Exhibit 4.3
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AMENDED AND RESTATED TRUST AGREEMENT
BY AND AMONG
BANKNORTH GROUP, INC.
AS SPONSOR
THE BANK OF NEW YORK,
AS PROPERTY TRUSTEE
THE BANK OF NEW YORK (DELAWARE),
AS DELAWARE TRUSTEE
AND
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
DATED AS OF FEBRUARY 22, 2002
BANKNORTH CAPITAL TRUST II
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CROSS REFERENCE TABLE(1)
SECTION OF TRUST
INDENTURE ACT OF SECTION OF
1939, AS AMENDED AGREEMENT
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310(a).....................................................................................6.3
310(b)..........................................................................6.3(c); 6.3(d)
310(c)............................................................................Inapplicable
311(a)..................................................................................2.2(b)
311(b)..................................................................................2.2(b)
311(c)............................................................................Inapplicable
312(a)..................................................................................2.2(a)
312(b)..................................................................................2.2(b)
312(c)............................................................................Inapplicable
313 (a)....................................................................................2.3
313(b).....................................................................................2.3
313(c).....................................................................................2.3
313(d).....................................................................................2.3
314(a).....................................................................................2.4
314(b)............................................................................Inapplicable
314(c).....................................................................................2.5
314(d)............................................................................Inapplicable
314(e).....................................................................................2.5
314(f)............................................................................Inapplicable
315(a).........................................................................3.9(b); 3.10(a)
315(b)..................................................................................2.7(a)
315(c)..................................................................................3.9(a)
315(d)..................................................................................3.9(b)
316(a)....................................................................2.6; 7.5(b); 7.6 (c)
316(b)............................................................................Inapplicable
316(c)............................................................................Inapplicable
317(a)....................................................................................3.16
317(b)............................................................................Inapplicable
318(a)..................................................................................2.1(c)
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(1) This Cross-Reference Table does not constitute part of the Agreement and
shall not have any bearing upon the interpretation of any of its terms or
provisions.
TABLE OF CONTENTS
CROSS REFERENCE TABLE(1).....................................................................2
AMENDED AND RESTATED TRUST AGREEMENT.........................................................1
RECITALS 1
ARTICLE 1 INTERPRETATION AND DEFINITIONS................................................1
SECTION 1.1. Interpretation and Definitions.....................................1
"Administrative Trustee"......................................................2
"Affiliate"...................................................................2
"Authorized Officer"..........................................................2
"Beneficial Owners"...........................................................2
"Business Day"................................................................2
"Business Trust Act"..........................................................2
"Capital Security"............................................................2
"Capital Security Certificate"................................................2
"Certificate".................................................................2
"Certificate of Trust"........................................................2
"Closing Date"................................................................2
"Code" .......................................................................2
"Commission"..................................................................3
"Common Securities Holder"....................................................3
"Common Securities Subscription Agreement"....................................3
"Common Security".............................................................3
"Common Security Certificate".................................................3
"Corporate Trust Office"......................................................3
"Covered Person"..............................................................3
"Debenture Issuer"............................................................3
"Debenture Issuer Indemnified Person".........................................3
"Debenture Trustee"...........................................................3
"Debentures"..................................................................3
"Debenture Subscription Agreement"............................................3
"Delaware Trustee"............................................................3
"Depositary"..................................................................4
"Depositary Participant"......................................................4
"Direct Action"...............................................................4
"Distribution"................................................................4
"Exchange Act"................................................................4
"Federal Reserve".............................................................4
"Fiduciary Indemnified Person"................................................4
"Fiscal Year".................................................................4
"Global Security".............................................................4
"Guarantee"...................................................................4
"Holder"......................................................................4
"Indemnified Person"..........................................................4
"Indenture"...................................................................4
"Indenture Event of Default"..................................................4
"Investment Company"..........................................................4
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"Investment Company Act"......................................................4
"Investment Company Event"....................................................4
"Legal Action"................................................................5
"List of Holders".............................................................5
"Majority in Liquidation Amount"..............................................5
"NYSE"........................................................................5
"Officer's Certificate".......................................................5
"Paying Agent"................................................................5
"Payment Amount"..............................................................5
"Person"......................................................................5
"Property Account"............................................................5
"Property Trustee"............................................................6
"Pro Rata"....................................................................6
"Quorum"......................................................................6
"Redemption/Distribution Notice"..............................................6
"Redemption Price"............................................................6
"Regulatory Capital Event"....................................................6
"Related Party"...............................................................6
"Responsible Officer".........................................................6
"Securities"..................................................................6
"Securities Act"..............................................................6
"Special Event"...............................................................6
"Sponsor".....................................................................6
"Successor Delaware Trustee"..................................................7
"Successor Entity"............................................................7
"Successor Property Trustee"..................................................7
"Successor Security"..........................................................7
"Super Majority"..............................................................7
"Tax Event"...................................................................7
"10% in Liquidation Amount"...................................................7
"Treasury Regulations"........................................................7
"Trust"7
"Trust Enforcement Event".....................................................7
"Trust Indenture Act".........................................................7
"Trustee".....................................................................7
"Trustees"....................................................................7
ARTICLE 2 TRUST INDENTURE ACT...........................................................8
SECTION 2.1. Trust Indenture Act; Application...................................8
SECTION 2.2. Lists of Holders of Securities.....................................8
SECTION 2.3. Reports by the Property Trustee....................................8
SECTION 2.4. Periodic Reports to the Property Trustee...........................9
SECTION 2.5. Evidence of Compliance with Conditions Precedent...................9
SECTION 2.6. Trust Enforcement Events; Waiver...................................9
SECTION 2.7. Trust Enforcement Event; Notice...................................10
ARTICLE 3 ORGANIZATION.................................................................11
SECTION 3.1. Name and Organization.............................................11
SECTION 3.2. Office............................................................11
SECTION 3.3. Purpose...........................................................11
SECTION 3.4. Authority.........................................................11
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SECTION 3.5. Title to Property of the Trust....................................12
SECTION 3.6. Powers and Duties of the Administrative Trustees..................12
SECTION 3.7. Prohibition of Actions by the Trust and the Trustees..............14
SECTION 3.8. Powers and Duties of the Property Trustee.........................15
SECTION 3.9. Certain Duties and Responsibilities of the Property Trustee.......17
SECTION 3.10. Certain Rights of Property Trustee................................19
SECTION 3.11. Delaware Trustee..................................................21
SECTION 3.12. Execution of Documents............................................21
SECTION 3.13. Not Responsible for Recitals or Issuance of Securities............21
SECTION 3.14. Duration of Trust.................................................21
SECTION 3.15. Mergers...........................................................21
SECTION 3.16. Property Trustee May File Proofs of Claim.........................23
ARTICLE 4 SPONSOR......................................................................24
SECTION 4.1. Responsibilities of the Sponsor...................................24
SECTION 4.2. Indemnification and Fees and Expenses of the Trustees.............24
SECTION 4.3. Compensation of the Trustees......................................24
ARTICLE 5 TRUST COMMON SECURITIES HOLDER...............................................25
SECTION 5.1. Sponsor's Purchase of Common Securities...........................25
SECTION 5.2. Covenants of the Common Securities Holder.........................25
ARTICLE 6 TRUSTEES.....................................................................25
SECTION 6.1. Number of Trustees................................................25
SECTION 6.2. Delaware Trustee; Eligibility.....................................26
SECTION 6.3. Property Trustee; Eligibility.....................................26
SECTION 6.4. Qualifications of Administrative Trustees and Delaware
Trustee Generally.................................................26
SECTION 6.5. Initial Administrative Trustees...................................27
SECTION 6.6. Appointment, Removal and Resignation of Trustees..................27
SECTION 6.7. Vacancies among Trustees..........................................28
SECTION 6.8. Effect of Vacancies...............................................28
SECTION 6.9. Meetings..........................................................28
SECTION 6.10. Delegation of Power...............................................29
SECTION 6.11. Merger, Conversion, Consolidation or Succession to Business.......29
ARTICLE 7 TERMS OF SECURITIES..........................................................30
SECTION 7.1. General Provisions Regarding Securities...........................30
SECTION 7.2. Distributions.....................................................31
SECTION 7.3. Redemption of Securities..........................................32
SECTION 7.4. Redemption Procedures.............................................33
SECTION 7.5. Voting Rights of Capital Securities...............................34
SECTION 7.6. Voting Rights of Common Securities................................36
SECTION 7.7. Paying Agent......................................................37
SECTION 7.8. Listing...........................................................37
SECTION 7.9. Transfer of Securities............................................37
SECTION 7.10. Mutilated, Destroyed, Lost or Stolen Certificates.................38
SECTION 7.11. Deemed Security Holders...........................................39
SECTION 7.12. Global Securities.................................................39
ARTICLE 8 DISSOLUTION AND TERMINATION OF TRUST.........................................41
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SECTION 8.1. Dissolution and Termination of Trust..............................41
SECTION 8.2. Liquidation Distribution Upon Dissolution of the Trust............42
ARTICLE 9 LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, DELAWARE
TRUSTEES OR OTHERS...........................................................42
SECTION 9.1. Liability.........................................................43
SECTION 9.2. Exculpation.......................................................43
SECTION 9.3. Fiduciary Duty....................................................43
SECTION 9.4. Indemnification...................................................44
SECTION 9.5. Outside Businesses................................................46
ARTICLE 10 ACCOUNTING...................................................................46
SECTION 10.1. Fiscal Year.......................................................46
SECTION 10.2. Certain Accounting Matters........................................47
SECTION 10.3. Banking...........................................................47
SECTION 10.4. Withholding.......................................................47
ARTICLE 11 AMENDMENTS AND MEETINGS......................................................48
SECTION 11.1. Amendments........................................................48
SECTION 11.2. Meetings of the Holders of Securities; Action by Written
Consent...........................................................50
ARTICLE 12 REPRESENTATIONS OF PROPERTY TRUSTEE AND DELAWARE TRUSTEE.....................51
SECTION 12.1. Representations and Warranties of the Property Trustee............51
SECTION 12.2. Representations and Warranties of the Delaware Trustee............52
ARTICLE 13 MISCELLANEOUS................................................................52
SECTION 13.1. Notices...........................................................52
SECTION 13.2. Governing Law.....................................................53
SECTION 13.3. Intention of the Parties..........................................54
SECTION 13.4. Headings..........................................................54
SECTION 13.5. Successors and Assigns............................................54
SECTION 13.6. Partial Enforceability............................................54
SECTION 13.7. Counterparts......................................................54
EXHIBITS
Exhibit A Form of Capital Security Certificate
Exhibit B Form of Common Security Certificate
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AMENDED AND RESTATED TRUST AGREEMENT
This AMENDED AND RESTATED TRUST AGREEMENT (the "Trust
Agreement"), dated as of February 22, 2002 is entered into by and among (i)
BANKNORTH GROUP, INC., a Maine corporation (the "Sponsor"), (ii) THE BANK OF
NEW YORK, a banking corporation organized under the laws of New York, as
property trustee, (in each such capacity, the "Property Trustee"), (iii) THE
BANK OF NEW YORK (DELAWARE), as Delaware trustee (the "Delaware Trustee"),
(iv) Xxxxxxx X. Xxxx, an individual, Xxxxx X. Xxxxxxx, an individual, and
Xxxxx X. Xxxxxxxx, an individual, each of whose address is c/o Banknorth
Group, Inc., X.X. Xxx 0000, Xxx Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxx 00000 (each
an "Administrative Trustee" and collectively the "Administrative Trustees")
(the Property Trustee, the Delaware Trustee and the Administrative Trustees
referred to collectively as the "Trustees") and (v) the several Holders, as
hereinafter defined.
RECITALS
WHEREAS, the Trustees and the Sponsor established BANKNORTH
CAPITAL TRUST II (the "Trust"), a business trust under the Business Trust Act
(as defined, together with other capitalized terms, herein) pursuant to a
Trust Agreement dated as of January 31, 2002 (the "Original Trust Agreement"),
and a Certificate of Trust (the "Certificate of Trust") filed with the
Secretary of State of the State of Delaware on January 31, 2002;
WHEREAS, the sole purpose of the Trust shall be to issue and
sell certain securities representing undivided beneficial interests in the
assets of the Trust, investing the proceeds thereof in certain Debentures
issued by the Debenture Issuer and to engage in only those activities
necessary or incidental thereto; and
WHEREAS, the parties hereto, by this Trust Agreement, amend and
restate each and every term and provision of the Original Trust Agreement;
NOW, THEREFORE, it being the intention of the parties hereto to
continue the Trust as a business trust under the Business Trust Act and that
this Trust Agreement constitute the governing instrument of such business
trust, the Trustees hereby declare that all assets contributed to the Trust be
held in trust for the benefit of the Holders of the Securities representing
undivided beneficial interests in the assets of the Trust issued hereunder,
subject to the provisions of this Trust Agreement.
ARTICLE 1
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Interpretation and Definitions.
Unless the context otherwise requires:
(a) capitalized terms used in this Trust Agreement but not
defined in the preamble above have the meanings assigned to them in
this Section 1.1;
(b) a term defined anywhere in this Trust Agreement has the
same meaning throughout;
(c) all references to "the Trust Agreement" or "this Trust
Agreement" are to this Trust Agreement as modified, supplemented or
amended from time to time;
(d) all references in this Trust Agreement to Articles,
Sections, Recitals and Exhibits are to Articles and Sections of, or
Recitals and Exhibits to, this Trust Agreement unless otherwise
specified;
(e) unless otherwise defined in this Trust Agreement, a term
defined in the Trust Indenture Act has the same meaning when used in
this Trust Agreement;
(f) a reference to the singular includes the plural and vice
versa and a reference to any masculine form of a term shall include
the feminine form of a term, as applicable; and
(g) the following terms have the following meanings:
"Administrative Trustee" means any Trustee other than the
Property Trustee and the Delaware Trustee.
"Affiliate" has the same meaning as given to that term in Rule
405 of the Securities Act or any successor rule thereunder.
"Authorized Officer" of a Person means any Person that is
authorized to bind such Person.
"Beneficial Owners" means, for Capital Securities represented
by a Global Security, the Person who acquires an interest in
the Capital Securities which is reflected on the records of the
Depositary through the Depositary Participants.
"Business Day" means any day other than (i) a Saturday or
Sunday, (ii) a day on which banking institutions in the Borough
of Manhattan, The City of New York or Portland, Maine are
authorized or required by law or executive order to remain
closed or (iii) a day on which the Corporate Trust Office of
the Debenture Trustee, or, with respect to the Securities of a
series initially issued to a Trust, the principal office of the
Property Trustee under the related Trust Agreement, is closed
for business.
"Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code Section 3801 et seq., as it may be
amended from time to time, or any successor legislation.
"Capital Security" has the meaning specified in Section 7.1.
"Capital Security Certificate" means a definitive certificate
in fully registered form representing a Capital Security,
substantially in the form of Exhibit A.
"Certificate" means a Common Security Certificate or a Capital
Security Certificate.
"Certificate of Trust" has the meaning specified in the
Recitals hereto.
"Closing Date" means the date on which the Capital Securities
are issued and sold.
"Code" means the Internal Revenue Code of 1986, as amended from
time to time, or any successor legislation. A reference to a
specific section of the Code refers not only to such specific
section but also to any corresponding provision of any federal
tax statute enacted after the date of this Trust Agreement, as
such specific section or corresponding provision
2
is in effect on the date of application of the provisions of
this Trust Agreement containing such reference.
"Commission" means the Securities and Exchange Commission or
any successor thereto.
"Common Securities Holder" means Banknorth Group, Inc., or any
successor thereto, in its capacity as purchaser and holder of
all of the Common Securities issued by the Trust.
"Common Securities Subscription Agreement"
means the Common Securities Subscription Agreement,
dated as of the Closing Date, between the Trust and the Sponsor
relating to the Common Securities.
"Common Security" has the meaning specified in Section 7.1.
"Common Security Certificate" means a definitive certificate in
fully registered form representing a Common Security,
substantially in the form of Exhibit B hereto.
"Corporate Trust Office" means the principal office of the
Property Trustee at which at any particular time its corporate
trust business shall be administered, which office at the date
of execution of this Trust Agreement is located at 0 Xxxx
Xxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Corporate Trust Administration.
"Covered Person" means (a) any officer, director, shareholder,
partner, member, representative, employee or agent of (i) the
Trust or (ii) the Trust's Affiliates; and (b) any Holder.
"Debenture Issuer" means Banknorth Group, Inc., or any
successor thereto under the Indenture, in its capacity as
issuer of the Debentures under the Indenture.
"Debenture Issuer Indemnified Person" means (a) any
Administrative Trustee; (b) any Affiliate of any Administrative
Trustee; (c) any officers, directors, shareholders, members,
partners, employees, representatives or agents of any
Administrative Trustee or any Affiliate thereof; or (d) any
officer, employee or agent of the Trust or its Affiliates.
"Debenture Trustee" means The Bank of New York, in its capacity
as trustee under the Indenture until a successor is appointed
thereunder, and thereafter means such successor trustee.
"Debentures" means the series of debentures to be issued by the
Debenture Issuer under the Indenture and held by the Property
Trustee.
"Debenture Subscription Agreement" means the Debenture
Subscription Agreement, dated as of the Closing Date, between
the Sponsor and the Trust in respect of the Debentures.
"Delaware Trustee" means the Trustee meeting the eligibility
requirements set forth in Section 6.2.
3
"Depositary" means, with respect to Securities issuable in
whole or in part in the form of one or more Global Securities,
a clearing agency registered under the Exchange Act that is
designated to act as Depositary for such Securities.
"Depositary Participant" means a member of, or participant in,
the Depositary.
"Direct Action" has the meaning specified in Section 3.8(e).
"Distribution" means a distribution payable to Holders of
Securities in accordance with Section 7.2.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, or any successor legislation.
"Federal Reserve" means the Board of Governors of the Federal
Reserve System, or any successor thereto.
"Fiduciary Indemnified Person" has the meaning set forth in
Section 9.4(b).
"Fiscal Year" has the meaning specified in Section 10.1.
"Global Security" means a fully registered, global Capital
Security Certificate.
"Guarantee" means the Guarantee Agreement, dated the date
hereof, of the Sponsor in respect of the Securities.
"Holder" means any holder of Securities, as registered on the
books and records of the Trust, such Person being a beneficial
owner of the Trust within the meaning of the Business Trust
Act.
"Indemnified Person" means a Debenture Issuer Indemnified
Person or a Fiduciary Indemnified Person, such Person being a
beneficial owner within the meaning of the Business Trust Act.
"Indenture" means the Indenture, dated as of February 22, 2002,
between the Debenture Issuer and The Bank of New York, as
Trustee, pursuant to which the Debentures are to be issued.
"Indenture Event of Default" has the meaning given to the term
"Event of Default" in the Indenture.
"Investment Company" means an investment company as defined in
the Investment Company Act and the regulations promulgated
thereunder.
"Investment Company Act" means the Investment Company Act of
1940, as amended from time to time, or any successor
legislation.
"Investment Company Event" means the receipt by the Sponsor and
the Trust of an opinion of an independent counsel experienced
in matters relating to investment companies, to the effect
that, as a result of the occurrence of a change in law or
regulation or a change in interpretation or application of law
or regulation by any legislative body, court, governmental
agency or regulatory authority (a "Change in 1940 Act Law"),
there
4
is more than an insubstantial risk that the Trust is or will be
considered an "investment company" that is required to be
registered under the Investment Company Act, which Change in
1940 Act Law becomes effective on or after the Closing Date.
"Legal Action" has the meaning specified in Section 3.6(g).
"List of Holders" has the meaning specified in Section 2.2(a).
"Majority in Liquidation Amount" means, except as provided in
the terms of the Capital Securities or by the Trust Indenture
Act, Holder(s) of outstanding Securities, voting together as a
single class, or, as the context may require, Holders of
outstanding Capital Securities or Holders of outstanding Common
Securities, voting separately as a class, who are the record
owners of more than 50% of the aggregate liquidation amount
(including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accumulated and unpaid
Distributions to the date upon which the voting percentages are
determined) of all outstanding Securities of the relevant
class.
"NYSE" means the New York Stock Exchange, or any successor
thereto.
"Officer's Certificate" means, with respect to any Person, a
certificate signed on behalf of such Person by two Authorized
Officers of such Person. Any Officer's Certificate delivered
with respect to compliance with a condition or covenant
provided for in this Trust Agreement shall include:
(i) a statement that each officer signing the Officer's
Certificate has read the covenant or condition and the definitions
relating thereto;
(ii) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer on behalf of
such Person in rendering the Officer's Certificate;
(iii) a statement that each such officer has made such
examination or investigation as, in such officer's opinion, is
necessary to enable such officer on behalf of such Person to express
an informed opinion as to whether or not such covenant or condition
has been complied with; and
(iv) a statement as to whether, in the opinion of each such
officer acting on behalf of such Person, such condition or covenant
has been complied with; provided, that the term "Officer's
Certificate", when used with reference to Administrative Trustees who
are natural persons shall mean a certificate signed by two or more of
the Administrative Trustees which otherwise satisfies the foregoing
requirements.
"Paying Agent" has the meaning specified in Section 3.8(h).
"Payment Amount" has the meaning specified in Section 7.2(c).
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association,
joint stock company, limited liability company, trust,
unincorporated association, or government or any agency or
political subdivision thereof, or any other entity of whatever
nature.
"Property Account" has the meaning specified in Section 3.8(c).
5
"Property Trustee" means the Trustee meeting the eligibility
requirements set forth in Section 6.3.
"Pro Rata" means pro rata to each Holder of Securities
according to the aggregate liquidation amount of the Securities
held by the relevant Holder in relation to the aggregate
liquidation amount of all Securities outstanding.
"Quorum" means a majority of the Administrative Trustees or, if
there are only two Administrative Trustees, both of them.
"Redemption/Distribution Notice" has the meaning specified in
Section 7.4(a).
"Redemption Price" means the amount for which the Securities
will be redeemed, which amount will equal (i) the redemption
price paid by the Debenture Issuer to repay or redeem, in whole
or in part, the Debentures held by the Trust which shall
include accumulated and unpaid Distributions on such Securities
through the date of their redemption or (ii) such lesser amount
as will be received by the Trust in respect of the Debentures
so repaid or redeemed.
"Regulatory Capital Event" means the reasonable determination
by the Sponsor that, as a result of (a) any amendment to, or
change (including any announced prospective change) in, the
laws (or any regulations thereunder) of the United States or
(b) any official or administrative pronouncement or action or
judicial decision for interpreting or applying such laws or
regulations, which amendment or change is effective or such
pronouncement or decision is announced on or after the date of
original issuance of the Capital Securities, there is more than
an insubstantial risk of impairment of the Sponsor's ability to
treat the Capital Securities (or any substantial portion
thereof) as Tier 1 capital (or its then equivalent) for
purposes of the capital adequacy guidelines of the Federal
Reserve in effect and applicable to the Sponsor.
"Related Party" means, with respect to the Sponsor, any direct
or wholly owned subsidiary of the Sponsor or any Person that
owns, directly or indirectly, 100% of the outstanding voting
securities of the Sponsor.
"Responsible Officer" means, with respect to the Property
Trustee, any officer with direct responsibility for the
administration of this Trust Agreement and also means, with
respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of that
officer's knowledge of and familiarity with the particular
subject.
"Securities" means the Common Securities and the Capital
Securities.
"Securities Act" means the Securities Act of 1933, as amended
from time to time, or any successor legislation.
"Special Event" means a Tax Event, a Regulatory Capital Event
or an Investment Company Event.
"Sponsor" means Banknorth Group, Inc., a Maine corporation, or
any successor entity in a merger, consolidation, amalgamation
or replacement by or conveyance, transfer or lease of its
properties substantially as an entirety, in its capacity as
sponsor of the Trust.
6
"Successor Delaware Trustee" has the meaning specified in
Section 6.6(b).
"Successor Entity" has the meaning specified in Section
3.15(b)(i).
"Successor Property Trustee" has the meaning specified in
Section 6.6(b).
"Successor Security" has the meaning specified in Section
3.15(b)(i)b.
"Super Majority" has the meaning specified in Section
2.6(a)(ii) .
"Tax Event" means the receipt by the Sponsor or the Trust of an
opinion of tax counsel (which may be the Sponsor's counsel or
counsel of an Affiliate but not an employee and which must be
reasonably acceptable to the Property Trustee) experienced in
such matters, to the effect that, as a result of (a) any
amendment to, or change (including any announced prospective
change) in, the laws (or any regulations thereunder) of the
United States or any political subdivision or taxing authority
thereof or therein, or (b) any court, governmental agency or
regulatory authority interpreting or applying such laws or
regulations, there is more than an insubstantial risk that (i)
the Trust is, or will be within 90 days of the date of such
opinion, subject to the United States federal income tax with
respect to income received or accrued on the Debentures, (ii)
interest payable by the Debenture Issuer on the Debentures is
not, or within 90 days of the date of such opinion will not be,
deductible, in whole or in part, by the Debenture Issuer for
United States federal income tax purposes, or (iii) the Trust
is, or will be within 90 days of the date of such opinion,
subject to more than a de minimus amount of other taxes, duties
or other governmental charges.
"10% in Liquidation Amount" means, except as provided in the
terms of the Capital Securities or by the Trust Indenture Act,
Holder(s) of outstanding Securities, voting together as a
single class, or, as the context may require, Holders of
outstanding Capital Securities or Holders of outstanding Common
Securities, voting separately as a class, who are the record
owners of 10% or more of the aggregate liquidation amount
(including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accumulated and unpaid
Distributions to the date upon which the voting percentages are
determined) of all outstanding Securities of the relevant
class.
"Treasury Regulations" means the income tax regulations,
including temporary and proposed regulations, promulgated under
the Code by the United States Treasury, as such regulations may
be amended from time to time (including corresponding
provisions of succeeding regulations).
"Trust" has the meaning specified in the Recitals.
"Trust Enforcement Event" in respect of the Securities means an
Indenture Event of Default has occurred and is continuing in
respect of the Debentures.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended from time to time, or any successor legislation.
"Trustee" or "Trustees" means each Person who has signed this
Trust Agreement as a trustee, so long as such Person shall
continue as a trustee in accordance with the terms hereof, and
all other Persons who may from time to time be duly appointed,
qualified and
7
serving as Trustees in accordance with the provisions hereof,
and references herein to a Trustee or the Trustees shall refer
to such Person or Persons solely in their capacity as trustees
hereunder.
ARTICLE 2
TRUST INDENTURE ACT
SECTION 2.1. Trust Indenture Act; Application.
(a) This Trust Agreement is subject to the provisions
of the Trust Indenture Act that are required to be part of this Trust
Agreement and shall, to the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee
which is a Trustee for the purposes of the Trust Indenture Act.
(c) If and to the extent that any provision of this
Trust Agreement conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
(d) The application of the Trust Indenture Act to
this Trust Agreement shall not affect the Trust's classification as a grantor
trust for United States federal income tax purposes.
SECTION 2.2. Lists of Holders of Securities.
(a) Each of the Sponsor and the Administrative
Trustees on behalf of the Trust shall provide the Property Trustee (i), except
while the Capital Securities are represented by one or more Global Securities,
at least five Business Days prior to the date for payment of Distributions, a
list, in such form as the Property Trustee may reasonably require, of the
names and addresses of the Holders of the Securities ("List of Holders") as of
the record date relating to the payment of such Distributions, and (ii) at any
other time, within 30 days of receipt by the Trust of a written request from
the Property Trustee for a List of Holders, as of a date no more than 15 days
before such List of Holders is given to the Property Trustee; provided that
neither the Sponsor nor the Administrative Trustees on behalf of the Trust
shall be obligated to provide such List of Holders at any time the List of
Holders does not differ from the most recent List of Holders given to the
Property Trustee by the Sponsor and the Administrative Trustees on behalf of
the Trust. The Property Trustee shall preserve, in as current a form as is
reasonably practicable, all information contained in Lists of Holders given to
it or which it receives in the capacity as Paying Agent (if acting in such
capacity), provided that the Property Trustee may destroy any List of Holders
previously given to it on receipt of a new List of Holders.
(b) The Property Trustee shall comply with its
obligations under, and shall be entitled to the benefits of, Sections 311(a),
311 (b) and 312(b) of the Trust Indenture Act.
SECTION 2.3. Reports by the Property Trustee.
Within 60 days after May 15 of each year (commencing with May
15, 2003), the Property Trustee shall provide to the Holders of the Capital
Securities such reports as are required by Section 313 of the Trust Indenture
Act, if any, in the form and in the manner provided by Section 313 of the
Trust Indenture Act. The Property Trustee shall also comply with the
requirements of Section 313 (d) of the Trust Indenture Act.
8
SECTION 2.4. Periodic Reports to the Property Trustee.
Each of the Sponsor and the Administrative Trustees on behalf
of the Trust shall provide to the Property Trustee such documents, reports and
information as required by Section 314 of the Trust Indenture Act (if any) and
the compliance certificate required by Section 314 of the Trust Indenture Act
in the form, in the manner and at the times required by Section 314 of the
Trust Indenture Act, but in no event later than 120 days after the end of each
calendar year.
SECTION 2.5. Evidence of Compliance with Conditions Precedent.
Each of the Sponsor and the Administrative Trustees on behalf
of the Trust shall provide to the Property Trustee such evidence of compliance
with any conditions precedent, if any, provided for in this Trust Agreement
that relate to any of the matters set forth in Section 314(c) of the Trust
Indenture Act. Any certificate or opinion required to be given by an officer
pursuant to Section 314(c)(1) may be given in the form of an Officer's
Certificate.
SECTION 2.6. Trust Enforcement Events; Waiver.
(a) The Holders of a Majority in Liquidation Amount
of the Capital Securities may, by vote or written consent, on behalf of the
Holders of all of the Capital Securities, waive any past Trust Enforcement
Event in respect of the Capital Securities and its consequences, provided
that, if the underlying Indenture Event of Default:
(i) is not waivable under the Indenture, the
Trust Enforcement Event under the Trust Agreement shall
also not be waivable; or
(ii) requires the consent or vote of the
Holders of greater than a majority in principal amount
of the Debentures (a "Super Majority") to be waived
under the Indenture, the related Trust Enforcement Event
under the Trust Agreement may only be waived by the vote
or written consent of the Holders of at least the
proportion in liquidation amount of the Capital
Securities that the relevant Super Majority represents
of the aggregate principal amount of the Debentures
outstanding.
The foregoing provisions of this Section 2.6(a) shall be in
lieu of Section 316(a)(1)(B) of the Trust Indenture Act and such Section
316(a)(1)(B) of the Trust Indenture Act is hereby expressly excluded from this
Trust Agreement and the Securities, as permitted by the Trust Indenture Act.
Upon such waiver, any such default shall cease to exist, and any Trust
Enforcement Event with respect to the Capital Securities arising therefrom
shall be deemed to have been cured, for every purpose of this Trust Agreement
and the Capital Securities, but no such waiver shall extend to any subsequent
or other Trust Enforcement Event with respect to the Capital Securities or
impair any right consequent thereon. Any waiver by the Holders of the Capital
Securities of a Trust Enforcement Event with respect to the Capital Securities
shall also be deemed to constitute a waiver by the Holders of the Common
Securities of any such Trust Enforcement Event with respect to the Common
Securities for all purposes of this Trust Agreement without any further act,
vote, or consent of the Holders of the Common Securities.
(b) The Holders of a Majority in Liquidation Amount
of the Common Securities may, by vote or written consent, on behalf of the
Holders of all of the Common Securities, waive any past Trust Enforcement
Event in respect of the Common Securities and its consequences, provided that,
if the underlying Indenture Event of Default:
9
(i) is not waivable under the Indenture,
except where the Holders of the Common Securities are
deemed to have waived such Trust Enforcement Event under
the Trust Agreement as provided below in this Section
2.6(b), the Trust Enforcement Event under the Trust
Agreement shall also not be waivable; or
(ii) requires the consent or vote of a Super
Majority to be waived under the Indenture, except where
the Holders of the Common Securities are deemed to have
waived such Trust Enforcement Event under the Trust
Agreement as provided below in this Section 2.6(b), the
Trust Enforcement Event under the Trust Agreement may
only be waived by the vote or written consent of the
Holders of at least the proportion in liquidation amount
of the Common Securities that the relevant Super
Majority represents of the aggregate principal amount of
the Debentures outstanding;
provided further, each Holder of Common Securities will be deemed to have
waived any Trust Enforcement Event and all Trust Enforcement Events with
respect to the Common Securities and the consequences thereof until all Trust
Enforcement Events with respect to the Capital Securities have been cured,
waived or otherwise eliminated, and until such Trust Enforcement Events with
respect to the Capital Securities have been so cured, waived or otherwise
eliminated, the Property Trustee will be deemed to be acting solely on behalf
of the Holders of the Capital Securities and only the Holders of the Capital
Securities will have the right to direct the Property Trustee in accordance
with the terms of the Securities. The foregoing provisions of this Section
2.6(b) shall be in lieu of Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust
Indenture Act and such Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust
Indenture Act are hereby expressly excluded from this Trust Agreement and the
Securities, as permitted by the Trust Indenture Act. Subject to the foregoing
provisions of this Section 2.6(b), upon such cure, waiver or other
elimination, any such default shall cease to exist and any Trust Enforcement
Event with respect to the Common Securities arising therefrom shall be deemed
to have been cured for every purpose of this Trust Agreement, but no such
waiver shall extend to any subsequent or other Trust Enforcement Event with
respect to the Common Securities or impair any right consequent thereon.
(c) A waiver of an Indenture Event of Default by the
Property Trustee at the direction of the Holders of the Capital Securities
constitutes a waiver of the corresponding Trust Enforcement Event with respect
to the Capital Securities under this Trust Agreement. The foregoing provisions
of this Section 2.6(c) shall be in lieu of Section 316(a)(1)(B) of the Trust
Indenture Act and such Section 316(a)(1)(B) of the Trust Indenture Act is
hereby expressly excluded from this Trust Agreement and the Securities, as
permitted by the Trust Indenture Act.
SECTION 2.7. Trust Enforcement Event; Notice.
(a) The Property Trustee shall, within 90 days after
the occurrence of a Trust Enforcement Event actually known to a Responsible
Officer of the Property Trustee, transmit by mail, first class postage
prepaid, to the Holders of the Securities, notices of all such defaults with
respect to the Securities, unless such defaults have been cured before the
giving of such notice (the term "defaults" for the purposes of this Section
2.7(a) being hereby defined to be an Indenture Event of Default, not including
any periods of grace provided for therein and irrespective of the giving of
any notice provided therein); provided that, except for a default in the
payment of principal of (or premium, if any) or interest on any of the
Debentures, the Property Trustee shall be protected fully in withholding such
notice if and so long as a Responsible Officer of the Property Trustee in good
faith determines that the withholding of such notice is in the interests of
the Holders of the Securities.
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(b) The Property Trustee shall not be deemed to have
knowledge of any default except:
(i) a default under Sections 5.1(1) and
5.1(2) of the Indenture; or
(ii) any default as to which the Property
Trustee shall have received written notice or of which a
Responsible Officer of the Property Trustee charged with
the administration of this Trust Agreement shall have
actual knowledge.
ARTICLE 3
ORGANIZATION
SECTION 3.1. Name and Organization.
The Trust hereby continued is named "Banknorth Capital Trust
II" as such name may be modified from time to time by the Administrative
Trustees following written notice to the Holders of Securities, the Property
Trustee and the Delaware Trustee. The Trust's activities may be conducted
under the name of the Trust or any other name deemed advisable by the
Administrative Trustees.
SECTION 3.2. Office.
The address of the principal office of the Trust is c/o
Banknorth Group, Inc., X.X. Xxx 0000, Xxx Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxx
00000. On 10 Business Days' written notice to the Holders of Securities, each
of the Property Trustee, the Delaware Trustee and the Administrative Trustees
may designate another principal office.
SECTION 3.3. Purpose.
The exclusive purposes and functions of the Trust are (a) to
issue Securities, (b) to use the proceeds from the issuance of the Securities
to purchase a corresponding amount of Debentures, (c) to maintain the Trust's
status as a grantor trust for federal issuance tax purposes, and (d) except as
otherwise limited herein, to engage in only those other activities necessary
or incidental thereto. The Trust shall not borrow money, issue debt or
reinvest proceeds derived from investments, pledge any of its assets or
otherwise undertake (or permit to be undertaken) any activity that would cause
the Trust to be classified as other than a grantor trust for United States
federal income tax purposes.
By the acceptance of this Trust, the Trustees, the Sponsor, the
Holders of the Capital Securities and Common Securities and the Capital
Securities Beneficial Owners will agree to treat the Trust as a grantor trust
for United States federal income tax purposes and not to take any position
which is contrary to such classification.
SECTION 3.4. Authority.
Subject to the limitations provided in this Trust Agreement and
to the specific duties of the Property Trustee, the Administrative Trustees
shall have exclusive authority to carry out the purposes of the Trust. An
action taken by the Administrative Trustees in accordance with their powers
shall constitute the act of and serve to bind the Trust and an action taken by
the Property Trustee on behalf of the Trust in accordance with its powers
shall constitute the act of and serve to bind the Trust. In dealing with the
Trustees acting on behalf of the Trust, no Person shall be required to inquire
into the authority of
11
the Trustees to bind the Trust. Persons dealing with the Trust are entitled to
rely conclusively on the power and authority of the Trustees as set forth in
this Trust Agreement.
(a) Except as expressly set forth in this Trust
Agreement and except if a meeting of the Administrative Trustees is called
with respect to any matter over which the Administrative Trustees have power
to act, any power of the Administrative Trustees may be exercised by, or with
the consent of, any one such Administrative Trustee.
(b) Except as otherwise required by the Business
Trust Act or applicable law, any Administrative Trustee is authorized to
execute on behalf of the Trust any documents which the Administrative Trustees
have the power and authority to cause the Trust to execute pursuant to Section
3.6(b).
(c) An Administrative Trustee may, by power of
attorney consistent with applicable law, delegate to any other natural person
over the age of 21 his or her power for the purposes of signing any documents
which the Administrative Trustees have power and authority to cause the Trust
to execute pursuant to Section 3.6; provided that such person is a United
States Person as defined in Section 7701(a)(30) of the Code.
SECTION 3.5. Title to Property of the Trust.
Except as provided in Section 3.8 with respect to the
Debentures and the Property Account or as otherwise provided in this Trust
Agreement, legal title to all assets of the Trust shall be vested in the
Trust. The Holders shall not have legal title to any part of the assets of the
Trust, but shall have an undivided beneficial ownership interest in the assets
of the Trust.
SECTION 3.6. Powers and Duties of the Administrative
Trustees.
The Administrative Trustees shall have the exclusive power,
duty and authority, and are hereby authorized and directed, to cause the Trust
to engage in the following activities:
(a) to establish the terms and form of the Capital
Securities and the Common Securities in the manner specified in Section 7.1 to
execute, enter into, deliver and perform the Common Securities Subscription
Agreement and to execute, deliver, issue and sell the Securities in accordance
with this Trust Agreement; provided, however, that the Trust may issue no more
than one series of Capital Securities and no more than one series of Common
Securities, and, provided further, that there shall be no interests in the
Trust other than the Securities, and the issuance of Securities shall be
limited to a simultaneous issuance of both Capital Securities and Common
Securities on the Closing Date;
(b) in connection with the issuance of the Capital
Securities, at the direction of the Sponsor, to execute and file any documents
prepared by the Sponsor, or take any acts as determined by the Sponsor to be
necessary, in order to qualify or register all or part of the Capital
Securities in any State in which the Sponsor has determined to qualify or
register such Capital Securities for sale;
(c) to execute, enter into and deliver the Debenture
Subscription Agreement or Agreements and to acquire the Debentures in exchange
for the proceeds from the issuance and sale of the Capital Securities and the
Common Securities; provided, however, that the Administrative Trustees shall
cause legal title to the Debentures to be held of record in the name of the
Property Trustee for the benefit of the Holders;
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(d) to give the Sponsor and the Property Trustee
prompt written notice of the occurrence of a Special Event; provided that the
Administrative Trustees shall consult with the Sponsor and the Property
Trustee before taking or refraining from taking any action in relation to any
such Special Event;
(e) to establish a record date with respect to all
actions to be taken hereunder that require a record date be established,
including and with respect to, for the purposes of Section 316(c) of the Trust
Indenture Act, Distributions, voting rights, redemptions and exchanges, and to
issue relevant notices to the Holders of Capital Securities and Holders of
Common Securities as to such actions and applicable record dates;
(f) to take all actions and perform such duties as
may be required of the Administrative Trustees pursuant to the terms of this
Trust Agreement and the Securities;
(g) to bring or defend, pay, collect, compromise,
arbitrate, resort to legal action or otherwise adjust claims or demands of or
against the Trust ("Legal Action"), unless, pursuant to Section 3.8(e), the
Property Trustee has the exclusive power to bring such Legal Action;
(h) to employ or otherwise engage employees and
agents (who may be designated as officers with titles) and managers,
contractors, advisors and consultants to conduct only those services that the
Administrative Trustees have authority to conduct directly, and to pay
reasonable compensation for such services, provided that such person is a
United States Person as defined in Section 7701(a)(30) of the Code;
(i) to cause the Trust to comply with the Trust's
obligations under the Trust Indenture Act;
(j) to give the certificate required by Section
314(a)(4) of the Trust Indenture Act to the Property Trustee, which
certificate may be executed by any Administrative Trustee;
(k) to incur expenses that are necessary or
incidental to carry out any of the purposes of the Trust;
(l) to act as, or appoint another Person to act as,
registrar and transfer agent for the Securities;
(m) to give prompt written notice to the Holders of
the Securities of any notice received from the Debenture Issuer of its
election to defer payments of interest on the Debentures by extending the
interest payment period under the Debentures as authorized by the Indenture;
(n) to take all action that may be necessary or
appropriate for the preservation and the continuation of the Trust's valid
existence, rights, franchises and privileges as a statutory business trust
under the laws of the State of Delaware and of each other jurisdiction in
which such existence is necessary to protect the limited liability of the
Holders of the Capital Securities and the Holders of the Common Securities or
to enable the Trust to effect the purposes for which the Trust was created;
(o) to take any action, not inconsistent with
applicable law, that the Administrative Trustees determine in their discretion
to be necessary or desirable in carrying out the purposes and functions of the
Trust as set out in Section 3.3 or the activities of the Trust as set out in
this Section 3.6, including, but not limited to:
13
(i) causing the Trust not to be deemed to be
an Investment Company required to be registered under
the Investment Company Act;
(ii) causing the Trust to be classified as a
grantor trust for United States federal income tax
purposes; and
(iii) cooperating with the Debenture Issuer to
ensure that the Debentures will be treated as
indebtedness of the Debenture Issuer for United States
federal income tax purposes.
(and, for purposes specified in (i) through (iii) above,
the Sponsor is also hereby authorized to take any such action not inconsistent
with applicable law that it determines to be necessary or desirable);
(p) to take all action necessary to cause all
applicable tax returns and tax information reports that are required to be
filed with respect to the Trust to be duly prepared and filed by the
Administrative Trustees, on behalf of the Trust; and
(q) to execute and deliver all documents or
instruments, perform all duties and powers, and do all things for and on
behalf of the Trust in all matters necessary or incidental to the foregoing.
The Administrative Trustees shall exercise the powers set forth
in this Section 3.6 in a manner that is consistent with the purposes and
functions of the Trust set out in Section 3.3, and the Administrative Trustees
shall have no power to, and shall not, take any action that is inconsistent
with the purposes and functions of the Trust set forth in Section 3.3.
Subject to this Section 3.6, the Administrative Trustees shall
have none of the powers or the authority of the Property Trustee set forth in
Section 3.8.
Any expenses incurred by the Administrative Trustees pursuant
to this Section 3.6 shall be reimbursed by the Debenture Issuer.
SECTION 3.7. Prohibition of Actions by the Trust and the
Trustees.
(a) The Trust shall not, and none of the Trustees
(including the Property Trustee) shall cause the Trust to, engage in any
activity other than as required or authorized by this Trust Agreement. In
particular, the Trust shall not and none of the Trustees (including the
Property Trustee) shall cause the Trust to:
(i) invest any proceeds received by the Trust
from holding the Debentures, but shall distribute all
such proceeds to Holders of Securities pursuant to the
terms of this Trust Agreement and of the Securities;
(ii) acquire any assets other than as
expressly provided herein;
(iii) possess Trust property for other than a
Trust purpose;
(iv) make any loans (other than those
represented by the Debentures) or incur any
indebtedness;
14
(v) possess any power or otherwise act in
such a way as to vary the Trust assets;
(vi) possess any power or otherwise act in
such a way as to vary the terms of the Securities in any
way whatsoever (except to the extent expressly
authorized in this Trust Agreement or by the terms of
the Securities);
(vii) issue any securities or other evidences
of beneficial ownership of, or beneficial interest in,
the Trust other than the Securities;
(viii) other than as provided in this Trust
Agreement or by the terms of the Securities, (A) direct
the time, method and place of exercising any trust or
power conferred upon the Debenture Trustee with respect
to the Debentures, (B) waive any past default that is
waivable under the Indenture, (C) exercise any right to
rescind or annul any declaration that the principal of
all the Debentures shall be due and payable, or (D)
consent to any amendment, modification or termination of
the Indenture or the Debentures where such consent shall
be required unless the Trust shall have received an
opinion of counsel to the effect that such modification
will not cause more than an insubstantial risk that the
Trust will be deemed an investment company required to
be registered under the Investment Company Act, or that
the Trust will be classified as other than a grantor
trust for United States federal income tax purposes;
(ix) take any action inconsistent with the
status of the Trust as a grantor trust for United States
federal income tax purposes; or
(x) revoke any action previously authorized
or approved by vote of the Holders of the Capital
Securities.
SECTION 3.8. Powers and Duties of the Property Trustee.
(a) The legal title to the Debentures shall be owned
by and held of record in the name of the Property Trustee for the benefit of
the Trust and the Holders of the Securities. The right, title and interest of
the Property Trustee to the Debentures shall vest automatically in each Person
who may hereafter be appointed as Property Trustee in accordance with Section
6.6. Such vesting and cessation of title shall be effective whether or not
conveyancing documents with regard to the Debentures have been executed and
delivered.
(b) The Property Trustee shall not transfer its
right, title and interest in the Debentures to the Administrative Trustees or
to the Delaware Trustee (if the Property Trustee does not also act as Delaware
Trustee).
(c) The Property Trustee shall:
(i) establish and maintain a segregated
non-interest bearing trust account (the "Property
Account") in the name of and under the exclusive control
of the Property Trustee on behalf of the Holders of the
Securities and, upon the receipt of payments of funds
made in respect of the Debentures held by the Property
Trustee, deposit such funds into the Property Account
and make payments to the Holders of the Capital
Securities and Holders of the Common Securities from the
Property Account in accordance with Section 7.2. Funds
in
15
the Property Account shall be held uninvested until
disbursed in accordance with this Trust Agreement. The
Property Account shall be an account that is maintained
with a banking institution the rating on whose long-term
unsecured indebtedness is at least equal to the rating
assigned to the Capital Securities by a "nationally
recognized statistical rating organization", within the
meaning of Rule 436(g)(2) under the Securities Act;
(ii) engage in such ministerial activities as
shall be necessary or appropriate to effect the
redemption of the Capital Securities and the Common
Securities to the extent the Debentures are redeemed or
mature; and
(iii) upon written notice of distribution
issued by the Administrative Trustees in accordance with
the terms of the Securities, engage in such ministerial
activities as so directed and as shall be necessary or
appropriate to effect the distribution of the Debentures
to Holders of Securities upon the occurrence of a
Special Event.
(d) The Property Trustee shall take all actions and
perform such duties as may be specifically required of the Property Trustee
pursuant to the terms of this Trust Agreement and the Securities.
(e) The Property Trustee shall take any Legal Action
which arises out of or in connection with a Trust Enforcement Event of which a
Responsible Officer of the Property Trustee has actual knowledge or the
Property Trustee's duties and obligations under this Trust Agreement or the
Trust Indenture Act; provided, however, that if a Trust Enforcement Event has
occurred and is continuing and such event is attributable to the failure of
the Debenture Issuer to pay interest, principal or other required payments on
the Debentures on the date such interest, principal or other required payments
are otherwise payable (or in the case of redemption, on the redemption date),
then a Holder of Capital Securities may directly institute a proceeding
against the Debenture Issuer for enforcement of payment to such Holder of the
principal of or interest on Debentures having a principal amount equal to the
aggregate liquidation amount of the Capital Securities of such Holder (a
"Direct Action") on or after the respective due date specified in the
Debentures. Notwithstanding anything to the contrary in this Trust Agreement
or the Indenture, the Debenture Issuer shall have the right to set-off any
payment it is otherwise required to make under the Indenture in respect of any
Capital Security to the extent the Debenture Issuer has heretofore made, or is
currently on the date of such payment making, a payment under the Guarantee
relating to such Capital Security or under Section 5.8 of the Indenture.
(f) The Property Trustee shall continue to serve as
a Trustee until either:
(i) the Trust has been completely liquidated
and the proceeds of the liquidation distributed to the
Holders of Securities pursuant to the terms of the
Securities; or
(ii) a Successor Property Trustee has been
appointed and has accepted that appointment in
accordance with Section 6.6.
(g) The Property Trustee shall have the legal power
to exercise all of the rights, powers and privileges of a holder of Debentures
under the Indenture and, if a Trust Enforcement Event actually known to a
Responsible Officer of the Property Trustee occurs and is continuing, the
Property Trustee shall, for the benefit of Holders of the Securities, enforce
its rights as holder of the Debentures subject to the rights of the Holders
pursuant to the terms of such Securities.
16
(h) The Property Trustee may authorize one or more
Persons (each, a "Paying Agent") to pay Distributions, redemption payments or
liquidation payments on behalf of the Trust with respect to all Securities and
any such Paying Agent shall comply with Section 317 (b) of the Trust Indenture
Act. Any Paying Agent may be removed by the Property Trustee at any time and a
successor Paying Agent or additional Paying Agents may be appointed at any
time by the Property Trustee.
(i) Subject to this Section 3.8, the Property Trustee
shall have none of the duties, liabilities, powers or the authority of the
Administrative Trustees set forth in Section 3.6.
The Property Trustee shall exercise the powers set forth in
this Section 3.8 in a manner that is consistent with the purposes and
functions of the Trust set out in Section 3.3, and the Property Trustee shall
have no power to, and shall not, take any action that is inconsistent with the
purposes and functions of the Trust set out in Section 3.3.
SECTION 3.9. Certain Duties and Responsibilities of the
Property Trustee.
(a) The Property Trustee, before the occurrence of
any Trust Enforcement Event and after the curing of all Trust Enforcement
Events that may have occurred, shall undertake to perform only such duties as
are specifically set forth in this Trust Agreement and no implied covenants
shall be read into this Trust Agreement against the Property Trustee. In case
a Trust Enforcement Event has occurred (that has not been cured or waived
pursuant to Section 2.6) of which a Responsible Officer of the Property
Trustee has actual knowledge, the Property Trustee shall exercise such of the
rights and powers vested in it by this Trust Agreement, and use the same
degree of care and skill in their exercise, as a prudent person would exercise
or use under the circumstances in the conduct of his or her own affairs.
(b) No provision of this Trust Agreement shall be
construed to relieve the Property Trustee from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct, except
that:
(i) prior to the occurrence of a Trust
Enforcement Event and after the curing or waiving of all
such Trust Enforcement Events that may have occurred:
a. the duties and obligations of the
Property Trustee shall be
determined solely by the express
provisions of this Trust Agreement
and the Property Trustee shall not
be liable except for the
performance of such duties and
obligations as are specifically
set forth in this Trust Agreement,
and no implied covenants or
obligations shall be read into
this Trust Agreement against the
Property Trustee; and
b. in the absence of bad faith on the
part of the Property Trustee, the
Property Trustee may conclusively
rely, as to the truth of the
statements and the correctness of
the opinions expressed therein,
upon any certificates or opinions
furnished to the Property Trustee
and conforming to the requirements
of this Trust Agreement; but in
the case of any such certificates
or opinions that by any provision
hereof are specifically required
to be
17
furnished to the Property Trustee,
the Property Trustee shall be
under a duty to examine the same
to determine whether or not they
substantially conform to the
requirements of this Trust
Agreement but need not confirm or
investigate the accuracy of any
mathematical calculations or other
facts stated therein;
(ii) the Property Trustee shall not be liable
for any error of judgment made in good faith by a
Responsible Officer of the Property Trustee, unless it
shall be proved that the Property Trustee was negligent
in ascertaining the pertinent facts;
(iii) the Property Trustee shall not be liable
with respect to any action taken or omitted to be taken
by it without negligence, in good faith in accordance
with the direction of the Holders of not less than a
Majority in Liquidation Amount of the Securities
relating to the time, method and place of conducting any
proceeding for any remedy available to the Property
Trustee, or exercising any trust or power conferred upon
the Property Trustee under this Trust Agreement;
(iv) no provision of this Trust Agreement
shall require the Property Trustee to expend or risk its
own funds or otherwise incur personal financial
liability in the performance of any of its duties or in
the exercise of any of its rights or powers, if it shall
have reasonable grounds for believing that the repayment
of such funds or liability is not reasonably assured to
it under the terms of this Trust Agreement or indemnity
reasonably satisfactory to the Property Trustee against
such risk or liability is not reasonably assured to it.
(v) the Property Trustee's sole duty with
respect to the custody, safe-keeping and physical
preservation of the Debentures and the Property Account
shall be to deal with such property in a similar manner
as the Property Trustee deals with similar property for
its own account, subject to the protections and
limitations on liability afforded to the Property
Trustee under this Trust Agreement and the Trust
Indenture Act;
(vi) the Property Trustee shall have no duty
or liability for or with respect to the value,
genuineness, existence or sufficiency of the Debentures
or the payment of any taxes or assessments levied
thereon or in connection therewith;
(vii) the Property Trustee shall not be liable
for any interest on any money received by it except as
it may otherwise agree in writing with the Sponsor.
Money held by the Property Trustee need not be
segregated from other funds held by it except in
relation to the Property Account maintained by the
Property Trustee pursuant to Section 3.8(c)(i) and
except to the extent otherwise required by law; and
(viii) the Property Trustee shall not be
responsible for monitoring the compliance by the
Administrative Trustees or the Sponsor with their
respective duties under this Trust Agreement, nor shall
the Property Trustee be liable for any default or
misconduct of the Administrative Trustees or the
Sponsor.
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SECTION 3.10. Certain Rights of Property Trustee.
(a) Subject to the provisions of Section 3.9:
(i) the Property Trustee may conclusively
rely and shall be fully protected in acting or
refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document
(whether in its original or facsimile form) believed by
it to be genuine and to have been signed, sent or
presented by the proper party or parties;
(ii) any direction or act of the Sponsor or
the Administrative Trustees contemplated by this Trust
Agreement shall be sufficiently evidenced by an
Officer's Certificate;
(iii) whenever in the administration of this
Trust Agreement, the Property Trustee shall deem it
desirable that a matter be proved or established before
taking, suffering or omitting any action hereunder, the
Property Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad
faith on its part, request and conclusively rely upon an
Officer's Certificate which, upon receipt of such
request, shall be promptly delivered by the Sponsor or
the Administrative Trustees;
(iv) the Property Trustee shall have no duty
to see to any recording, filing or registration of any
instrument (including any financing or continuation
statement or any filing under tax or securities laws) or
any re-recording, refiling or registration thereof;
(v) the Property Trustee may consult with
counsel of its choice or other experts and the advice or
opinion of such counsel and experts with respect to
legal matters or advice within the scope of such
experts' area of expertise shall be full and complete
authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith
and in accordance with such advice or opinion, such
counsel may be counsel to the Sponsor or any of its
Affiliates, and may include any of its employees. The
Property Trustee shall have the right at any time to
seek instructions concerning the administration of this
Trust Agreement from any court of competent
jurisdiction;
(vi) the Property Trustee shall be under no
obligation to exercise any of the rights or powers
vested in it by this Trust Agreement at the request or
direction of any Holder, unless such Holder shall have
provided to the Property Trustee security and indemnity,
reasonably satisfactory to the Property Trustee, against
the costs, expenses (including reasonable attorneys'
fees and expenses and the expenses of the Property
Trustee's agents, nominees or custodians) and
liabilities that might be incurred by it in complying
with such request or direction, including such
reasonable advances as may be requested by the Property
Trustee; provided that, nothing contained in this
Section 3.10(a) shall be taken to relieve the Property
Trustee, upon the occurrence of a Trust Enforcement
Event, of its obligation to exercise the rights and
powers vested in it by this Trust Agreement;
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(vii) the Property Trustee shall not be bound
to make any investigation into the facts or matters
stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the
Property Trustee, in its discretion, may make such
further inquiry or investigation into such facts or
matters as it may see fit at the expense of the Sponsor
and shall incur no liability of any kind by reason of
such inquiry or investigation;
(viii) the Property Trustee may execute any of
the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents,
custodians, nominees or attorneys and the Property
Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney
appointed with due care by it hereunder, provided that
such agent, custodian, nominee or attorney is a United
States Person as defined in Section 7701(a)(30) of the
Code;
(ix) any authorized or required action taken
by the Property Trustee or its agents hereunder shall
bind the Trust and the Holders of the Securities, and
the signature of the Property Trustee or its agents
alone shall be sufficient and effective to perform any
such action and no third party shall be required to
inquire as to the authority of the Property Trustee to
so act or as to its compliance with any of the terms and
provisions of this Trust Agreement, both of which shall
be conclusively evidenced by the Property Trustee's or
its agent's taking such action;
(x) whenever in the administration of this
Trust Agreement the Property Trustee shall deem it
desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action
hereunder, the Property Trustee (i) may request
instructions from the Holders of the Securities which
instructions may only be given by the Holders of the
same proportion in liquidation amount of the Securities
as would be entitled to direct the Property Trustee
under the terms of the Securities in respect of such
remedy, right or action, (ii) may refrain from enforcing
such remedy or right or taking such other action until
such instructions are received, and (iii) shall be
protected in conclusively relying on or acting in or
accordance with such instructions;
(xi) except as otherwise expressly provided by
this Trust Agreement, the Property Trustee shall not be
under any obligation to take any action that is
discretionary under the provisions of this Trust
Agreement;
(xii) the Property Trustee shall not be liable
for any action taken, suffered or omitted to be taken by
it without negligence or willful misconduct, in good
faith and reasonably believed by it to be authorized or
within the discretion, rights or powers conferred upon
it by this Trust Agreement;
(xiii) without prejudice to any other rights
available to the Property Trustee under applicable law,
when the Property Trustee incurs expenses or renders
services in connection with a bankruptcy, such expenses
(including the fees and expenses of its counsel) and the
compensation for such services are
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intended to constitute expenses of administration under
any bankruptcy law or law relating to creditors rights
generally; and
(xiv) the Property Trustee shall not be charged
with knowledge of a Trust Enforcement Event unless a
Responsible Officer of the Property Trustee obtains
actual knowledge of such event or the Property Trustee
receives written notice of such event from Holders
holding more than a Majority in Liquidation Amount of
the Capital Securities;
(b) No provision of this Trust Agreement shall be
deemed to impose any duty or obligation on the Property Trustee to perform any
act or acts or exercise any right, power, duty or obligation conferred or
imposed on it, in any jurisdiction in which it shall be illegal, or in which
the Property Trustee shall be unqualified or incompetent in accordance with
applicable law, to perform any such act or acts, or to exercise any such
right, power, duty or obligation. No permissive power or authority available
to the Property Trustee shall be construed to be a duty.
SECTION 3.11. Delaware Trustee.
Notwithstanding any other provision of this Trust Agreement
other than Section 6.2, the Delaware Trustee shall not be entitled to exercise
any powers, nor shall the Delaware Trustee have any of the duties and
responsibilities of the Administrative Trustees or the Property Trustee
described in this Trust Agreement. Except as set forth in Section 6.2, the
Delaware Trustee shall be a Trustee for the sole and limited purpose of
fulfilling the requirements of Section 3807(a) of the Business Trust Act. In
the event the Delaware Trustee shall at any time be required to take any
action or perform any duty hereunder with respect to the Trust, the Delaware
Trustee shall be entitled to all of the same rights as the Property Trustee
listed in Section 3.9(b) and Section 3.10.
SECTION 3.12. Execution of Documents.
Except as otherwise required by the Business Trust Act or
applicable law, any Administrative Trustee is authorized to execute on behalf
of the Trust any documents that the Administrative Trustees have the power and
authority to execute pursuant to Section 3.6.
SECTION 3.13. Not Responsible for Recitals or Issuance of
Securities.
The recitals contained in this Trust Agreement and the
Securities shall be taken as the statements of the Sponsor, and the Trustees
do not assume any responsibility for their correctness. The Trustees make no
representations as to the value or condition of the property of the Trust or
any part thereof. The Trustees make no representations as to the validity or
sufficiency of this Trust Agreement, the Securities, the Debentures or the
Indenture.
SECTION 3.14. Duration of Trust.
The Trust shall exist until dissolved and terminated pursuant
to the provisions of Article 8 hereof.
SECTION 3.15. Mergers.
(a) The Trust may not consolidate, amalgamate, merge
with or into, or be replaced by, or convey, transfer or lease its properties
and assets substantially as an entirety to any Person, except as described in
Section 3.15(b) and (c) or Section 8.2.
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(b) The Trust may, at the request of the Sponsor and
with the consent of the Administrative Trustees or, if there are more than
two, a majority of the Administrative Trustees and without the consent of the
Holders of the Securities, the Delaware Trustee or the Property Trustee,
consolidate, amalgamate, merge with or into, or be replaced by or convey,
transfer or lease its properties substantially as an entirety to a trust
organized as such under the laws of any State; provided, that:
(i) if the Trust is not the successor, such
successor entity (the "Successor Entity") either:
a. expressly assumes all of the
obligations of the Trust with
respect to the Securities; or
b. substitutes for the Capital
Securities other securities having
substantially the same terms as
the Capital Securities (the
"Successor Securities") so long as
the Successor Securities rank the
same as the Capital Securities
rank in priority with respect to
Distributions and payments upon
liquidation, redemption and
otherwise;
(ii) the Debenture Issuer expressly appoints a
trustee of such Successor Entity that possesses the same
powers and duties as the Property Trustee as the holder
of the Debentures;
(iii) the Capital Securities or any successor
Securities are listed, or any Successor Securities will
be listed upon notification of issuance, on any national
securities exchange or with any other or organization on
which the Capital Securities are then listed or quoted;
(iv) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not
cause the Capital Securities (including any Successor
Securities) to be downgraded by any nationally
recognized statistical rating organization;
(v) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and privileges
of the Holders of the Capital Securities (including any
Successor Securities) in any material respect;
(vi) such Successor Entity has a purpose
substantially identical to that of the Trust;
(vii) prior to such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease
the Sponsor has received an opinion of independent
counsel to the Trust experienced in such matters to the
effect that:
a. such merger, consolidation,
amalgamation, replacement,
conveyance, transfer or lease does
not adversely affect the rights,
preferences and privileges of the
Holders of the Capital Securities
(including any Successor
Securities) in any material
respect;
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b. following such merger,
consolidation, amalgamation,
replacement, conveyance, transfer
or lease neither the Trust nor the
Successor Entity will be required
to register as an Investment
Company; and
c. following such merger,
consolidation, amalgamation or
replacement, the Trust (or the
Successor Entity) will continue to
be classified as a grantor trust
for United States federal income
tax purposes;
(viii) the Sponsor or any permitted successor or
assignee owns all of the common securities and
guarantees the obligations of such Successor Entity
under the Successor Securities at least to the extent
provided by the Securities Guarantee and such Successor
Entity expressly assumes all of the obligations of the
Trust with respect to the Trustees.
(c) Notwithstanding Section 3.15(b), the Trust shall
not, except with the consent of Holders of 100% in aggregate liquidation
amount of the Securities, consolidate, amalgamate, merge with or into, or be
replaced by or convey, transfer or lease its properties and assets
substantially as an entirety to, any other entity or permit any other entity
to consolidate, amalgamate, merge with or into, or replace it, if such
consolidation, amalgamation, merger, replacement, conveyance, transfer or
lease would cause the Trust or Successor Entity to be classified as other than
a grantor trust for United States federal income tax purposes and each Holder
of the Securities not to be treated as owning an undivided interest in the
Debentures.
SECTION 3.16. Property Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition
or other similar judicial proceeding relative to the Trust or any other
obligor upon the Securities or the property of the Trust or of such other
obligor or their creditors, the Property Trustee (irrespective of whether any
Distributions on the Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the
Property Trustee shall have made any demand on the Trust for the payment of
any past due Distributions) shall be entitled and empowered, to the fullest
extent permitted by law, by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of
any Distributions owing and unpaid in respect of the Securities (or, if the
Securities are original issue discount Securities, such portion of the
liquidation amount as may be specified in the terms of such Securities) and to
file such other papers or documents as may be necessary or advisable in order
to have the claims of the Property Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Property
Trustee, its and counsel) and of the Holders allowed in such judicial
proceeding, and
(b) to collect and receive any moneys or other
property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Property Trustee and, in the event
the Property Trustee shall consent to the making of such payments directly to
the Holders, to pay to the Property Trustee any amount due it for the
reasonable compensation, expenses,
23
disbursements and advances of the Property Trustee, its agents and counsel,
and any other amounts due the Property Trustee.
Nothing herein contained shall be deemed to authorize the Property
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement adjustment or compensation affecting
the Securities or the rights of any Holder thereof or to authorize the
Property Trustee to vote in respect of the claim of any Holder in any such
proceeding.
ARTICLE 4
SPONSOR
SECTION 4.1. Responsibilities of the Sponsor.
In connection with the issue of the Capital Securities, the
Sponsor shall have the exclusive right and responsibility to engage in the
following activities:
(a) to prepare for filing by the Trust with the
Commission under the Securities Act or the Exchange Act, and execute on behalf
of the Trust, one or more registration statements on the applicable forms,
including any amendments thereto, pertaining to the Capital Securities, the
Guarantee and the Debentures;
(b) to determine the States in which to take
appropriate action to qualify or register for sale all or part of the Capital
Securities and to do any and all such acts, other than actions which must be
taken by the Trust, and advise the Trust of actions it must take, and prepare
for execution and filing any documents to be executed and filed by the Trust,
as the Sponsor deems necessary or advisable in order to comply with the
applicable laws of any such States; and
(c) to negotiate the terms of, and execute, an
underwriting agreement and other related agreements providing for the sale of
the Capital Securities.
SECTION 4.2. Indemnification and Fees and Expenses of the
Trustees.
The Sponsor, in its capacity as Debenture Issuer, agrees to
fully indemnify the Property Trustee and the Delaware Trustee for, and to hold
each of them harmless against, any and all loss, liability, claim, damage or
expense incurred without negligence or bad faith on the part of the Property
Trustee or the Delaware Trustee, as the case may be, arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending either of them
against any claim or liability in connection with the exercise or performance
of any of their respective powers or duties hereunder; the provisions of this
Section 4.2 shall survive the resignation or removal of the Delaware Trustee
or the Property Trustee or the termination of this Trust Agreement.
SECTION 4.3. Compensation of the Trustees.
The Sponsor agrees to pay the Property Trustee and the Delaware
Trustee from time to time such compensation for all services rendered by the
Property Trustee and the Delaware Trustee hereunder as may be mutually agreed
upon in writing by the Sponsor and the Property Trustee or the Delaware
Trustee, as the case may be, and, except as otherwise expressly provided
herein, to reimburse the Property Trustee and the Delaware Trustee upon its or
their request for all reasonable expenses, disbursements and advances incurred
or made by the Property Trustee or the Delaware Trustee, as the case may be,
in accordance with the provisions of this Trust Agreement, except any such
expense,
24
disbursement or advance as shall be determined by a court of competent
jurisdiction to have been caused by its or their own negligence or bad faith.
ARTICLE 5
TRUST COMMON SECURITIES HOLDER
SECTION 5.1. Sponsor's Purchase of Common Securities.
At the Closing Date, pursuant to the Common Securities
Subscription Agreement, the Sponsor will purchase all of the Common Securities
issued by the Trust, in an amount equal to at least 3% of the total capital of
the Trust, at the same time as the Capital Securities are issued and sold.
SECTION 5.2. Covenants of the Common Securities Holder.
For so long as the Capital Securities remain outstanding, the
Common Securities Holder will covenant (i) to maintain directly 100% ownership
of the Common Securities, (ii) to cause the Trust to remain a statutory
business trust and not to voluntarily dissolve, wind up, liquidate or be
terminated, except as permitted by this Trust Agreement, (iii) to use its
commercially reasonable efforts to ensure that the Trust will not be an
investment company for purposes of the Investment Company Act, and (iv) to
take no action which would be reasonably likely to cause the Trust to be
classified as other than a grantor trust for United States federal income tax
purposes.
ARTICLE 6
TRUSTEES
SECTION 6.1. Number of Trustees.
The number of Trustees initially shall be five, and:
(a) at any time before the issuance of any Securities, the
Sponsor may, by written instrument, increase or decrease the number of
Trustees;
(b) after the issuance of any Securities, the number of
Trustees may be increased or decreased by vote of the Holders of a
Majority in Liquidation Amount of the Common Securities voting as a
class at a meeting of the Holders of the Common Securities or by
written consent in lieu of such meeting; provided that the number of
Trustees shall be at least three; and provided further that (1) the
Delaware Trustee, in the case of a natural person, shall be a person
who is a resident of the State of Delaware or that, if not a natural
person, is an entity which has its principal place of business in the
State of Delaware and otherwise meets the requirements of applicable
law; (2) at least one Administrative Trustee is an employee or officer
of, or is affiliated with, the Sponsor; and (3) one Trustee shall be
the Property Trustee for so long as this Trust Agreement is required
to qualify as an indenture under the Trust Indenture Act, and such
Trustee may also serve as Delaware Trustee if it meets the applicable
requirements;
(c) at all times, the Property Trustee must be (i) a bank as
defined in Section 581 of the Code or (ii) a U.S. government-owned
agency or U.S. government sponsored enterprise; and
(d) at all times, each Trustee must be a United States
Person as defined in Section 7701(a)(30) of the Code.
25
SECTION 6.2. Delaware Trustee; Eligibility.
If required by the Business Trust Act, one Trustee (which may
be the Property Trustee) (the "Delaware Trustee") shall be:
(a) a natural person who is a resident of the State
of Delaware; or
(b) if not a natural person, an entity which has its
principal place of business in the State of Delaware, and otherwise meets the
requirements of applicable law;
provided that, if the Property Trustee has its principal place of business in
the State of Delaware and otherwise meets the requirements of applicable law,
then the Property Trustee shall also be the Delaware Trustee and Section 3.11
shall have no application.
SECTION 6.3. Property Trustee; Eligibility.
(a) There shall at all times be one Trustee (which
may be the Delaware Trustee) which shall act as Property Trustee which shall:
(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation organized and doing
business under the laws of the United States of America
or any State or Territory thereof or of the District of
Columbia, or a corporation or other Person permitted by
the Commission to act as an institutional trustee under
the Trust Indenture Act, authorized under such laws to
exercise corporate trust owners, having a combined
capital and surplus of at least 50 million U.S. dollars
($50,000,000), and subject to supervision or examination
by federal, State, Territorial or District of Columbia
authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the
requirements of the supervising or examining authority
referred to above, then for the purposes of this Section
6.3(a)(ii), the combined capital and surplus of such
corporation shall be deemed to be its combined capital
and surplus as set forth in its most recent report of
condition so published.
(b) If at any time the Property Trustee shall cease
to be eligible to so act under Section 6.3(a), the Property Trustee shall
immediately resign in the manner and with the effect set forth in Section
6.6(c).
(c) If the Property Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Property Trustee and the Holder of the Common Securities
(as if it were the obligor referred to in Section 310(b) of the Trust
Indenture Act) shall in all respects comply with the provisions of Section
310(b) of the Trust Indenture Act.
(d) The Guarantee shall be deemed to be specifically
described in this Trust Agreement for purposes of clause (i) of the first
proviso contained in Section 310(b) of the Trust Indenture Act.
SECTION 6.4. Qualifications of Administrative Trustees and
Delaware Trustee Generally.
26
Each Administrative Trustee and the Delaware Trustee (unless
the Property Trustee also acts as Delaware Trustee) shall be either a natural
person who is at least 21 years of age or a legal entity that shall act
through one or more Authorized Officers.
SECTION 6.5. Initial Administrative Trustees.
The initial Administrative Trustees shall be:
Xxxxxxx X. Xxxx, Xxxxx X. Xxxxxxx and Xxxxx X. Xxxxxxxx, the
business address of all of whom is c/o Banknorth Group, Inc., X.X. Xxx 0000,
Xxx Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxx 00000.
SECTION 6.6. Appointment, Removal and Resignation of Trustees.
(a) Subject to Section 6.6(b), Trustees may be
appointed or removed without cause at any time:
(i) until the issuance of any Securities, by
written instrument executed by the Sponsor;
(ii) after the issuance of any Securities (but
prior to the occurrence of an Indenture Event of
Default), by vote of the Holders of a Majority in
Liquidation Amount of the Common Securities voting as a
class at a meeting of the Holders of the Common
Securities; and
(iii) after the issuance of the Capital
Securities and the occurrence of an Indenture Event of
Default, and only with respect to each of the Property
Trustee and Delaware Trustee, by vote of the Holders of
a Majority in Liquidation Amount of the Capital
Securities.
(b) The Trustee that acts as Property Trustee shall
not be removed in accordance with Section 6.6(a) until a successor Trustee
possessing the qualifications to act as Property Trustee under Section 6.3(a)
(a "Successor Property Trustee") has been appointed and has accepted such
appointment by written instrument executed by such Successor Property Trustee
and delivered to the Administrative Trustees and the Sponsor. The Trustee that
acts as Delaware Trustee shall not be removed in accordance with Section
6.6(a) until a successor Trustee possessing the qualifications to act as
Delaware Trustee under Sections 6.2 and 6.4 (a "Successor Delaware Trustee")
has been appointed and has accepted such appointment by written instrument
executed by such Successor Delaware Trustee and delivered to the
Administrative Trustees and the Sponsor.
(c) A Trustee appointed to office shall hold office
until his or its successor shall have been appointed, until his death or its
dissolution or until his or its removal or resignation. Any Trustee may resign
from office (without need for prior or subsequent accounting) by an instrument
in writing signed by the Trustee and delivered to the Sponsor and the Trust,
which resignation shall take effect upon such delivery or upon such later date
as is specified therein; provided, however, that:
(i) no such resignation of the Trustee that
acts as the Property Trustee shall be effective:
a. until a Successor Property Trustee
has been appointed and has
accepted such appointment by
instrument executed by such
Successor Property Trustee and
27
delivered to the Trust, the
Sponsor and the resigning Property
Trustee; or
b. until the assets of the Trust have
been completely liquidated and the
proceeds thereof distributed to
the holders of the Securities; and
(ii) no such resignation of the Trustee that
acts as the Delaware Trustee shall be effective until a
Successor Delaware Trustee has been appointed and has
accepted such appointment by instrument executed by such
Successor Delaware Trustee and delivered to the Trust,
the Sponsor and the resigning Delaware Trustee.
(d) The Holders of the Common Securities shall use
their best efforts to promptly appoint a Successor Delaware Trustee or
Successor Property Trustee, as the case may be, if the Property Trustee or the
Delaware Trustee delivers an instrument of resignation in accordance with this
Section 6.6.
(e) If no Successor Property Trustee or Successor
Delaware Trustee, as the case may be, shall have been appointed and accepted
appointment as provided in this Section 6.6 within 60 days after delivery to
the Sponsor and the Trust of an instrument of resignation or removal, the
resigning or removed Property Trustee or Delaware Trustee, as applicable, may
petition at the expense of the Sponsor any court of competent jurisdiction in
the U.S. for appointment of a Successor Property Trustee or Successor Delaware
Trustee, as applicable. Such court may thereupon, after prescribing such
notice, if any, as it may deem proper, appoint a Successor Property Trustee or
Successor Delaware Trustee, as the case may be.
(f) No Property Trustee or Delaware Trustee shall be
liable for the acts or omissions to act of any Successor Property Trustee or
Successor Delaware Trustee, as the case may be.
SECTION 6.7. Vacancies among Trustees.
If a Trustee ceases to hold office for any reason and the
number of Trustees is not reduced pursuant to Section 6.1, or if the number of
Trustees is increased pursuant to Section 6.1, a vacancy shall occur. A
resolution certifying the existence of such vacancy by the Administrative
Trustees or, if there are more than two, a majority of the Administrative
Trustees shall be conclusive evidence of the existence of such vacancy. The
vacancy shall be filled with a Trustee appointed in accordance with Section
6.6.
SECTION 6.8. Effect of Vacancies.
The death, resignation, retirement, removal, bankruptcy,
dissolution, liquidation, incompetence or incapacity to perform the duties of
a Trustee shall not operate to annul, dissolve or terminate the Trust.
Whenever a vacancy in the number of Administrative Trustees shall occur, until
such vacancy is filled by the appointment of an Administrative Trustee in
accordance with Section 6.6, the Administrative Trustees in office, regardless
of their number, shall have all the powers granted to the Administrative
Trustees and shall discharge all the duties imposed upon the Administrative
Trustees by this Trust Agreement.
SECTION 6.9. Meetings.
28
If there is more than one Administrative Trustee, meetings of
the Administrative Trustees shall be held from time to time upon the call of
any Administrative Trustee. Regular meetings of the Administrative Trustees
may be held at a time and place fixed by resolution of the Administrative
Trustees. Notice of any in-person meetings of the Administrative Trustees
shall be hand delivered or otherwise delivered in writing (including by
facsimile, with a hard copy by overnight courier) not less than 48 hours
before such meeting. Notice of any telephonic meetings of the Administrative
Trustees shall be hand delivered or otherwise delivered in writing (including
by facsimile, with a hard copy by overnight courier) not less than 24 hours
before a meeting. Notices shall contain a brief statement of the time, place
and anticipated purposes of the meeting. The presence (whether in person or by
telephone) of an Administrative Trustee at a meeting shall constitute a waiver
of notice of such meeting except where an Administrative Trustee attends a
meeting for the express purpose of objecting to the transaction of any
activity on the ground that the meeting has not been lawfully called or
convened. Unless provided otherwise in this Trust Agreement, any action of the
Administrative Trustees may be taken at a meeting by vote of a majority of the
Administrative Trustees present (whether in person or by telephone) and
eligible to vote with respect to such matter, provided that a Quorum is
present, or without a meeting and without prior written notice by the
unanimous written consent of the Administrative Trustees. In the event there
is only one Administrative Trustee, any and all action of such Administrative
Trustee shall be evidenced by a written consent of such Administrative
Trustee.
SECTION 6.10. Delegation of Power.
(a) Any Administrative Trustee may, by power of
attorney consistent with applicable law, delegate to any natural person over
the age of 21 his, her or its power for the purpose of executing any documents
contemplated in Section 3.6 or making any governmental filing; provided that
such person is a United States Person as defined in Section 7701(a)(30) of the
Code.
(b) The Administrative Trustees shall have power to
delegate from time to time to such of their number or to officers of the Trust
the doing of such things and the execution of such instruments either in the
name of the Trust or the names of the Administrative Trustees or otherwise as
the Administrative Trustees may deem expedient, to the extent such delegation
is not prohibited by applicable law or contrary to the provisions of the
Trust, as set forth herein; provided, that such person is a United States
Person as defined in Section 7701(a)(30) of the Code.
SECTION 6.11. Merger, Conversion, Consolidation or Succession
to Business.
Any corporation into which the Property Trustee, the Delaware
Trustee or any Administrative Trustee that is not a natural person may be
merged or converted or with such Trustee may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which
such Trustee shall be a party, or any corporation succeeding to all or
substantially all the corporate trust business of such Trustee shall be the
successor of such Trustee hereunder, provided such corporation shall be
otherwise qualified and eligible under this Article, without the execution or
filing of any paper or any further act on the part of any of the parties
hereto.
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ARTICLE 7
TERMS OF SECURITIES
SECTION 7.1. General Provisions Regarding Securities.
(a) The Administrative Trustees shall on behalf of
the Trust issue one class of capital securities representing undivided
beneficial interests in the assets of the Trust and one class of common
securities representing undivided beneficial interests in the assets of the
Trust.
(i) Capital Securities. The Capital
Securities of the Trust have an aggregate liquidation
amount with respect to the assets of the Trust of up to
Two hundred million dollars ($200,000,000) with respect
to the closing of the sale of Capital Securities on one
or more occasions. The Capital Securities are hereby
designated for identification purposes only as "8% Trust
Preferred Securities" (the "Capital Securities"). The
Capital Security Certificates evidencing the Capital
Securities shall be substantially in the form of Exhibit
A to this Trust Agreement, with such changes and
additions thereto or deletions therefrom as may be
required by ordinary usage, custom or practice or to
conform to the rules of any stock exchange on which the
Capital Securities are listed or quoted.
(ii) Common Securities. The Common Securities
of the Trust have an aggregate liquidation amount with
respect to the assets of the Trust of up to Six million
one hundred eighty-five thousand five hundred
seventy-five dollars ($6,185,575) with respect to the
closing of the sale of Common Securities on one or more
occasions. The Common Securities are hereby designated
for identification purposes only as "8% Common
Securities" (the "Common Securities" and, together with
the Capital Securities, the "Securities"). The Common
Security Certificates evidencing the Common Securities
shall be substantially in the form of Exhibit B to this
Trust Agreement, with such changes and additions thereto
or deletions therefrom as may be required by ordinary
usage, custom or practice.
(b) Payment of Distributions on, and payment of the
Redemption Price upon a redemption of, the Capital Securities and the Common
Securities, as applicable, shall be made Pro Rata based on the liquidation
amount of such Capital Securities and Common Securities; provided, however,
that if on any date on which amounts payable on distribution or redemption, an
Indenture Event of Default shall have occurred and be continuing, no payment
of any Distribution on, or Redemption Price of, any of the Common Securities,
and no other payment on account of the redemption, liquidation or other
acquisition of such Common Securities, shall be made unless payment in full in
cash of all accumulated and unpaid Distributions on all of the outstanding
Capital Securities for all Distribution periods terminating on or prior
thereto, or, in the case of amounts payable on redemption, the full amount of
the Redemption Price for all of the outstanding Capital Securities then called
for redemption, shall have been made or provided for, and all funds available
to the Property Trustee shall first be applied to the payment in full in cash
of all Distributions on, or the Redemption Price of, the Capital Securities
then due and payable. The Trust shall issue no securities or other interests
in the assets of the Trust other than the Capital Securities and the Common
Securities.
(c) The Certificates shall be signed on behalf of the
Trust by an Administrative Trustee. Such signature shall be the manual or
facsimile signature of any present or any future Administrative Trustee. In
case an Administrative Trustee of the Trust who shall have signed any
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of the Certificates shall cease to be such Administrative Trustee before the
Certificates so signed shall be delivered by the Trust, such Certificates
nevertheless may be delivered as though the person who signed such
Certificates had not ceased to be such Administrative Trustee; and any
Certificate may be signed on behalf of the Trust by such persons who, at the
actual date of execution of such Certificate, shall be the Administrative
Trustees of the Trust, although at the date of the execution and delivery of
the Trust Agreement any such person was not such an Administrative Trustee.
Certificates shall be printed, lithographed or engraved or may be produced in
any other manner as is reasonably acceptable to the Administrative Trustees,
as evidenced by their execution thereof, and may have such letters, numbers or
other marks of identification or designation and such legends or endorsements
as the Administrative Trustees may deem appropriate, or as may be required to
comply with any law or with any rule or regulation of any stock exchange on
which Securities may be listed, or to conform to usage.
A Certificate representing Capital Securities shall not be
valid until authenticated by the manual signature of an authorized officer of
the Property Trustee. Such signature shall be conclusive evidence that such
Certificate has been authenticated under this Trust Agreement.
Upon a written order of the Trust signed by one Administrative
Trustee, the Property Trustee shall authenticate the Certificates representing
Capital Securities for original issue. The aggregate amount of Capital
Securities outstanding at any time shall not exceed the liquidation amount set
forth in Section 7.1(a)(i).
The Property Trustee may appoint an authenticating agent
acceptable to the Trust to authenticate Certificates. An authenticating agent
may authenticate Certificates whenever the Property Trustee may do so. Each
reference in this Trust Agreement to authentication by the Property Trustee
includes authentication by such agent. An authenticating agent has the same
rights as the Property Trustee to deal with the Sponsor or an Affiliate of the
Sponsor.
(d) The consideration received by the Trust for the
issuance of the Securities shall constitute a contribution to the capital of
the Trust and shall not constitute a loan to the Trust.
(e) Upon issuance of the Securities as provided in
this Trust Agreement, the Securities so issued shall be deemed to be validly
issued, fully paid and non-assessable undivided beneficial interests in the
assets of the Trust.
(f) Every Person, by virtue of having become a Holder
or a Capital Security Beneficial Owner in accordance with the terms of this
Trust Agreement, shall be deemed to have expressly assented and agreed to the
terms of, and shall be bound by, this Trust Agreement and the terms of the
Securities.
(g) The holders of the Securities shall have no
preemptive or similar rights.
SECTION 7.2. Distributions.
(a) As owners of undivided beneficial ownership
interests in the Debentures, holders of Securities shall be entitled to
receive cumulative cash Distributions at the rate per annum of 8% of the
stated liquidation amount of $25.00 per Security. Pursuant to the Indenture,
the amount of interest on the Debentures payable for any period shorter than a
full quarterly interest period, and, as a result, Distributions on the
Securities payable for any period shorter than a full quarterly distribution
period shall be computed on the basis of a 30-day month and for periods of
less than a month, the actual number of days elapsed per 30-day month. Subject
to Section 7.1(b), Distributions shall be made on the Capital Securities and
the Common Securities on a Pro Rata basis. Pursuant to the Indenture, interest
on the
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Debentures shall, from the date of original issue, accrue and be cumulative,
and, as a result Distributions on the Securities shall, from the date of
original issue, accumulate and be cumulative. Distributions shall be payable
quarterly in arrears on each January 1, April 1, July 1, and October 1 of each
year, commencing April 1, 2002, when, as and if available for payment, by the
Property Trustee, except as otherwise described below. Distributions are
payable only to the extent that payments are made in respect of the Debentures
held by the Property Trustee and to the extent that the Trust has funds
available for the payment of such Distributions in the Property Account.
(b) Pursuant to the Indenture, interest not paid on
the scheduled payment date will accrue and compound quarterly at the rate of
8% per annum, and, as a result, interests on the Debentures not paid on the
scheduled payment date will accrue and compound quarterly at the rate of 8%
per annum (and, as a result) the Distributions on the Securities will
accumulate and compound at the rate of 8% per annum ("Compounded
Distributions"). "Distributions" shall mean ordinary cumulative distributions
together with any Compounded Distributions.
(c) If and to the extent that the Debenture Issuer
makes a payment of interest, premium and/or principal on the Debentures held
by the Property Trustee (the amount of any such payment being a "Payment
Amount"), the Property Trustee shall and is directed, to the extent funds are
available for that purpose, make a Pro Rata distribution of the Payment Amount
to Holders, subject to Section 7.1(b).
(d) Distributions on the Securities shall be payable
to the Holders thereof as they appear on the register of the Trust as of the
close of business on the relevant record dates. While the Capital Securities
are represented by one or more Global Securities, the relevant record dates
shall be the close of business the Business Day preceding such Distribution
payment date; otherwise the relevant record date shall be the fifteenth day
(whether or not a Business Day) preceding such Distribution payment date. At
all times, the Distribution payment dates shall correspond to the interest
payment dates on the Debentures. Distributions payable on any Securities that
are not punctually paid on any Distribution payment date, as a result of the
Debenture Issuer having failed to make a payment under the Debentures, shall
cease to be payable to the Person in whose name such Securities are registered
on the relevant record date, and such defaulted Distribution will instead be
payable to the Person in whose name such Securities are registered on the
special record date or other specified date determined in accordance with this
Trust Agreement. If any date on which Distributions are payable on the
Securities is not a Business Day, then payment of the Distribution payable on
such date will be made on the next succeeding day that is a Business Day (and
without any interest or other payment in respect of any such delay), with the
same force and effect as if made on such payment date.
(e) In the event that there is any money or other
property held by or for the Trust that is not accounted for hereunder, such
property shall be distributed Pro Rata among the Holders of the Securities
except as provided in Section 7.1(b).
SECTION 7.3. Redemption of Securities.
(a) Upon the repayment or redemption, in whole or in
part, of the Debentures held by the Trust, whether at the stated maturity of
the Debentures or upon earlier redemption as provided in the Indenture, the
proceeds from such repayment or redemption shall be simultaneously applied Pro
Rata (subject to Section 7.1(b)) to redeem Securities having an aggregate
liquidation amount equal to the aggregate principal amount of the Debentures
so repaid or redeemed at the Redemption Price. Holders shall be given not less
than 30 nor more than 60 days notice of such redemption in accordance with
Section 7.4.
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(b) On the date fixed for any distribution of
Debentures, upon dissolution of the Trust, (i) the Securities will no longer
be deemed to be outstanding and (ii) certificates representing Securities will
be deemed to represent the Debentures having an aggregate principal amount
equal to the stated liquidation amount of, and bearing accrued and unpaid
interest equal to accumulated and unpaid distributions on, such Securities
until such certificates are presented to the Sponsor or its agent for transfer
or reissuance.
SECTION 7.4. Redemption Procedures.
(a) Notice of any redemption of, or notice of
distribution of Debentures in exchange for, the Securities (a
"Redemption/Distribution Notice"), which notice shall be irrevocable, will be
given by the Trust by mail to each Holder of Securities to be redeemed or
exchanged not fewer than 30 nor more than 60 days before the date fixed for
redemption or exchange thereof which, in the case of a redemption, will be the
date fixed for redemption of the Debentures. For purposes of the calculation
of the date of redemption or exchange and the dates on which notices are given
pursuant to this Section 7.4(a), a Redemption/Distribution Notice shall be
deemed to be given on the day such notice is first mailed by first-class mail,
postage prepaid, to Holders of Securities. Each Redemption/Distribution Notice
shall be addressed to the Holders of Securities at the address of each such
Holder appearing in the register of the Trust. No defect in the
Redemption/Distribution Notice or in the mailing of either thereof with
respect to any Holder shall affect the validity of the redemption or exchange
proceedings with respect to any other Holder.
(b) If fewer than all the outstanding Securities are
to be so redeemed, the Common Securities and the Capital Securities will be
redeemed Pro Rata (subject to Section 7.1(b)) and the Capital Securities to be
redeemed will be redeemed as described in Section 7.4(c) below. The particular
Capital Securities to be redeemed will be selected on a Pro Rata basis by the
Property Trustee from the outstanding Capital Securities not previously called
for redemption, by such method (including, without limitation, by lot) as the
Property Trustee shall deem fair and appropriate. The Trust may not redeem the
Securities in part unless all accumulated and unpaid Distributions to the date
of redemption have been paid in full on all Securities then outstanding. For
all purposes of this Trust Agreement, unless the context otherwise requires,
all provisions relating to the redemption of Capital Securities shall relate,
in the case of any Capital Security redeemed or to be redeemed only in part,
to the portion of the aggregate liquidation amount of Capital Securities which
has been or is to be redeemed.
(c) Subject to the Trust's fulfillment of the notice
requirements set forth in Section 7.4(a) above, if Securities are to be
redeemed, then (i) with respect to Capital Securities represented by one or
more Global Securities, by 12:00 noon, New York City time, on the redemption
date, provided that the Debenture Issuer has paid the Property Trustee a
sufficient amount of cash in connection with the related redemption or
maturity of the Debentures, the Property Trustee will deposit irrevocably with
the Depositary or its nominee (or successor Clearing Agency or its nominee)
funds sufficient to pay the applicable Redemption Price with respect to the
Capital Securities and will give the Depositary irrevocable instructions and
authority to pay the Redemption Price to the Holders of the Capital Securities
and (ii) with respect to Securities not represented by one or more Global
Securities, provided that the Debenture Issuer has paid the Property Trustee a
sufficient amount of cash in connection with the related redemption or
maturity of the Debentures, the Property Trustee will give the Paying Agent
irrevocable instructions and authority to pay the relevant Redemption Price to
the Holders of such Securities upon surrender of their certificates evidencing
the Capital Securities. Payment of the Redemption Price on the Capital
Securities will be made to the recordholders thereof as they appear on the
register of the Trust on the relevant record date, which shall be one Business
Day prior to the relevant redemption date; provided, however, that with
respect to the Capital Securities not represented by one or more Global
Securities, the relevant record date shall be the date fifteen days prior to
the relevant
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redemption date. If any date fixed for redemption of Securities is not a
Business Day, then payment of the Redemption Price payable on such date will
be made on the next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay) with the same force
and effect as if made on such date fixed for redemption. If, however, the
Business Day falls in the next calendar year, then payment of the Redemption
Price will be made on the immediately preceding Business Day with the same
force and effect as if made on such date fixed for redemption. If payment of
the Redemption Price in respect of any Securities is not paid because the
payment of the Redemption Price on the Debentures is not made, interest will
continue to accrue on the Debentures, and, as a result, Distributions on such
Securities will continue to accumulate at the then applicable rate from the
original redemption date to the actual date of payment, in which case the
actual payment date will be considered the date fixed for redemption for
purposes of calculating the Redemption Price. For these purposes, the
applicable Redemption Price shall not include Distributions which are being
paid to Holders who were Holders on a relevant record date. If a
Redemption/Distribution Notice shall have been given and funds deposited or
paid as required, then immediately prior to the close of business on the date
of such deposit or payment, Distributions will cease to accumulate on the
Securities called for redemption and all rights of Holders of such Securities
so called for redemption will cease, except the right of the Holders to
receive the Redemption Price, but without interest on such Redemption Price,
and from and after the date fixed for redemption, such Securities will cease
to be outstanding.
Neither the Administrative Trustees nor the Trust shall be
required to register or cause to be registered the transfer of any Securities
that have been called for redemption, except in the case of any Securities
being redeemed in part, any portion thereof not to be redeemed.
(d) Subject to the foregoing and applicable law
(including, without limitation, United States federal securities laws), the
Debenture Issuer or its subsidiaries may at any time and from time to time
purchase outstanding Capital Securities by tender, in the open market or by
private agreement.
SECTION 7.5. Voting Rights of Capital Securities.
(a) Except as provided under Section 6.6, Section
11.1 and this Article 7 and as otherwise required by the Business Trust Act,
the Trust Indenture Act and other applicable law, the Holders of the Capital
Securities shall have no voting rights.
(b) Subject to the requirement of the Property
Trustee being provided with a tax opinion in certain circumstances set forth
in Section 7.5(d) below, the Holders of a Majority in Liquidation Amount of
the Capital Securities voting separately as a class have the right to direct
the time, method and place of conducting any proceeding for any remedy
available to the Property Trustee, or to direct the exercise of any trust or
power conferred upon the Property Trustee under the Trust Agreement, including
the right to direct the Property Trustee, as Holder of the Debentures, to (i)
exercise the remedies available to it under the Indenture as a Holder of the
Debentures; (ii) consent to any amendment, modification or termination of the
Indenture or the Debentures where such consent shall be required or (iii)
waive any past default and its consequences that is waivable under Section
5.13 of the Indenture; provided, however, that if an Indenture Event of
Default has occurred and is continuing, then the Holders of 25% of the
aggregate liquidation amount of the Capital Securities may direct the Property
Trustee to declare the principal of and interest on the Debentures due and
payable; provided, further, that where a consent or action under the Indenture
would require the consent or act of the Holders of more than a majority of the
aggregate principal amount of Debentures affected thereby, only the Holders of
the percentage of the aggregate stated liquidation amount of the Capital
Securities which is at least equal to the percentage required under the
Indenture may direct the Property Trustee to give such consent to take such
action.
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(c) If the Property Trustee fails to enforce its
rights under the Debentures after a Holder of Capital Securities has made a
written request, such Holder of Capital Securities may, to the extent
permitted by applicable law, institute a legal proceeding directly against the
Debenture Issuer to enforce the Property Trustee's rights under the Indenture
without first instituting any legal proceeding against the Property Trustee or
any other Person. In addition, if a Trust Enforcement Event has occurred and
is continuing and such event is attributable to the failure of the Debenture
Issuer to make any interest, principal or other required payments when due
under the Indenture, then a Holder of Capital Securities may directly
institute a Direct Action against the Debenture Issuer on or after the
respective due date specified in the Debentures.
(d) The Property Trustee shall notify all Holders of
the Capital Securities of any notice of any Indenture Event of Default
received from the Debenture Issuer with respect to the Debentures. Such notice
shall state that such Indenture Event of Default also constitutes a Trust
Enforcement Event. Except with respect to directing the time, method, and
place of conducting a proceeding for a remedy, the Property Trustee shall be
under no obligation to take any of the actions described in clause 7.5(b)(i)
and (ii) above unless the Property Trustee has obtained an opinion of
independent tax counsel to the effect that the Trust will not be classified as
an association or publicly traded partnership taxable as a corporation for
United States federal income tax purposes as a result of such action.
(e) In the event the consent of the Property Trustee,
as the Holder of the Debentures, is required under the Indenture with respect
to any amendment or modification of the Indenture, the Property Trustee shall
request the direction of the Holders of the Capital Securities with respect to
such amendment or modification and shall vote with respect to such amendment
or modification as directed by not less than a majority in liquidation amount
of the Capital Securities voting together as a single class; provided,
however, that where a consent under the Indenture would require the consent of
the Holders of more than a majority of the aggregate principal amount of the
Debentures, the Property Trustee may only give such consent at the direction
of the Holders of at least the same proportion in aggregate stated liquidation
amount of the Securities. The Property Trustee shall not take any such action
in accordance with the directions of the Holders of the Securities unless the
Property Trustee has been provided with an opinion of counsel to the effect
that such action will not affect the status of the Trust as a grantor trust
for U.S. federal income tax purposes.
(f) A waiver of an Indenture Event of Default with
respect to the Debentures will constitute a waiver of the corresponding Trust
Enforcement Event.
(g) Any required approval or direction of Holders of
Capital Securities may be given at a separate meeting of Holders of Capital
Securities convened for such purpose, at a meeting of all of the Holders of
Securities or pursuant to written consent. The Administrative Trustees will
cause a notice of any meeting at which Holders of Capital Securities are
entitled to vote to be mailed to each Holder of record of Capital Securities.
Each such notice will include a statement setting forth (i) the date of such
meeting, (ii) a description of any resolution proposed for adoption at such
meeting on which such Holders are entitled to vote and (iii) instructions for
the delivery of proxies.
(h) No vote or consent of the Holders of Capital
Securities shall be required for the Trust to redeem and cancel Capital
Securities or distribute Debentures in accordance with this Trust Agreement
and the terms of the Securities.
(i) Notwithstanding that Holders of Capital
Securities are entitled to vote or consent under any of the circumstances
described above, any of the Securities that are owned at such time by the
Debenture Issuer, any Administrative Trustee or any entity directly or
indirectly controlled by, or
35
under direct or indirect common control with, the Debenture Issuer or any
Administrative Trustee, shall not be entitled to vote or consent and shall,
for purposes of such vote or consent, be treated as if such Securities were
not outstanding; provided, however, that Persons otherwise eligible to vote to
whom the Debenture Issuer or any of its subsidiaries have pledged Capital
Securities may vote or consent with respect to such pledged Capital Securities
under any of the circumstances described herein.
(j) Subject to Sections 6.6(a) and 7.5(k), Holders of
the Capital Securities shall have no rights to appoint or remove the Trustees,
who may be appointed, removed or replaced solely by the Common Securities
Holder.
(k) If an Indenture Event of Default has occurred and
is continuing, the Property Trustee and the Delaware Trustee may be removed at
such time only by a Majority in Liquidation Amount of the Capital Securities.
(l) The Trustees shall not revoke any action
previously authorized or approved by a vote of the Holders of the Securities,
except by a subsequent vote of the Holders of the Securities.
SECTION 7.6. Voting Rights of Common Securities.
(a) Except as provided under Section 6.1(b), this
Section 7.6 or Section 11.1 or as otherwise required by the Business Trust
Act, the Trust Indenture Act or other applicable law or provided by the Trust
Agreement, the Holders of the Common Securities will have no voting rights.
(b) Subject to Sections 6.6(a) and 7.5(k), the
Holders of the Common Securities shall be entitled, in accordance with Article
VI of this Trust Agreement, to vote to appoint, remove or replace any Trustee
or to increase or decrease the number of Trustees.
(c) Subject to Section 2.6 and only after all Trust
Enforcement Events with respect to the Capital Securities have been cured,
waived, or otherwise eliminated and subject to the requirement of the Property
Trustee being provided with a tax opinion in certain circumstances set forth
in this paragraph (c), the Holders of a Majority in Liquidation Amount of the
Common Securities have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Property Trustee, or
direct the exercise of any trust or power conferred upon the Property Trustee
under this Trust Agreement, including the right to direct the Property
Trustee, as Holder of the Debentures, to (i) exercise the remedies available
to it under the Indenture as a Holder of the Debentures, (ii) consent to any
amendment or modification of the Indenture or the Debentures where such
consent shall be required or (iii) waive any past default and its consequences
that is waivable under Section 5.13 of the Indenture; provided, however, that
where a consent or action under the Indenture would require the consent or act
of the Holders of more than a majority of the aggregate principal amount of
Debentures affected thereby, only the Holders of the percentage of the
aggregate stated liquidation amount of the Common Securities which is at least
equal to the percentage required under the Indenture may direct the Property
Trustee to have such consent or take such action. Except with respect to
directing the time, method, and place of conducting a proceeding for a remedy,
the Property Trustee shall be under no obligation to take any of the actions
described in clause 7.6(c)(i) and (ii) above unless the Property Trustee has
been provided with an opinion of independent tax counsel to the effect that,
as a result of such action, for United States federal income tax purposes the
Trust will not be classified as other than a grantor trust.
(d) If the Property Trustee fails to enforce its
rights under the Debentures after a Holder of Common Securities has made a
written request, such Holder of Common Securities may,
36
to the extent permitted by applicable law, directly institute a legal
proceeding directly against the Debenture Issuer to enforce the Property
Trustee's rights under the Debentures without first instituting any legal
proceeding against the Property Trustee or any other Person.
(e) A waiver of an Indenture Event of Default with
respect to the Debentures will constitute a waiver of the corresponding Trust
Enforcement Event.
(f) Any required approval or direction of Holders of
Common Securities may be given at a separate meeting of Holders of Common
Securities convened for such purpose, at a meeting of all of the Holders of
Securities or pursuant to written consent. The Administrative Trustees will
cause a notice of any meeting at which Holders of Common Securities are
entitled to vote to be mailed to each Holder of record of Common Securities.
Each such notice will include a statement setting forth (i) the date of such
meeting, (ii) a description of any resolution proposed for adoption at such
meeting on which such Holders are entitled to vote and (iii) instructions for
the delivery of proxies.
(g) No vote or consent of the Holders of the Common
Securities will be required for the Trust to redeem and cancel Common
Securities or to distribute Debentures in accordance with the Trust Agreement
and the terms of the Securities.
SECTION 7.7. Paying Agent.
In the event that any Capital Securities are not in book-entry
only form, the Trust shall maintain in the Borough of Manhattan, City of New
York, State of New York, an office or agency where the Capital Securities may
be presented for payment ("Paying Agent"). The Trust may appoint the paying
agent and may appoint one or more additional paying agents in such other
locations as it shall determine. The term "Paying Agent" includes any
additional paying agent. The Trust may change any Paying Agent without prior
notice to the Holders. The Trust shall notify the Property Trustee of the name
and address of any Paying Agent not a party to this Trust Agreement. If the
Trust fails to appoint or maintain another entity as Paying Agent, the
Property Trustee shall act as such. The Trust or any of its Affiliates may act
as Paying Agent. The Property Trustee shall initially act as Paying Agent for
the Securities. In the event the Property Trustee shall no longer be the
Paying Agent, the Administrative Trustees shall appoint a successor (which
shall be a bank or trust company acceptable to the Debenture Issuer) to act as
Paying Agent. The Paying Agent shall be permitted to resign as Paying Agent
upon 30 days' written notice to the Property Trustee and the Debenture Issuer.
SECTION 7.8. Listing.
The Sponsor shall use its best efforts to cause the Capital
Securities to be listed on the NYSE.
SECTION 7.9. Transfer of Securities.
(a) Securities may only be transferred, in whole or
in part, in accordance with the terms and conditions set forth in this Trust
Agreement and in the terms of the Securities. To the fullest extent permitted
by law, any transfer or purported transfer of any Security not made in
accordance with this Trust Agreement shall be null and void.
(b) (i) Subject to this Article 7, Capital
Securities shall be freely transferable.
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(ii) The Holder of the Common Securities may
not transfer the Common Securities except (A) in
compliance with a consolidation, merger, sale,
conveyance or lease of the Sponsor in compliance with
Article VIII of the Indenture or (B) to the Sponsor or
an Affiliate thereof in compliance with applicable law,
including the Securities Act and applicable state
securities and blue sky laws. To the fullest extent
permitted by law, any attempted transfer of the Common
Securities other than as set forth in the immediately
preceding sentence shall be null and void.
(c) The Trust shall cause to be kept at the Corporate
Trust Office of the Property Trustee a register (the register maintained in
such office being herein sometimes referred to as the "Security Register") in
which, subject to such reasonable regulations as it may prescribe, the Trust
shall provide for the registration of Capital Securities and of transfers of
Capital Securities. The Property Trustee is hereby appointed "Security
Registrar" for the purpose of registering Capital Securities and transfers of
Capital Securities as herein provided.
(d) Upon surrender for registration of transfer of
any Security at an office or agency of the Trust designated for such purpose,
the Trust shall execute, and the Property Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Securities of any authorized denominations and of a like aggregate
principal amount.
(e) At the option of the Holder, Securities may be
exchanged for other Securities of any authorized denominations and of a like
aggregate principal amount, upon surrender of the Securities to be exchanged
at such office or agency. Whenever any Securities are so surrendered for
exchange, the Trust shall execute, and in the case of Capital Securities the
Property Trustee shall authenticate and deliver, the Securities which the
Holder making the exchange is entitled to receive.
(f) Every Security presented or surrendered for
registration of transfer or for exchange shall (if so required by the Trust or
the Property Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Trust and the Security
Registrar duly executed, by the Holder thereof or his attorney duly authorized
in writing.
(g) No service charge shall be made for any
registration of transfer or exchange of Securities, but the Trust may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any registration of transfer or exchange of
Securities.
(h) If the Securities are to be redeemed in part, the
Trust shall not be required (A) to issue, register the transfer of or exchange
any Securities during a period beginning at the opening of business 15 days
before the day of the mailing of a notice of redemption of any such Securities
selected for redemption under Section 7.4 and ending at the close of business
on the day of such mailing, or (B) to register the transfer or exchange of any
Security so selected for redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part.
SECTION 7.10. Mutilated, Destroyed, Lost or Stolen
Certificates.
If:
(a) any mutilated Certificates should be surrendered
to the Administrative Trustees, or if the Administrative Trustees shall
receive evidence to their satisfaction of the destruction, loss or theft of
any Certificate; and
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(b) there shall be delivered to the Administrative
Trustees such security or indemnity as may be required by them to keep each of
the Trustees, the Sponsor and the Trust harmless,
then, in the absence of notice that such Certificate shall have been acquired
by a bona fide purchaser, any Administrative Trustee on behalf of the Trust
shall execute and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like denomination.
In connection with the issuance of any new Certificate under this Section
7.10, the Administrative Trustees may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in
connection therewith. Any duplicate Certificate issued pursuant to this
Section shall constitute conclusive evidence of an ownership interest in the
relevant Securities, as if originally issued, whether or not the lost, stolen
or destroyed Certificate shall be found at any time.
SECTION 7.11. Deemed Security Holders.
The Trustees may treat the Person in whose name any Certificate
shall be registered on the register of the Trust as the sole holder of such
Certificate and of the Securities represented by such Certificate for purposes
of receiving Distributions and for all other purposes whatsoever and,
accordingly, shall not be bound to recognize any equitable or other claim to
or interest in such Certificate or in the Securities represented by such
Certificate on the part of any Person, whether or not the Trust shall have
actual or other notice thereof.
SECTION 7.12. Global Securities.
The Capital Securities may be issued in the form of one or more
Global Securities. If the Capital Securities are to be issued in the form of
one or more Global Securities, then an Administrative Trustee on behalf of the
Trust shall execute and the Property Trustee shall authenticate and deliver
one or more Global Securities that (i) shall represent and shall be
denominated in an amount equal to the aggregate liquidation amount of all of
the Capital Securities to be issued in the form of Global Securities and not
yet cancelled, (ii) shall be registered in the name of the Depositary for such
Global Security or the nominee of such Depositary, and (iii) shall be
delivered by the Property Trustee to such Depositary or pursuant to such
Depositary's instructions. Global Securities shall bear a legend substantially
to the following effect:
"This Capital Security is a Global Security within the meaning
of the Trust Agreement hereinafter referred to and is
registered in the name of The Depository Trust Company, a New
York corporation (the "Depositary"), or a nominee of the
Depositary. This Capital Security is exchangeable for Capital
Securities registered in the name of a person other than the
Depositary or its nominee only in the limited circumstances
described in the Trust Agreement and no transfer of this
Capital Security (other than a transfer of this Capital
Security as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary
or another nominee of the Depositary) may be registered except
in limited circumstances.
Unless this Capital Security Certificate is presented by an
authorized representative of the Depositary to Banknorth
Capital Trust II or its agent for registration of transfer,
exchange or payment, and any Capital Security Certificate
issued is registered in the name of Cede & Co. or such other
name as requested by an authorized representative of the
Depositary (and any payment hereon is made to Cede & Co. or to
such
39
other entity as is requested by an authorized representative of
the Depositary), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as
the registered owner hereof, Cede & Co., has an interest
herein."
Capital Securities not represented by a Global Security issued
in exchange for all or a part of a Global Security pursuant to this Section
7.12 shall be registered in such names and in such authorized denominations as
the Depositary, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Property Trustee. Upon execution
and authentication, the Property Trustee shall deliver such Capital Securities
not represented by a Global Security to the Persons in whose names such
definitive Capital Securities are so registered.
At such time as all interests in Global Securities have been
redeemed, repurchased or cancelled, such Global Securities shall be, upon
receipt thereof, cancelled by the Property Trustee in accordance with standing
procedures of the Depositary. At any time prior to such cancellation, if any
interest in Global Securities is exchanged for Capital Securities not
represented by a Global Security, redeemed, cancelled or transferred to a
transferee who receives Capital Securities not represented by a Global
Security therefor or any Capital Security not represented by a Global Security
is exchanged or transferred for part of Global Securities, the principal
amount of such Global Securities shall, in accordance with the standing
procedures of the Depositary, be reduced or increased, as the case may be, and
an endorsement shall be made on such Global Securities by the Property Trustee
to reflect such reduction or increase.
The Trust and the Property Trustee may for all purposes,
including the making of payments due on the Capital Securities, deal with the
Depositary as the authorized representative of the Holders for the purposes of
exercising the rights of Holders hereunder. The rights of the owner of any
beneficial interest in a Global Security shall be limited to those established
by law and agreements between such owners and depository participants
provided, that no such agreement shall give any rights to any Person against
the Trust or the Property Trustee without the written consent of the parties
so affected. Multiple requests and directions from and votes of the Depositary
as holder of Capital Securities in global form with respect to any particular
matter shall not be deemed inconsistent to the extent they do not represent an
amount of Capital Securities in excess of those held in the name of the
Depositary or its nominee.
If at any time the Depositary for any Capital Securities
represented by one or more Global Securities notifies the Trust that it is
unwilling or unable to continue as Depositary for such Capital Securities or
if at any time the Depositary for such Capital Securities shall no longer be
eligible under this Section 7.12, the Trust shall appoint a successor
Depositary with respect to such Capital Securities. If a successor Depositary
for such Capital Securities is not appointed by the Trust within 90 days after
the Trust receives such notice or becomes aware of such ineligibility, the
Trusts election that such Capital Securities be represented by one or more
Global Securities shall no longer be effective and the Trust shall execute,
and the Property Trustee will authenticate and deliver, Capital Securities in
definitive registered form, in any authorized denominations, in an aggregate
liquidation amount equal to the principal amount of the Global Security or
Capital Securities representing such Capital Securities in exchange for such
Global Security or Capital Securities.
The Trust may at any time and in its sole discretion determine
that the Capital Securities issued in the form of one or more Global
Securities shall no longer be represented by a Global Security or Capital
Securities. In such event the Trust shall execute, and the Property Trustee,
shall authenticate and deliver, Capital Securities in definitive registered
form, in any authorized denominations, in an aggregate
40
liquidation amount equal to the principal amount of the Global Security or
Capital Securities representing such Capital Securities, in exchange for such
Global Security or Capital Securities.
Notwithstanding any other provisions of this Trust Agreement
(other than the provisions set forth in Section 7.9), Global Securities may
not be transferred as a whole except by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
Interests of beneficial owners in a Global Security may be
transferred or exchanged for Capital Securities not represented by a Global
Security and Capital Securities not represented by a Global Security may be
transferred or exchange for Global Securities in accordance with rules of the
Depositary and the provisions of Section 7.9.
ARTICLE 8
DISSOLUTION AND TERMINATION OF TRUST
SECTION 8.1. Dissolution and Termination of Trust.
(a) The Trust shall dissolve upon the earliest of:
(i) April 1, 2033;
(ii) the bankruptcy of the Holder of the
Common Securities or the Sponsor;
(iii) the filing of a certificate of
dissolution or its equivalent with respect to the
Sponsor or the revocation of the Sponsor's charter and
the expiration of 90 days after the revocation without a
reinstatement thereof;
(iv) the entry of a decree of judicial
dissolution of the Sponsor or the Trust;
(v) the time when all of the Securities shall
have been called for redemption and the amounts then due
shall have been paid to the Holders in accordance with
the terms of the Securities;
(vi) at the Sponsor's election by notice and
direction to the Property Trustee to distribute the
Debentures to the Holders of the Securities in exchange
for all of the Securities, subject to the receipt of any
necessary approvals by the Federal Reserve that may then
be required under the applicable capital guidelines or
policies of the Federal Reserve; provided that the
Sponsor will be required to obtain an opinion of an
independent counsel that the distribution of the
Debentures will not be taxable to the Holders of the
Capital Securities for United States federal income tax
purposes; or
(vii) the time when all of the Administrative
Trustees and the Sponsor shall have consented to
dissolution of the Trust provided such action is taken
before the issuance of any Securities.
41
(b) As soon as is practicable after the occurrence of
an event referred to in Section 8.1(a) and upon completion of the winding up
and liquidation of the Trust, the Trustees shall terminate the Trust by filing
a certificate of cancellation with the Secretary of State of the State of
Delaware.
(c) The Sponsor must give at least 30 days written
notice to the Trustees of its election to dissolve the Trust and distribute
the Debentures pursuant to Section 8.1(a)(vi). Once the liquidation date is
fixed for any distribution of the Debentures pursuant to Section 8.1(a)(vi):
(i) the Capital Securities shall no longer be
deemed to be outstanding;
(ii) the Depositary, or its nominee, as the
record holder of the Capital Securities, will receive a
registered global certificate or certificates
representing the Debentures to be delivered upon the
distribution; and
(iii) certificates representing the Capital
Securities not held by the Depositary or its nominee
will be deemed to represent the corresponding
Debentures. Those certificates will bear accrued and
unpaid interest in an amount equal to the accrued and
unpaid distributions on the Capital Securities until the
certificates are presented to the Administrative
Trustees or their agent for transfer or reissuance.
(d) The provisions of Section 4.2 and Article 9 shall
survive the termination of the Trust.
SECTION 8.2. Liquidation Distribution Upon Dissolution of the
Trust.
(a) In the event of any voluntary or involuntary
liquidation, dissolution, or winding-up of the Trust (each a "Liquidation"),
the Holders of the Securities on the date of the Liquidation will be entitled
to receive, out of the assets of the Trust available for distribution to
Holders of Securities after satisfaction of the Trust's liabilities to
creditors, if any, distributions in cash or other immediately available funds
in an amount equal to the aggregate of the stated liquidation amount of $25
per Security plus accumulated and unpaid Distributions thereon to the date of
payment (such amount being the "Liquidation Distribution"), unless, in
connection with a dissolution pursuant to Section 8.1(a)(vi), Debentures in an
aggregate stated principal amount equal to the aggregate stated liquidation
amount of, with an interest rate identical to the distribution rate of, and
accumulated and unpaid interest equal to accrued and unpaid Distributions on,
such Securities shall be distributed on a Pro Rata basis to the Holders of the
Securities in exchange for such Securities.
(b) If, upon any such Liquidation, the Liquidation
Distribution can be paid only in part because the Trust has insufficient
assets available to pay in full the aggregate Liquidation Distribution, then
the amounts payable directly by the Trust on the Securities shall be paid on a
Pro Rata basis. The Holders of the Common Securities will be entitled to
receive distributions upon any such Liquidation Pro Rata with the Holders of
the Capital Securities except that if an Indenture Event of Default has
occurred and is continuing, the Capital Securities shall have a preference
over the Common Securities with regard to such distributions as provided for
in Section 7.1(b).
42
ARTICLE 9
LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, DELAWARE
TRUSTEES OR OTHERS
SECTION 9.1. Liability.
(a) Except as expressly set forth in this Trust
Agreement, the Guarantee and the terms of the Securities, the Sponsor:
(i) shall not be personally liable for the
return of any portion of the capital contributions (or
any return thereon) of the Holders of the Securities
which shall be made solely from assets of the Trust; and
(ii) shall not be required to pay to the Trust
or to any Holder of Securities any deficit upon
dissolution of the Trust or otherwise.
(b) Pursuant to Section 3803(a) of the Business Trust
Act, the Holder of the Common Securities shall be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the
State of Delaware; provided, however, the Holders of the Common Securities
shall be liable for all of the debts and obligations of the Trust (other than
with respect to the Securities) to the extent not satisfied out of the Trust's
assets.
(c) Pursuant to Section 3803(a) of the Business Trust
Act, the Holders of the Capital Securities shall be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the
State of Delaware.
SECTION 9.2. Exculpation.
(a) No Indemnified Person shall be liable,
responsible or accountable in damages or otherwise to the Trust or any Covered
Person for any loss, damage or claim incurred by reason of any act or omission
performed or omitted by such Indemnified Person in good faith on behalf of the
Trust and in a manner such Indemnified Person reasonably believed to be within
the scope of the authority conferred on such Indemnified Person by this Trust
Agreement or by law, except that an Indemnified Person shall be liable for any
such loss, damage or claim incurred by reason of such Indemnified Person's
negligence or willful misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in
relying in good faith upon the records of the Trust and upon such information,
opinions, reports or statements presented to the Trust by any Person as to
matters the Indemnified Person reasonably believes are within such other
Person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Trust, including information, opinions,
reports or statements as to the value and amount of the assets, liabilities,
profits, losses or any other facts pertinent to the existence and amount of
assets from which Distributions to Holders of Securities might properly be
paid.
SECTION 9.3. Fiduciary Duty.
(a) To the extent that, at law or in equity, an
Indemnified Person has duties (including fiduciary duties) and liabilities
relating thereto to the Trust or to any other Covered Person, an Indemnified
Person acting under this Trust Agreement shall not be liable to the Trust or
to another Covered Person for its good faith reliance on the provisions of
this Trust Agreement. The provisions of this Trust Agreement, to the extent
that they restrict the duties and liabilities of an Indemnified Person
43
otherwise existing at law or in equity (other than the duties imposed on the
Property Trustee under the Trust Indenture Act), are agreed by the parties
hereto to replace such other duties and liabilities of such Indemnified
Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or
arises between any Covered Person and any Indemnified
Person; or
(ii) whenever this Trust Agreement or any
other agreement contemplated herein or therein provides
that an Indemnified Person shall act in a manner that
is, or provides terms that are, fair and reasonable to
the Trust or any Holder of Securities,
the Indemnified Person shall resolve such conflict of interest, take such
action or provide such terms, considering in each case the relative interest
of each party (including its own interest) to such conflict, agreement,
transaction or situation and the benefits and burdens relating to such
interests, any customary or accepted industry practices and any applicable
generally accepted accounting practices or principles. In the absence of bad
faith by the Indemnified Person, the resolution, action or term so made, taken
or provided by the Indemnified Person shall not constitute a breach of this
Trust Agreement or any other agreement contemplated herein or of any duty or
obligation of the Indemnified Person at law or in equity or otherwise.
(c) Whenever in this Trust Agreement an Indemnified
Person is permitted or required to make a decision:
(i) in its "discretion" or under a grant of
similar authority, the Indemnified Person shall be
entitled to consider such interests and factors as it
desires, including its own interests, and shall have no
duty or obligation to give any consideration to any
interest of or factors affecting the Trust or any other
Person; or
(ii) in its "good faith" or under another
express standard, the Indemnified Person shall act under
such express standard and shall not be subject to any
other or different standard imposed by this Trust
Agreement or by applicable law.
SECTION 9.4. Indemnification.
(a) The Debenture Issuer shall indemnify, to the full
extent permitted by law, any Debenture Issuer Indemnified Person who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the Trust) by
reason of the fact that he is or was a Debenture Issuer Indemnified Person
against expenses (including attorney fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Trust, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction or upon
a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the Debenture Issuer Indemnified Person did not act in good
faith and in a manner
44
which he reasonably believed to be in or not opposed to the best interests of
the Trust, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
(b) The Debenture Issuer shall indemnify, to the full
extent permitted by law, any Debenture Issuer Indemnified Person who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Trust to procure a judgment
in its favor by reason of the fact that he is or was a Debenture Issuer
Indemnified Person against expenses (including attorneys fees) actually and
reasonably incurred by him in connection with the defense or settlement of
such action or suit if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Trust and except
that no such indemnification shall be made in respect of any claim, issue or
matter as to which such Debenture Issuer Indemnified Person shall have been
adjudged to be liable to the Trust unless and only to the extent that the
Court of Chancery of Delaware or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which such Court
of Chancery or such other court shall deem proper.
(c) Any indemnification under paragraphs (a) and (b)
of this Section 9.4 (unless ordered by a court) shall be made by the Debenture
Issuer only as authorized in the specific case upon a determination that
indemnification of the Debenture Issuer Indemnified Person is proper in the
circumstances because he has met the applicable standard of conduct set forth
in paragraphs (a) and (b). Such determination shall be made (1) by the
Administrative Trustees by a majority vote of a quorum consisting of such
Administrative Trustees who were not parties to such action, suit or
proceeding, (2) if such a quorum is not obtainable, or, even if obtainable, if
a quorum of disinterested Administrative Trustees so directs, by independent
legal counsel in a written opinion, or (3) by the Common Security Holder of
the Trust.
(d) Expenses (including attorneys' fees) incurred by
a Debenture Issuer Indemnified Person in defending a civil, criminal,
administrative or investigative action, suit or proceeding referred to in
paragraphs (a) and (b) of this Section 9.4 shall be paid by the Debenture
Issuer in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such Debenture Issuer
Indemnified Person to repay such amount if it shall ultimately be determined
that he is not entitled to be indemnified by the Debenture Issuer as
authorized in this Section 9.4. Notwithstanding the foregoing, no advance
shall be made by the Debenture Issuer if a determination is reasonably and
promptly made (1) by the Administrative Trustees by a majority vote of a
quorum of disinterested Administrative Trustees, (2) if such a quorum is not
obtainable, or, even if obtainable, if a quorum of disinterested
Administrative Trustees so directs, by independent legal counsel in a written
opinion or (3) the Common Security Holder of the Trust, that, based upon the
facts known to the Administrative Trustees, counsel or the Common Security
Holder at the time such determination is made, such Debenture Issuer
Indemnified Person acted in bad faith or in a manner that such person did not
believe to be in or not opposed to the best interests of the Trust, or, with
respect to any criminal proceeding, that such Debenture Issuer Indemnified
Person believed or had reasonable cause to believe his conduct was unlawful.
In no event shall any advance be made in instances where the Administrative
Trustees, independent legal counsel or Common Security Holder reasonably
determine that such person deliberately breached his duty to the Trust or its
Common or Capital Security Holders.
(e) The indemnification and advancement of expenses
provided by, or granted pursuant to, the other paragraphs of this Section 9.4
shall not be deemed exclusive of any other rights to which those seeking
indemnification and advancement of expenses may be entitled under any
agreement, vote of stockholders or disinterested directors of the Debenture
Issuer or Capital Security Holders of the Trust or otherwise, both as to
action in his official capacity and as to action in another
45
capacity while holding such office. All rights to indemnification under this
Section 9.4 shall be deemed to be provided by a contract between the Debenture
Issuer and each Debenture Issuer Indemnified Person who serves in such
capacity at any time while this Section 9.4 is in effect. Any repeal or
modification of this Section 9.4 shall not affect any rights or obligations
then existing.
(f) The Debenture Issuer or the Trust may purchase
and maintain insurance on behalf of any person who is or was a Debenture
Issuer Indemnified Person against any liability asserted against him and
incurred by him in any such capacity, or arising out of his status as such,
whether or not the Debenture Issuer would have the power to indemnify him
against such liability under the provisions of this Section 9.4.
(g) For purposes of this Section 9.4, references to
"the Trust" shall include, in addition to the resulting or surviving entity,
any constituent entity (including any constituent of a constituent) absorbed
in a consolidation or merger, so that any person who is or was a director,
trustee, officer or employee of such constituent entity, or is or was serving
at the request of such constituent entity as a director, trustee, officer,
employee or agent of another entity, shall stand in the same position under
the provisions of this Section 9.4 with respect to the resulting or surviving
entity as he would have with respect to such constituent entity if its
separate existence had continued.
(h) The indemnification and advancement of expenses
provided by, or granted pursuant to, this Section 9.4 shall, unless otherwise
provided when authorized or ratified, continue as to a person who has ceased
to be a Debenture Issuer Indemnified Person and shall inure to the benefit of
the heirs, executors and administrators of such a person. The obligation to
indemnify as set forth in this Section 9.4 shall survive the resignation or
removal of the Delaware Trustee or the Property Trustee or the termination of
this Trust Agreement.
SECTION 9.5. Outside Businesses.
Subject to the provisions of Section 6.3, any Covered Person,
the Sponsor, the Delaware Trustee and the Property Trustee 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 activities of the
Trust, and the Trust and the Holders of Securities shall have no rights by
virtue of this Trust 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 activities of the Trust, shall not be deemed wrongful
or improper. No Covered Person, the Sponsor, the Delaware Trustee or the
Property Trustee shall be obligated to present any particular investment or
other opportunity to the Trust even if such opportunity is of a character
that, if presented to the Trust, could be taken by the Trust, and any Covered
Person, the Sponsor, the Delaware Trustee and the Property Trustee 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 or other
opportunity. Any Covered Person, the Delaware Trustee and the Property Trustee
may engage or be interested in any financial or other transaction with the
Sponsor or any Affiliate of the Sponsor, or may act as depositary for, trustee
or agent for, or act on any committee or body of holders of, securities or
other obligations of the Sponsor or its Affiliates.
ARTICLE 10
ACCOUNTING
SECTION 10.1. Fiscal Year.
46
The fiscal year ("Fiscal Year") of the Trust shall be the
calendar year, or such other year as is required by the Code.
SECTION 10.2. Certain Accounting Matters.
(a) At all times during the existence of the Trust,
the Administrative Trustees shall keep, or cause to be kept, full books of
account, records and supporting documents, which shall reflect in reasonable
detail, each transaction of the Trust. The books of account shall be
maintained on the accrual method of accounting, in accordance with generally
accepted accounting principles, consistently applied. The Trust shall use the
accrual method of accounting for United States federal income tax purposes.
The books of account and the records of the Trust shall be examined by and
reported upon as of the end of each Fiscal Year of the Trust by a firm of
independent certified public accountants selected by the Administrative
Trustees.
(b) The Administrative Trustees shall cause to be
prepared and delivered to each of the Holders of Securities, within 90 days
after the end of each Fiscal Year of the Trust, annual financial statements of
the Trust, including a balance sheet of the Trust as of the end of such Fiscal
Year, and the related statements of income or loss.
(c) The Administrative Trustees shall cause to be
duly prepared and delivered to each of the Holders of Securities, an annual
United States federal income tax information statement, required by the Code,
containing such information with regard to the Securities held by each Holder
as is required by the Code and the Treasury Regulations. Notwithstanding any
right under the Code to deliver any such statement at a later date, the
Administrative Trustees shall endeavor to deliver all such statements within
30 days after the end of each Fiscal Year of the Trust.
(d) The Administrative Trustees shall cause to be
duly prepared and filed with the appropriate taxing authority, an annual
United States federal income tax return, on a Form 1041 or such other form
required by United States federal income tax law, and any other annual income
tax returns required to be filed by the Administrative Trustees on behalf of
the Trust with any state or local taxing authority.
SECTION 10.3. Banking.
The Trust shall maintain one or more bank accounts in the name
and for the sole benefit of the Trust; provided, however, that all payments of
funds in respect of the Debentures held by the Property Trustee shall be made
directly to the Property Account and no other funds of the Trust shall be
deposited in the Property Account. The sole signatories for such accounts
shall be designated by the Administrative Trustees; provided, however, that
the Property Trustee shall designate the signatories for the Property Account.
SECTION 10.4. Withholding.
The Trust and the Administrative Trustees shall comply with all
withholding requirements under United States federal, state and local law. The
Trust shall request, and the Holders shall provide to the Trust, such forms or
certificates as are necessary to establish an exemption from withholding with
respect to each Holder, and any representations and forms as shall reasonably
be requested by the Trust to assist it in determining the extent of, and in
fulfilling, its withholding obligations. The Administrative Trustees shall
file required forms with applicable jurisdictions and, unless an exemption
from withholding is properly established by a Holder, shall remit amounts
withheld with respect to the Holder to applicable jurisdictions. To the extent
that the Trust is required to withhold
47
and pay over any amounts to any authority with respect to distributions or
allocations to any Holder, the amount withheld shall be deemed to be a
distribution in the amount of the withholding to the Holder. In the event of
any claimed over withholding, Holders shall be limited to an action against
the applicable jurisdiction. If the amount required to be withheld was not
withheld from actual Distributions made, the Trust may reduce subsequent
Distributions by the amount of such withholding.
ARTICLE 11
AMENDMENTS AND MEETINGS
SECTION 11.1. Amendments.
(a) Except as otherwise provided in this Trust
Agreement or by any applicable terms of the Securities, this Trust Agreement
may only be amended by a written instrument approved and executed by the
Sponsor and (i) the Administrative Trustees (or, if there are more than two
Administrative Trustees, a majority of the Administrative Trustees) and (ii)
the Property Trustee if the amendment affects the rights, powers, duties,
obligations or immunities of the Property Trustee; and (iii) the Delaware
Trustee if the amendment affects the rights, powers, duties, obligations or
immunities of the Delaware Trustee.
(b) No amendment shall be made, and any such
purported amendment shall be void and ineffective:
(i) unless, in the case of any proposed
amendment, the Property Trustee shall have first
received an Officer's Certificate from each of the Trust
and the Sponsor that such amendment is permitted by, and
conforms to, the terms of this Trust Agreement
(including the terms of the Securities);
(ii) unless, in the case of any proposed
amendment which affects the rights, powers, duties,
obligations or immunities of the Property Trustee, the
Property Trustee shall have first received:
a. an Officer's Certificate from each
of the Trust and the Sponsor that
such amendment is permitted by,
and conforms to, the terms of this
Trust Agreement (including the
terms of the Securities) and that
all conditions precedent to the
execution and delivery of such
amendment have been satisfied; and
b. an opinion of counsel (who may be
counsel to the Sponsor or the
Trust) that such amendment is
permitted by, and conforms to, the
terms of this Trust Agreement
(including the terms of the
Securities) and that all
conditions precedent to the
execution and delivery of such
amendment have been satisfied; and
(iii) to the extent the result of such
amendment would be to:
a. cause the Trust to be classified
as other than a grantor trust for
United States federal income tax
purposes;
48
b. reduce or otherwise adversely
affect the powers of the Property
Trustee in contravention of the
Trust Indenture Act; or
c. cause the Trust to be deemed to be
an Investment Company required to
be registered under the Investment
Company Act.
(c) If the Trust has issued any Securities that
remain outstanding:
(i) any amendment that would (a) change the
amount or timing of any distribution of the Securities
or otherwise adversely affect the amount of any
distribution required to be made in respect of the
Securities as of a specified date or (b) restrict the
right of a Holder of Securities to institute suit for
the enforcement of any such payment on or after such
date, will entitle the Holders of such Securities,
voting together as a single class, to vote on such
amendment or proposal and such amendment or proposal
shall not be effective except with the approval of each
of the Holders of the Securities affected thereby; and
(ii) except as provided in Section 11.1(c)(i)
hereof, any provision of this Trust Agreement may be
amended by the Trustees and the Sponsor with (i) the
consent of the Holders representing not less than a
Majority in Liquidation Amount of the Securities
outstanding and (ii) receipt by the Trustees of an
opinion of counsel to the effect that such amendment or
the exercise of any power granted to the Trustees in
accordance with such amendment will not affect the
Trust's status as a grantor trust for United States
federal income tax purposes or the Trust's exemption
from status of an Investment Company.
(d) This Section 11.1 shall not be amended without
the consent of all of the Holders of the Securities.
(e) Article 4 shall not be amended without the
consent of the Holders of a Majority in Liquidation Amount of the Common
Securities.
(f) The rights of the Holders of the Common
Securities under Article 5 to increase or decrease the number of, and appoint
and remove Trustees shall not be amended without the consent of the Holders of
a Majority in Liquidation Amount of the Common Securities.
(g) Notwithstanding Section 11.1(c), this Trust
Agreement may be amended by the Trustees and the Sponsor without the consent
of the Holders of the Securities, if such amendment does not adversely affect
in any material respect the rights of the holders of the Securities, to:
(i) cure any ambiguity or inconsistency;
(ii) correct or supplement any provision in
this Trust Agreement that may be defective or
inconsistent with any other provision of this Trust
Agreement;
(iii) add to the covenants, restrictions or
obligations of the Sponsor;
49
(iv) to conform to any change in Rule 3a-5 of
the Investment Company Act or written change in
interpretation or application of Rule 3a-5 of the
Investment Company Act by any legislative body, court,
government agency or regulatory authority; or
(v) to modify, eliminate and add to any
provision of this Trust Agreement to ensure that the
Trust will be classified as a grantor trust for United
States federal income tax purposes at all times that any
Securities are outstanding or to ensure that the Trust
will not be required to register as an Investment
Company under the Investment Company Act.
SECTION 11.2. Meetings of the Holders of Securities; Action by
Written Consent.
(a) Meetings of the Holders of any class of
Securities may be called at any time by the Administrative Trustees (or as
provided in the terms of the Securities) to consider and act on any matter on
which Holders of such class of Securities are entitled to act under the terms
of this Trust Agreement, the terms of the Securities or the rules of any stock
exchange on which the Capital Securities are listed or admitted for trading.
The Administrative Trustees shall call a meeting of the Holders of such class
if directed to do so by the Holders of at least 10% in Liquidation Amount of
such class of Securities. Such direction shall be given by delivering to the
Administrative Trustees one or more calls in a writing stating that the
signing Holders of Securities wish to call a meeting and indicating the
general or specific purpose for which the meeting is to be called. Any Holders
of Securities calling a meeting shall specify in writing the Certificates held
by the Holders of Securities exercising the right to call a meeting and only
those Securities specified shall be counted for purposes of determining
whether the required percentage set forth in the second sentence of this
paragraph has been met.
(b) Except to the extent otherwise provided in the
terms of the Securities, the following provisions shall apply to meetings of
Holders of Securities:
(i) notice of any such meeting shall be given
to all the Holders of Securities having a right to vote
thereat at least 7 days and not more than 60 days before
the date of such meeting. Whenever a vote, consent or
approval of the Holders of Securities is permitted or
required under this Trust Agreement or the rules of any
stock exchange on which the Capital Securities are
listed or admitted for trading, such vote, consent or
approval may be given at a meeting of the Holders of
Securities. Any action that may be taken at a meeting of
the Holders of Securities may be taken without a meeting
and without prior notice if a consent in writing setting
forth the action so taken is signed by the Holders of
securities owning not less than the minimum amount of
securities in liquidation amount that would be necessary
to authorize or take such action at a meeting at which
all Holders of Securities having a right to vote thereon
were present and voting. Prompt notice of the taking of
action without a meeting shall be given to the Holders
of Securities entitled to vote who have not consented in
writing. The Administrative Trustees may specify that
any written ballot submitted to the Security Holders for
the purpose of taking any action without a meeting shall
be returned to the Trust within the time specified by
the Administrative Trustees;
(ii) each Holder of a Security may authorize
any Person to act for it by proxy on all matters in
which a Holder of Securities is entitled to participate,
including waiving notice of any meeting, or voting or
participating at a meeting. No proxy shall be valid
after the expiration of 11 months from the date thereof
50
unless otherwise provided in the proxy. Every proxy
shall be revocable at the pleasure of the Holder of
Securities executing such proxy. Except as otherwise
provided herein, all matters relating to the giving,
voting or validity of proxies shall be governed by the
General Corporation Law of the State of Delaware
relating to proxies, and judicial interpretations
thereunder, as if the Trust were a Delaware corporation
and the Holders of the Securities were stockholders of a
Delaware corporation;
(iii) each meeting of the Holders of the
Securities shall be conducted by the Administrative
Trustees or by such other Person that the Administrative
Trustees may designate; and
(iv) unless the Business Trust Act, this Trust
Agreement, the terms of the Securities, the Trust
Indenture Act or the listing rules of any stock exchange
on which the Capital Securities are then listed for
trading, otherwise provides, the Administrative
Trustees, in their sole discretion, shall establish all
other provisions relating to meetings of Holders of
Securities, including notice of the time, place or
purpose of any meeting at which any matter is to be
voted on by any Holders of Securities, 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 12
REPRESENTATIONS OF PROPERTY TRUSTEE AND DELAWARE TRUSTEE
SECTION 12.1. Representations and Warranties of the Property
Trustee.
The Trustee that acts as initial Property Trustee represents
and warrants to the Trust and to the Sponsor at the date of this Trust
Agreement, and each Successor Property Trustee represents and warrants to the
Trust and the Sponsor at the time of the Successor Property Trustee's
acceptance of its appointment as Property Trustee that:
(a) the Property Trustee is a banking corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or organization, with trust power
and authority to execute and deliver, and to carry out and perform its
obligations under the terms of, this Trust Agreement;
(b) the Property Trustee satisfies the requirements set
forth in Section 6.3(a);
(c) the execution, delivery and performance by the Property
Trustee of this Trust Agreement have been duly authorized by all
necessary corporate action on the part of the Property Trustee. This
Trust Agreement has been duly executed and delivered by the Property
Trustee, and it constitutes a legal, valid and binding obligation of
the Property Trustee, enforceable against it in accordance with its
terms, subject to applicable bankruptcy, reorganization, moratorium,
insolvency and other similar laws affecting creditors' rights
generally and to general principles of equity and the discretion of
the court (regardless of whether the enforcement of such remedies is
considered in a proceeding in equity or at law);
51
(d) the execution, delivery and performance of this Trust
Agreement by the Property Trustee do not conflict with or constitute a
breach of the articles of association or incorporation, as the case
may be, or the by-laws (or other similar organizational documents) of
the Property Trustee; and
(e) no consent, approval or authorization of, or
registration with or notice to, any Delaware or federal banking
authority is required for the execution, delivery or performance by
the Property Trustee of this Trust Agreement.
SECTION 12.2. Representations and Warranties of the Delaware
Trustee.
The Trustee that acts as initial Delaware Trustee represents
and warrants to the Trust and to the Sponsor at the date of this Trust
Agreement, and each Successor Delaware Trustee represents and warrants to the
Trust and the Sponsor at the time of the Successor Delaware Trustee's
acceptance of its appointment as Delaware Trustee that:
(a) the Delaware Trustee satisfies the requirements set
forth in Section 6.2, satisfies Trust Section 3807(a) of the Business
Trust Act and has the power and authority to execute and deliver, and
to carry out and perform its obligations under the terms of, this
Trust Agreement and, if it is not a natural person, is duly organized,
validly existing and in good standing under the laws of its
jurisdiction of incorporation or organization;
(b) the Delaware Trustee has been authorized to perform its
obligations under the Certificate of Trust and this Trust Agreement.
This Trust Agreement under Delaware law constitutes a legal, valid and
binding obligation of the Delaware Trustee, enforceable against it in
accordance with its terms, subject to applicable bankruptcy,
reorganization, moratorium, insolvency and other similar laws
affecting creditors' rights generally and to general principles of
equity and the discretion of the court (regardless of whether the
enforcement of such remedies is considered in a proceeding in equity
or at law); and
(c) no consent, approval or authorization of, or
registration with or notice to, any Delaware or federal banking
authority is required for the execution, delivery or performance by
the Delaware Trustee of this Trust Agreement.
ARTICLE 13
MISCELLANEOUS
SECTION 13.1. Notices.
All notices provided for in this Trust 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:
(a) if given to the Trust, in care of the
Administrative Trustees at the Trust's mailing address set forth below (or
such other address as the Trust may give notice of to the Property Trustee,
the Delaware Trustee and the Holders of the Securities):
Banknorth Capital Trust II
c/o Banknorth Group, Inc.
X.X. Xxx 0000
00
Xxx Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxx 00000
Attention: Chief Financial Officer
Facsimile No: (000) 000-0000
(b) if given to the Delaware Trustee, at the mailing
address set forth below (or such other address as the Delaware Trustee may
give notice of to the Administrative Trustees, the Property Trustee and the
Holders of the Securities):
The Bank of New York (Delaware)
Xxxxx Xxxx Center
X.X. Xxx 0000
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Department
Facsimile No.:
(c) if given to the Property Trustee, at the mailing
address set forth below (or such other address as the Property Trustee may
give notice of to the Administrative Trustees, the Delaware Trustee and the
Holders of the Securities):
The Bank of New York
0 Xxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administrator
Facsimile No.: (000) 000-0000
(d) if given to the Holder of the Common Securities,
at the mailing address of the Sponsor set forth below (or such other address
as the Holder of the Common Securities may give notice of to the Property
Trustee, the Delaware Trustee and the Trust):
Banknorth Group, Inc.
X.X. Xxx 0000
Xxx Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxx 00000
Attention: Chief Financial Officer
Facsimile No.: (000) 000-0000
(e) if given to any other Holder, at the address set
forth on the register of the Trust.
All such notices shall be deemed to have been given when received in person,
telecopied with receipt confirmed or mailed by first class mail, postage
prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the
date of such refusal or inability to deliver.
SECTION 13.2. Governing Law.
This Trust Agreement and the Securities and the rights of the
parties hereunder and thereunder shall be governed by and interpreted in
accordance with the laws of the State of Delaware.
53
SECTION 13.3. Intention of the Parties.
It is the intention of the parties hereto that the Trust be
classified for United States federal income tax purposes as a grantor trust.
The provisions of this Trust Agreement shall be interpreted in a manner
consistent with such classification.
SECTION 13.4. Headings.
Headings contained in this Trust Agreement are inserted for
convenience of reference only and do not affect the interpretation of this
Trust Agreement or any provision hereof.
SECTION 13.5. Successors and Assigns.
Whenever in this Trust Agreement any of the parties hereto is
named or referred to, the successors and assigns of such party shall be deemed
to be included, and all covenants and agreements in this Trust Agreement by
the Sponsor and the Trustees shall bind and inure to the benefit of their
respective successors and assigns, whether so expressed.
SECTION 13.6. Partial Enforceability.
If any provision of this Trust Agreement, or the application of
such provision to any Person or circumstance, shall be held invalid, the
remainder of this Trust Agreement, or the application of such provision to
persons or circumstances other than those to which it is held invalid, shall
not be affected thereby.
SECTION 13.7. Counterparts.
This Trust Agreement may contain more than one counterpart of
the signature page and this Trust Agreement may be executed by the affixing of
the signature of each of the Trustees to one of such counterpart signature
pages. All of such counterpart signature pages shall be read as though one,
and they shall have the same force and effect as though all of the signers had
signed a single signature page.
[The remainder of this page left blank intentionally; The
signature page follows.]
54
IN WITNESS WHEREOF, the undersigned have caused these presents
to be executed as of the day and year first above written.
BANKNORTH GROUP, INC.
as Sponsor, as Common Securities Holder
and as Debenture Issuer
By: /S/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Executive Vice President,
Chief Operating Officer
and Chief Financial Officer
THE BANK OF NEW YORK
as Property Trustee
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Assistant Treasurer
THE BANK OF NEW YORK (DELAWARE)
as Delaware Trustee
By: /s/ Xxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Senior Vice President
/s/ Xxxxxxx X. Xxxx
----------------------------------------
Xxxxxxx X. Xxxx
as Administrative Trustee
/s/ Xxxxx X. Xxxxxxx
----------------------------------------
Xxxxx X. Xxxxxxx
as Administrative Trustee
/s/ Xxxxx X. Xxxxxxxx
----------------------------------------
Xxxxx X. Xxxxxxxx
as Administrative Trustee
55
EXHIBIT A
CAPITAL SECURITY CERTIFICATE
THIS CAPITAL SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING
OF THE TRUST AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE "DEPOSITARY"), OR
A NOMINEE OF THE DEPOSITARY. THIS CAPITAL SECURITY IS EXCHANGEABLE FOR CAPITAL
SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS
NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE TRUST AGREEMENT AND
NO TRANSFER OF THIS CAPITAL SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY
AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF
THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE
REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS CAPITAL SECURITY CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CAPITAL SECURITY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME
AS REGISTERED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY
PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
CERTIFICATE NO. 1 NUMBER OF CAPITAL SECURITIES:
8,000,000
CUSIP NO. 06646Y 20 1
CERTIFICATE EVIDENCING 8% TRUST PREFERRED SECURITIES
OF
BANKNORTH CAPITAL TRUST II
8% TRUST PREFERRED SECURITIES
FULLY AND UNCONDITIONALLY
GUARANTEED BY BANKNORTH GROUP, INC.
Banknorth Capital Trust II, a statutory business trust created
under the laws of the State of Delaware (the "Trust"), hereby certifies that
Cede & Co. (the "Holder"), is the registered owner of $200,000,000 capital
securities of the Trust representing undivided preferred beneficial interests
in the assets of the Trust and designated the "8% Trust Preferred Securities"
(the "Capital Securities"). The Capital Securities are transferable on the
register of the Trust, in person or by a duly authorized attorney, upon
surrender of this certificate duly endorsed and in proper form for transfer as
provided in the Trust Agreement (as defined below). The designation, rights,
privileges, restrictions, preferences and other terms and provisions of the
Capital Securities represented hereby are issued and shall in all respects be
A-1
subject to the provisions of the Amended and Restated Trust Agreement of the
Trust, dated as of February 22, 2002, as the same may be amended from time to
time (the "Trust Agreement"), by and among Banknorth Group, Inc., Xxxxxxx X.
Xxxx, Xxxxx X. Xxxxxxx and Xxxxx X. Xxxxxxxx, as Administrative Trustees, The
Bank of New York, as Property Trustee, and The Bank of New York (Delaware), as
Delaware Trustee, and the holders, from time to time, of undivided preferred
beneficial interests in the assets of the Trust. Capitalized terms used herein
but not defined shall have the meaning given them in the Trust Agreement. The
Holder is entitled to the benefits of the Guarantee to the extent described
therein. The Sponsor will provide a copy of the Trust Agreement, the Guarantee
and the Indenture to a Holder without charge upon written request to the
Sponsor at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the
Trust Agreement and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States
federal, state and local income tax purposes, the Debentures as indebtedness
and the Capital Securities as evidence of undivided beneficial ownership
interests in the Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate
this 22nd day of February, 2002.
BANKNORTH CAPITAL TRUST II
By:
-------------------------------
Name:
Title: Administrative Trustee
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Capital Securities of Banknorth Capital
Trust II referred to in the within-mentioned Trust Agreement.
THE BANK OF NEW YORK
as Property Trustee
By:
---------------------------
Authorized Signatory
Dated: February 22, 2002
A-2
EXHIBIT B
TRANSFER OF THIS CERTIFICATE IS SUBJECT TO THE
CONDITIONS SET FORTH IN THE TRUST AGREEMENT
REFERRED TO BELOW.
CERTIFICATE NO. 1 NUMBER OF COMMON SECURITIES: 247,423
CERTIFICATE EVIDENCING COMMON SECURITIES
OF
BANKNORTH CAPITAL TRUST II
8% COMMON SECURITIES
Banknorth Capital Trust II, a statutory business trust created
under the laws of the State of Delaware (the "Trust"), hereby certifies that
Banknorth Group, Inc. (the "Holder") is the registered owner of common
securities of the Trust representing an undivided beneficial interest in the
assets of the Trust and designated the "8% Common Securities" (the "Common
Securities"). The Common Securities are not transferable and any attempted
transfer thereof shall be void except as permitted by applicable law and by
Section 7.9(b)(ii) of the Trust Agreement (as defined below). The designation,
rights, privileges, restrictions, preferences and other terms and provisions
of the Common Securities represented hereby are issued and shall in all
respects be subject to the provisions of the Amended and Restated Trust
Agreement of the Trust, dated as of February 22, 2002 (as the same may be
amended from time to time, the "Trust Agreement"), by and among Banknorth
Group, Inc., as Sponsor, Xxxxxxx X. Xxxx, Xxxxx X. Xxxxxxx and Xxxxx X.
Xxxxxxxx, as Administrative Trustees, The Bank of New York, as Property
Trustee, and The Bank of New York (Delaware), as Delaware Trustee, and the
holders, from time to time, of undivided beneficial interests in the assets of
the Trust. The Holder is entitled to the benefits of the Guarantee to the
extent described therein. Capitalized terms used herein but not defined shall
have the meaning given them in the Trust Agreement. The Sponsor will provide a
copy of the Trust Agreement, the Guarantee and the Indenture to the Holder
without charge upon written request to the Sponsor at its principal place of
business.
Upon receipt of this certificate, the Holder is bound by the
Trust Agreement and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States
federal, state and local income tax purposes, the Debentures as indebtedness
and the Common Securities as evidence of an undivided indirect beneficial
ownership interest in the Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate
this 22nd day of February, 2002.
BANKNORTH CAPITAL TRUST II
By:
------------------------------
Name: Xxxxxxx X. Xxxx
Title: Administrative Trustee
A-3
