, lithographed
or engraved or may be produced in any other manner as is
reasonably acceptable to the Company.
(d) Every Preferred Certificate executed and delivered
upon registration of transfer of, or in exchange for or in lieu
of, a Book-Entry Preferred Certificate or any portion thereof,
shall be executed and delivered in the form of, and shall be, a
Book-Entry Preferred Certificate, unless such Preferred
Certificate is registered in the name of a Person other than the
Clearing Agency or such Book-Entry Certificate or a nominee
thereof.
(e) The Clearing Agency or its nominee, as registered
owner of a Book-Entry Preferred Certificate, shall be the
Securityholder of such Book-Entry Preferred Certificate for all
purposes under this Agreement and the Book-Entry Preferred
Certificate, and the Owners with respect to a Book-Entry
Preferred Certificate, shall hold such interests pursuant to the
Applicable Procedures. The Registrar and the Company shall be
entitled to deal with the Clearing Agency for all purposes of
this Agreement relating to the Book-Entry Preferred Certificates
(including the payment of the liquidation preference of and
dividends on the Book-Entry Preferred Securities represented
thereby and the giving of instructions or directions by Owners of
Book-Entry Preferred Securities represented thereby) as the sole
Securityholder of the Book-Entry Preferred Securities represented
thereby and shall have no obligations to the Owners thereof.
Neither the Company nor the Registrar shall have any liability in
respect of any transfers effected by the Clearing Agency.
(f) The rights of the Owners of the Book-Entry
Preferred Securities shall be exercised only through the Clearing
Agency and shall be limited to those established by law, the
Applicable Procedures and agreements between such Owners and the
Clearing Agency and/or the Clearing Agency Participants. Pursuant
to the Certificate Depository Agreement, unless and until
Definitive Preferred Certificates are issued pursuant to Section
13.5(b), the initial Clearing Agency will make book-entry
transfers among the Clearing Agency Participants and receive and
transmit payments on the Preferred Securities to such Clearing
Agency Participants, and the Company shall have any
responsibility or obligation with respect thereto.
Section 13.6 Transfer of Preferred Certificates;
Legends.
(a) The Board of Directors shall provide for the
registration of Preferred
43
Certificates and of transfers of Preferred Certificates and shall
appoint a securities registrar (the "Registrar") and transfer
agent (the "Transfer Agent") to act on its behalf; provided,
however, that without any action on the part of the Board of
Directors being necessary, FABC is hereby appointed as the
initial Registrar and Transfer Agent. Subject to the other
provisions of this Article XIII, upon surrender for registration
or transfer of any Preferred Certificate, the Board of Directors
shall cause one or more new Preferred Certificates to be issued
in the name of the designated transferee or transferees. Every
Preferred Certificate surrendered for registration of transfer
shall be accompanied by a written instrument of transfer in form
satisfactory to the Board of Directors duly executed by the
Preferred Securityholder or his or her attorney duly authorized
in writing. Any registration of transfers shall be effected upon
the Transfer Agent being satisfied with the documents of title
and identity of the person making the request, upon the receipt
by the transfer agent of any applicable certificate relating to
transfer restrictions as described below, and subject to such
reasonable regulations as the Company may from time to time
establish. Each Preferred Certificate surrendered for
registration of transfer shall be canceled by the Board of
Directors. A transferee of a Preferred Certificate shall be
admitted to the Company as a Preferred Securityholder and shall
be entitled to the rights and subject to the obligations or a
Preferred Securityholder hereunder upon receipt by such
transferee of a Preferred Certificate. By acceptance of a
Preferred Certificate, each transferee shall be bound by this
Agreement. The transferor of a Preferred Certificate, in whole,
shall cease to be a Preferred Securityholder at the time that the
transferee of such Preferred Certificate is admitted to the
Company as a Preferred Securityholder in accordance with this
Section 13.6.
(b) Upon surrender for registration of transfer of any
Preferred Certificate at the office or agency of the Company or
the Registrar maintained for that purpose, subject to Section
13.8, the Company shall deliver or cause to be delivered to the
Registrar in a form duly executed on behalf of the Company in the
manner provided for in Section 13.4(a), and the Registrar shall
countersign in the manner provided in and to the extent required
by Section 13.4(a) and deliver, in the name of the designated
transferee or transferees, one or more new Preferred Certificates
in authorized denominations of a like aggregate liquidation
preference dated the date of execution by such Registrar.
The Registrar shall not be required, (i) to issue,
register the transfer of any Preferred Security during a period
beginning at the opening of business 15 days before the day of
selection for redemption of such Preferred Securities and ending
at the close of business on the day of mailing of the notice of
redemption, or (ii) to register the transfer of any Preferred
Security so selected for redemption in whole or in part, except,
in the case of any such Preferred Security to be redeemed in
part, any portion, hereof not to be redeemed.
No service charge shall be made for any registration
of transfer or exchange of Preferred Certificates, but the
Registrar may require payment of a sum sufficient to cover any
tax or governmental charge that be imposed in connection with any
transfer or exchange of Preferred Certificates.
(c) Notwithstanding any other provision of this
Agreement, transfers and exchanges of Preferred Certificates and the
beneficial interests in a Book-Entry Preferred
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Certificate of the kinds specified in this Section 13.6(c) shall
be made only in accordance with this Section 13.6(c).
(i) Non-Book-Entry Preferred Certificate to Non-Book
Entry Preferred Certificate. A Preferred Certificate that
is not a Book-Entry Preferred Certificate may be
transferred, in whole or in part, to a Person who takes
delivery in the form of another Preferred Certificate that
is not a Book-Entry Preferred Certificate as provided in
Section 13.6(a);
(ii) Exchanges between Book-Entry Preferred
Certificate and Non-Book Entry Preferred Certificate. A
beneficial interest in a Book-Entry Preferred Certificate
may be exchanged for a Preferred Certificate that is not a
Book-Entry Preferred Certificate as provided in Section
13.5.
(d) Any purchaser or Securityholder of any Preferred
Securities or any interest therein will be deemed to have
represented on each day that any Preferred Securities are held by
its purchase and holding thereof that it either (i) is not a Plan
and is not purchasing such Preferred Securities on behalf or with
"plan assets" of any Plan, or (ii) is eligible for the exemptive
relief available under U.S. Department of Labor Prohibited
Transaction Class Exemption 96-23, 95-60, 91-38, 90-1 or 84-14 or
another applicable exemption with respect to such purchase and
holding.
Section 13.7 Mutilated, Destroyed, Lost or Stolen
Preferred Certificates. If (a) any mutilated Preferred
Certificate shall be surrendered to the Registrar, or if the
Registrar shall receive evidence to its satisfaction of the
destruction, loss or theft of any Preferred Certificate, and (b)
there shall be delivered to the Registrar and the Company such
security or indemnity as may be required by them to save each of
them harmless, then in the absence of notice that such Preferred
Certificate shall have been acquired by a bona fide purchaser,
the Company shall sign, the Registrar shall countersign to the
extent required under Section 13.4(a), and the Company and the
Registrar shall make available for delivery (all in the manner
provided for in Section 13.4), in exchange for or in lieu of any
mutilated, destroyed, lost or stolen Preferred Certificate, a new
Preferred Certificate of like class, tenor and denomination. In
connection with the issuance of any new Preferred Certificate
under this Section 13.7, the Company or the Registrar may require
the payment of a sum sufficient to cover any tax or other
governmental charges that may be imposed in connection therewith.
Any duplicate Preferred Certificate issued pursuant to this
Section shall constitute conclusive evidence of a limited
liability company interest in the Company corresponding to that
evidenced by the lost, stolen or destroyed Preferred Certificate,
as if originally issued, whether or not the lost, stolen or
destroyed Preferred Certificate shall be found at any time.
Section 13.8 Restrictions on Transfers of Securities.
(a) Preferred Securities may not be sold or otherwise
transferred, except pursuant to sales or other transfers that
satisfy the requirements of Rule 144A under the Securities Act
and then only to institutional investors that are QIBs at the
time of transfer and shall bear a legend to this effect. If any
Preferred Securityholder or Owner was not a QIB at the
45
time such Person acquired a Preferred Security or interest
therein, such Person shall, upon demand of the Company and in any
event within ten Business Days after receiving such demand, sell
all of its Preferred Securities or interest therein to a
transferee whom such other Person reasonably believes is a QIB.
(b) No Preferred Security shall be transferred, in
whole or in part, except in accordance with the terms and
conditions set forth in this Agreement. Any transfer or purported
transfer of any Preferred Security not made in accordance with
this Agreement shall be null and void.
ARTICLE XIV
MERGERS, CONSOLIDATIONS AND SALES
Section 14.1 The Company. The Company may not, and the
Common Securityholder shall not cause or allow the Company to,
without the prior consent or vote of the holders of at least
two-thirds in Liquidation Preference of the outstanding Preferred
Securities, merge or consolidate with or into, or be replaced by,
a limited liability company, limited partnership or trust
organized as such under the laws of any state of the United
States of America; unless (i) such successor entity either (a)
expressly assumes all of the obligations of the Company under the
Preferred Securities or (b) substitutes for the Preferred
Securities other securities (the "Successor Securities") so long
as the Successor Securities rank, with respect to participation
in the profits or assets of the successor entity, at least as
high as the Preferred Securities rank, with respect to
participation in the profits or assets of the Company, (ii) such
transaction does not cause the Preferred Securities (or any
Successor Securities) to be downgraded by any nationally
recognized statistical rating organization, as that term is
defined by the Commission for purposes of Rule 436(g) (2) under
the Securities Act, (iii) such transaction does not adversely
affect the powers, preferences and other special rights of the
Preferred Securityholders or the holders of any Successor
Securities in any material respect (other than with respect to
any dilution of the holders' interest in the new entity), (iv)
prior to such transaction the Board of Directors has received an
opinion of nationally recognized independent counsel to the
Company experienced in such matters to the effect that Preferred
Securityholders shall not recognize any gain or loss for federal
income tax purposes as a result of such transaction, (y) such
successor entity shall not be treated as an association taxable
as a corporation for federal income tax purposes and (z) such
transaction shall not cause the Preferred Securityholders to be
generally liable for the debts, obligations or liabilities of the
Company or such successor person.
ARTICLE XV
DISSOLUTION, LIQUIDATION AND TERMINATION
Section 15.1 No Dissolution. The Company shall not be
dissolved by the admission of Securityholders. The death,
insanity, retirement, resignation, expulsion, bankruptcy or
dissolution of a Securityholder, or the occurrence of any other
event which terminates the
46
continued membership of a Securityholder in the Company, shall
not in and of itself cause the Company to be dissolved and its
affairs wound up. Upon the occurrence of any such event, the
business of the Company shall be continued without dissolution.
The bankruptcy of a Securityholder (as defined in Section 18-304
of the Delaware Act) shall not cause a Securityholder to cease to
be a member of the Company.
Section 15.2 Events Causing Dissolution. The Company
shall be dissolved and liquidated and its affairs shall be wound
up upon the occurrence of any of the following events:
(a) the entry of a decree of judicial dissolution
under Section 18-802 of the Delaware Act;
(b) the written consent of all Securityholders; or
(c) the commencement of the liquidation of the Bank.
Section 15.3 Notice of Dissolution. Upon the
dissolution of the Company, the Board of Directors shall promptly
notify the Securityholders of such dissolution.
Section 15.4 Liquidation. Upon dissolution of the
Company, the Board of Directors or, in the event that the
dissolution is caused by an event described in Sections 15.2(a)
and (c) and there are no Directors, a Person or Persons who may
be approved by the Preferred Securityholders holding not less
than a Majority in Liquidation Preference, as liquidating
trustees, shall immediately commence to wind up the Company's
affairs; provided, however, that a reasonable time shall be
allowed for the orderly liquidation of the assets of the Company
and the satisfaction of liabilities to creditors so as to
minimize the losses attendant upon a liquidation. The proceeds of
liquidation shall be distributed, as realized, in the manner
provided in Section 18-804 of the Delaware Act, subject to the
provisions of Section 7.3(e).
Section 15.5 Termination. The Company shall terminate
when all of the assets of the Company have been distributed in
the manner provided for in this Article XV, and the Certificate
shall have been canceled in the manner required by the Delaware
Act.
ARTICLE XVI
MISCELLANEOUS
Section 16.1 Amendments. This Agreement may be amended
by a written instrument executed by an Officer designated by the
Board of Directors without the consent of any Preferred
Securityholder; provided, however, that no amendment shall be
made, and any such purported amendment shall be void and
ineffective, to the extent either that such amendment (a) would
result in causing the Company to be treated as anything other
than a partnership for purposes of United States federal income
taxation, or (b) has not received the prior requisite approval of
the Preferred Securityholders, including the Series A Preferred
Securityholders, as may be expressly provided in this Agreement,
the By-Laws or any Certificate of Designation duly adopted by the
Board of Directors.
47
Section 16.2 Amendment of Certificate. In the event
this Agreement shall be amended pursuant to Section 16.1, the
Board of Directors shall cause the Certificate to be amended to
reflect such change if it deems such amendment of the Certificate
to be necessary or appropriate.
Section 16.3 Successors. This Agreement shall be
binding as to the executors, administrators, estates, heirs and
legal successors, or nominees or representatives, of the
Securityholders.
Section 16.4 Law; Severability. This Agreement shall
be governed by and construed in accordance with the laws of the
State of Delaware. In particular, this Agreement shall be
construed to the maximum extent possible to comply with all of
the terms and conditions of the Delaware Act. If, nevertheless,
it shall be determined by a court of competent jurisdiction that
any provisions or wording of this Agreement shall be invalid or
unenforceable under the Delaware Act or other applicable law,
such invalidity or unenforceability shall not invalidate the
entire Agreement. In that case, this Agreement shall be construed
so as to limit any term or provision so as to make it enforceable
or valid within the requirements of applicable law, and, in the
event such term or provisions cannot be so limited, this
Agreement shall be construed to omit such invalid or
unenforceable provisions. If it shall be determined by a court of
competent jurisdiction that any provision relating to the
distributions and allocations of the Company or to any fee
payable by the Company is invalid or unenforceable, this
Agreement shall be construed or interpreted so as (a) to make it
enforceable or valid and (b) to make the distributions and
allocations as closely equivalent to those set forth in this
Agreement as is permissible under applicable law.
Section 16.5 Filings. Following the execution and
delivery of this Agreement, the Board of Directors shall cause to
be promptly prepared any documents required to be filed and
recorded under the Delaware Act, and the Board of Directors shall
cause to be promptly filed and recorded each such document in
accordance with the Delaware Act and, to the extent required by
local law, to be filed and recorded or notice thereof to be
published in the appropriate place in each jurisdiction in which
the Company may hereafter establish a place of business. The
Board of Directors shall also promptly cause to be filed,
recorded and published such statements of fictitious business
name and any other notices, certificates, statements or other
instruments required by any provision of any applicable law of
the United States or any state or other jurisdiction which
governs the conduct of its business from time to time.
Section 16.6 Power of Attorney. Each Preferred
Securityholder does hereby constitute and appoint each Person
specifically authorized by the Board of Directors to act as its
true and lawful representative and attorney-in-fact, in its name,
place and stead to make, execute, sign, deliver and file (a) any
amendment of the Certificate required because of any amendment to
this Agreement made in accordance with the terms hereof or in
order to effectuate any change in the ownership of the Securities
of the Company, (b) any amendments to this Agreement made in
accordance with the terms hereof and (c) all such other
instruments, documents and certificates which may from time to
time be required by the laws of the United States of America, the
State of Delaware or any other jurisdiction, or any political
subdivision or agency thereof, to
48
effectuate, implement and continue the valid and subsisting
existence of the Company or to dissolve the Company made in
accordance with the terms hereof or for any other purpose
consistent with this Agreement and the transactions contemplated
hereby.
The power of attorney granted hereby is coupled with
an interest and shall survive and not be affected by the
subsequent death, incapacity, disability, dissolution,
termination or bankruptcy of the Preferred Securityholder
granting the same or the transfer of all or any portion of such
Preferred Securityholder's successors, assigns and legal
representatives.
Section 16.7 Exculpation.
(a) No Director or Officer shall have personal
liability to the Company or the Securityholders for monetary
damages for breach of, in the case of a Director, such Director's
fiduciary duty (if any) or, in the case of a Director or an
Officer, for any act or omission performed or omitted by such
Director or Officer in good faith on behalf of the Company,
except for such Director's or Officer's gross negligence or
willful misconduct.
(b) Each Director and Officer shall be fully protected
in relying in good faith upon the records of the Company and upon
such information, opinions, reports or statements presented to
the Company by any Person as to matters that such Director or
Officer 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 Company, 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 Securityholders might properly be paid.
Section 16.8 Indemnification. To the fullest extent
permitted by applicable law, each Director and Officer shall be
entitled to indemnification from the Company for any loss, damage
or claim incurred by such Director or Officer by reason of any
act or omission performed or omitted by such Director or Officer
in good faith on behalf of the Company and in a manner reasonably
believed to be within the scope of authority conferred on such
Director or Officer by this Agreement, except with respect to any
act or omission determined by a court of competent jurisdiction
to have constituted gross negligence or willful misconduct of
such Director or Officer; provided, however, that any indemnity
under this Section 16.8 shall be provided out of and to the
extent of Company assets only, and no Securityholder shall have
any personal liability on account thereof.
Section 16.9 Additional Documents. Each Preferred
Securityholder, upon the request of the Board of Directors,
agrees to perform all further acts and execute, acknowledge and
deliver any documents that may be reasonably necessary to carry
out the provisions of this Agreement.
49
Section 16.10 Notices. All notices provided for in
this Agreement shall be in writing, duly signed by the party
giving such notice, and shall be delivered, telecopied or mailed
by registered or certified mail, as follows:
(i) If given to the Company, at the Company's mailing
address set forth below;
BNP U.S. FUNDING L.L.C.
x/x Xxxxxx Xxxxxxxxx xx Xxxxx, Xxx Xxxx Branch
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Secretary
(ii) If given to any Securityholder, at the address
set forth on the records of the Company maintained by or on
behalf of the Company.
Subject to Section 7.3 of this Agreement, each such notice,
request or other communication shall be effective (a) if given by
telecopier, when transmitted to the number specified in such
registration books and the appropriate confirmation is received,
(b) if given by mail, 72 hours after such communication is
deposited in the mails with first class postage prepaid,
addressed as aforesaid, or (c) if given by any other means, when
delivered at the address specified in such registration books.
* * *
50
IN WITNESS WHEREOF, the Common Securityholder has
executed this Agreement under seal as of the date and year first
above written:
Banque Nationale de Paris,
acting through its
New York Branch
By: /s/ Xxxx Xxxxxx
----------------------------
Name: Xxxx Xxxxxx
Title: Senior Vice-President
By: /s/ Xxxx-Xxxxxx Xxxx
----------------------------
Name: Xxxx-Xxxxxx Xxxx
Title: Executive Vice-President