1
Draft as of 1/17/97
AMENDED AND RESTATED
TRUST AGREEMENT
among
JEFFBANKS, INC., as Depositor,
BANKERS TRUST COMPANY
as Property Trustee,
and
BANKERS TRUST (DELAWARE),
as Delaware Trustee
Dated as of January __, 1997
JEFFBANKS CAPITAL TRUST I
2
JEFFBANKS CAPITAL TRUST I
Certain Sections of this Trust Agreement relating, to Sections 310
through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Trust Agreement
Act Section Section
----------------- -----------------------
(Section) 310(a)(1)...................................... 8.7
(a)(2)....................................... 8.7
(a)(3)....................................... 8.9
(a)(4)....................................... 2.7(a)(ii)
(b).......................................... 8.8, 10.10(b)
(Section) 311(a)......................................... 8.13, 10.10(b)
(b).......................................... 8.13, 10.10(b)
(Section) 312(a)......................................... 5.7, 10.10(b)
(b).......................................... 5.7, 10.10(b), (f)
(c).......................................... 5.7
(Section) 313(a)......................................... 8.15(a)
(a)(4)....................................... 8.15(b), 10.10(c)
(b).......................................... 8.15(c), 10.10(c)
(c).......................................... 10.9, 10.10(c)
(d).......................................... 10.10(c)
(Section) 314(a)......................................... 8.16, 10.10(d)
(b).......................................... Not Applicable
(c)(1)....................................... 8.17, 10.10(d), (e)
(c)(2)....................................... 8.17, 10.10(d), (e)
(c)(3)....................................... 8.17, 10.10(d), (e)
(e).......................................... 8.17, 10.10(e)
(Section) 315(a)......................................... 8.8
(b).......................................... 8.1(c)
(c).......................................... 8.2
(d).......................................... 8.1(d)
(e).......................................... Not Applicable
(Section) 316(a)......................................... Not Applicable
(a)(1)(A).................................... Not Applicable
(a)(1)(B).................................... Not Applicable
(a)(2)....................................... Not Applicable
(b).......................................... 5.13
(c).......................................... 6.7
(Section) 317(a)(1)...................................... Not Applicable
(a)(2)....................................... 8.14
(b).......................................... 5.10
(Section) 318(a)......................................... 10.10(a)
Note: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Trust Agreement.
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TABLE OF CONTENTS
PAGE
ARTICLE I. DEFINED TERMS
SECTION 1.1. Definitions................................... 2
ARTICLE II. CONTINUATION OF THE ISSUER TRUST
SECTION 2.1. Name.......................................... 17
SECTION 2.2. Office of the Delaware Trustee; Principal
Place of Business............................. 17
SECTION 2.3. Initial Contribution of Trust Property,
Organizational Expenses....................... 18
SECTION 2.4. Issuance of Preferred Securities.............. 18
SECTION 2.5. Issuance of the Common Securities;
Subscription and Purchase of Junior
Subordinated Debentures....................... 18
SECTION 2.6. Declaration of Trust.......................... 19
SECTION 2.7. Authorization to Enter into Certain
Transactions.................................. 19
SECTION 2.8. Assets of Trust............................... 23
SECTION 2.9. Title to Trust Property....................... 23
ARTICLE III. PAYMENT ACCOUNT
SECTION 3.1. Payment Account............................... 23
ARTICLE IV. DISTRIBUTIONS; REDEMPTION
SECTION 4.1. Distributions................................. 24
SECTION 4.2. Redemption.................................... 25
SECTION 4.3. Subordination of Common Securities............ 28
SECTION 4.4. Payment Procedures............................ 29
SECTION 4.5. Tax Returns and Reports....................... 30
SECTION 4.6. Payment of Taxes, Duties, Etc.
of the Issuer Trust........................... 30
SECTION 4.7. Payments under Indenture or Pursuant to
Direct Actions................................ 31
SECTION 4.8. Liability of the Holder of Common Securities.. 31
ARTICLE V. TRUST SECURITIES CERTIFICATES
SECTION 5.1. Initial Ownership............................. 31
SECTION 5.2. The Trust Securities Certificates............. 31
SECTION 5.3. Execution and Delivery of Trust
Securities Certificates....................... 32
SECTION 5.4. Global Preferred Security..................... 32
SECTION 5.5. Registration of Transfer and Exchange
Generally; Certain Transfers and
Exchanges; Preferred Securities Certificates.. 34
SECTION 5.6. Mutilated, Destroyed, Lost or Stolen
Trust Securities Certificates................. 38
SECTION 5.7. Persons Deemed Holders........................ 39
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SECTION 5.8. Access to List of Holders'
Names and Addresses........................... 39
SECTION 5.9. Maintenance of Office or Agency............... 39
SECTION 5.10. Appointment of Paying Agent................... 39
SECTION 5.11. Ownership of Common Securities
by Depositor.................................. 40
SECTION 5.12. Notices to Clearing Agency.................... 41
SECTION 5.13. Rights of Holders............................. 41
ARTICLE VI. ACTS OF HOLDERS; MEETINGS;
VOTING
SECTION 6.1. Limitations on Holder's Voting Rights......... 44
SECTION 6.2. Notice of Meetings............................ 45
SECTION 6.3. Meetings of Holders........................... 45
SECTION 6.4. Voting Rights................................. 46
SECTION 6.5. Proxies, etc.................................. 46
SECTION 6.6. Holder Action by Written
Consent....................................... 46
SECTION 6.7. Record Date for Voting and Other
Purposes...................................... 46
SECTION 6.8. Acts of Holders............................... 47
SECTION 6.9. Inspection of Records......................... 48
ARTICLE VII. REPRESENTATIONS AND WARRANTIES
SECTION 7.1. Representations and Warranties
of the Property Trustee and
the Delaware Trustee.......................... 48
SECTION 7.2. Representations and Warranties of
Depositor..................................... 50
ARTICLE VIII. THE ISSUER TRUSTEES; THE ADMINISTRATORS
SECTION 8.1. Certain Duties and Responsibilities........... 50
SECTION 8.2. Certain Notices............................... 53
SECTION 8.3. Certain Rights of Property Trustee............ 54
SECTION 8.4. Not Responsible for Recitals
or Issuance of Securities..................... 56
SECTION 8.5. May Hold Securities........................... 56
SECTION 8.6. Compensation; Indemnity; Fees................. 56
SECTION 8.7. Corporate Property Trustee Required;
Eligibility of Trustees and Administrators.... 57
SECTION 8.8. Conflicting Interests......................... 58
SECTION 8.9. Co-Trustees and Separate Trustee.............. 58
SECTION 8.10. Resignation and Removal; Appointment of
Successor..................................... 60
SECTION 8.11. Acceptance of Appointment by
Successor..................................... 62
SECTION 8.12. Merger, Conversion, Consolidation or
Succession to Business........................ 62
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SECTION 8.13. Preferential Collection of Claims
Against Depositor or Issuer Trust............. 63
SECTION 8.14. Trustee May File Proofs of Claims............. 63
SECTION 8.15. Reports by Property Trustee................... 64
SECTION 8.16. Reports to the Property Trustee............... 64
SECTION 8.17. Evidence of Compliance with Conditions
Precedent..................................... 65
SECTION 8.18. Number of Issuer Trustees..................... 65
SECTION 8.19. Delegation of Power........................... 65
SECTION 8.20. Appointment of Administrators................. 65
ARTICLE IX. TERMINATION, LIQUIDATION AND MERGER
SECTION 9.1. Termination Upon Expiration Date;
Termination Upon Tax Event.................... 66
SECTION 9.2. Early Termination............................. 66
SECTION 9.3. Termination................................... 67
SECTION 9.4. Liquidation................................... 67
SECTION 9.5. Mergers, Consolidations, Amalgamations
or Replacements of the Issuer Trust........... 69
ARTICLE X. MISCELLANEOUS PROVISIONS
SECTION 10.1. Limitation of Rights of Holders............... 70
SECTION 10.2. Amendment..................................... 71
SECTION 10.3. Separability.................................. 72
SECTION 10.4. Governing Law................................. 72
SECTION 10.5. Payments Due on Non-Business Day.............. 72
SECTION 10.6. Successors.................................... 73
SECTION 10.7. Headings...................................... 73
SECTION 10.8. Reports, Notices and Demands.................. 73
SECTION 10.9. Agreement Not to Petition..................... 74
SECTION 10.10. Trust Indenture Act; Conflict with
Trust Indenture Act........................... 75
SECTION 10.11. Acceptance of Terms of Trust Agreement,
Guarantee and Indenture....................... 75
Exhibit A Certificate of Trust
Exhibit B Form of Certificate Depositary Agreement
Exhibit C Form of Common Securities Certificate
Exhibit D Form of Preferred Securities Certificate
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Draft as of 1/17/97
AGREEMENT
Amended and Restated Trust Agreement, dated as of January __, 1997,
among (i) JeffBanks, Inc., a Pennsylvania corporation (including any
successors or assigns, the "Depositor"), (ii) Bankers Trust Company, a New
York banking corporation, as property trustee, (in such capacity, the
"Property Trustee" and, in its separate corporate capacity and not in its
capacity as Property Trustee, the "Bank"), and (iii) Bankers Trust
(Delaware), a Delaware banking corporation, as Delaware trustee (the
"Delaware Trustee") (the Property Trustee and the Delaware Trustee are
referred to collectively herein as the "Issuer Trustees") and (iv) the
several Holders, as hereinafter defined.
WITNESSETH
WHEREAS, the Depositor, the Property Trustee, and the Delaware Trustee
have heretofore duly declared and established a business trust pursuant to
the Delaware Business Trust Act by the entering into a certain Trust
Agreement, dated as of January __, 1997 (the "Original Trust Agreement"), and
by the execution and filing by the Delaware Trustee with the Secretary of
State of the State of Delaware of the Certificate of Trust, filed on January
__, 1997 (the "Certificate of Trust"), attached as Exhibit A; and
WHEREAS, the Depositor and the Delaware Trustee desire to amend and
restate the Original Trust Agreement in its entirety as set forth herein to
provide for, among other things, (i) the issuance of the Common Securities by
the Issuer Trust to the Depositor, (ii) the issuance and sale of the
Preferred Securities by the Issuer Trust pursuant to the Underwriting
Agreement, (iii) the acquisition by the Issuer Trust from the Depositor of
all of the right, title and interest in the Junior Subordinated Debentures,
and (iv) the appointment of the Administrators.
NOW THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each party, for the benefit of
the other parties and for the benefit of the Holders, hereby amends and
restates the Original Trust Agreement in its entirety and agrees, intending
to be legally bound, as follows:
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ARTICLE I
DEFINED TERMS
SECTION 1.1. Definitions.
For all purposes of this Trust Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) The terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(b) All other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) The words "include," "includes" and "including" shall be deemed to
be followed by the phrase "without limitation";
(d) All accounting terms used but not defined herein have the meanings
assigned to them in accordance with United States generally accepted
accounting principles as in effect at the time of computation;
(e) Unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may
be, of this Trust Agreement;
(f) The words "herein", "hereof' and "hereunder" and other words of
similar import refer to this Trust Agreement as a whole and not to any
particular Article, Section or other subdivision; and
(g) all references to the date the Preferred Securities were
originally issued shall refer to the date the Initial Preferred Securities
were originally issued.
"Act" has the meaning specified in Section 6.8.
"Additional Amount" means, with respect to Trust Securities of a given
Liquidation Amount and/or a given period, the amount of Additional Interest
(as defined in the Indenture) paid by the Depositor on a Like Amount of
Debentures for such period.
"Additional Sums" has the meaning specified in Section 10.6 of the
Indenture.
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"Administrators" means each Person appointed in accordance with Section
8.20 solely in such Person's capacity as Administrator of the Issuer Trust
heretofore formed and continued hereunder and not in such Person's individual
capacity, or any successor Administrator appointed as herein provided; with
the initial Administrators being _______________________ and
_____________________ .
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling' and "controlled" have meanings correlative to the
foregoing.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Preferred Security or beneficial interest
therein, the rules and procedures of the Depositary for such Preferred
Security, in each case to the extent applicable to such transaction and as in
effect from time to time.
"Bank" has the meaning specified in the preamble to this Trust
Agreement.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having jurisdiction in
the premises judging such Person a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjudication
or composition of or in respect of such Person under any applicable federal
or State bankruptcy, insolvency, reorganization or other similar law, or
appointing a receiver, liquidator, assignee, trustee, sequestrator (or other
similar official) of such Person or of any substantial part of its property
or ordering the winding up or liquidation of its affairs, and the continuance
of any such decree or order unstayed and in effect for a period of 60
consecutive days; or
(b) the institution by such Person of proceedings to be adjudicated a
bankrupt or insolvent, or the consent by it to the institution of bankruptcy
or insolvency proceedings against it, or the filing by it of a petition or
answer or consent seeking reorganization or relief under any applicable
federal or State bankruptcy, insolvency, reorganization or other similar law,
or the consent by it to the filing of any such petition or to the appointment
of a receiver, liquidator, assignee, trustee,
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sequestrator (or similar official) of such Person or of any substantial part
of its property or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to pay its
debts generally as they become due and its willingness to be adjudicated a
bankrupt, or the taking of corporate action by such Person in furtherance of
any such action.
"Bankruptcy Laws" has the meaning specified in Section 10.9.
"Board of Directors" means the board of directors of the Depositor or
the Executive Committee of the board of directors of the Depositor (or any
other committee of the board of directors of the Depositor performing similar
functions) or a committee designated by the board of directors of the
Depositor (or any such committee), comprised of two or more members of the
board of directors of the Depositor or officers of the Depositor, or both.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Depositor to have been duly
adopted by the Depositor's Board of Directors, or such committee of the Board
of Directors or officers of the Depositor to which authority to act on behalf
of the Board of Directors has been delegated, and to be in full force and
effect on the date of such certification, and delivered to the Issuer
Trustees.
"Business Day" means a day other than (a) a Saturday or Sunday, (b) a
day on which banking institutions in the City of New York or in the City of
Philadephia, New York are authorized or required by law or executive order to
remain closed or (c) a day on which the Property Trustee's Corporate Trust
Office or the Delaware Trustee's Corporate Trust Office or the Corporate
Trust Office of the Debenture Trustee is closed for business.
"Capital Treatment Event" means, in respect of any Issuer Trust, the
reasonable determination by the Depositor that, as a result of the occurrence
of any amendment to, or change (including any announced prospective change)
in, the laws (or any rules or regulations thereunder) of the United States or
any political subdivision thereof or therein, or as a result of any official
or administrative pronouncement or action or judicial decision interpreting
or applying such laws or regulations, which amendment or change is effective
or such pronouncement, action or decision is announced on or after the date
of the issuance of the Preferred Securities of such Issuer Trust, there is
more than an insubstantial risk that the Depositor will not be entitled to
treat an amount equal to the Liquidation Amount of such Preferred Securities
as "Tier 1 Capital" (or the then
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equivalent thereof) for purposes of the risk-based capital adequacy
guidelines of the Board of Governors of the Federal Reserve System, as then
in effect and applicable to the Depositor.
"Certificate Depositary Agreement" means the agreement among the Issuer
Trust, the Depositor and DTC, as the initial Clearing Agency, dated as of the
Closing Date, substantially in the form attached as Exhibit B, as the same
may be amended and supplemented from time to time.
"Certificate of Trust" has the meaning specified in the preamble to
this Trust Agreement.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended. The Depository Trust Company ("DTC") shall be the initial Clearing
Agency.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with
the Clearing Agency.
"Closing Date" means the Time of Delivery for the Firm Securities,
which date is also the date of execution and delivery of this Trust
Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Common Securities Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached as Exhibit
C.
"Common Security" means an undivided beneficial interest in the assets
of the Issuer Trust, having a Liquidation Amount of $25 and having the rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Corporate Trust Office" means the principal office of the Property
Trustee located in New York City which at the time of
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the execution of this Trust Agreement is located at Xxxx Xxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000; Attention: Corporate Trust and Agency Group - Corporate
Market Services.
"Debenture Event of Default" means an "Event of Default" as defined in
the Indenture.
"Debenture Redemption Date" means, with respect to any Debentures to be
redeemed under the Indenture, the date fixed for redemption of such
Debentures under the Indenture.
"Debenture Trustee" means Bankers Trust Company, a New York banking
corporation and any successor.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. Section 3801, et seq., as it may be amended from
time to time.
"Delaware Trustee" means the corporation identified as the "Delaware
Trustee" in the preamble to this Trust Agreement solely in its capacity as
Delaware Trustee of the Issuer Trust continued hereunder and not in its
individual capacity, or its successor in interest in such capacity, or any
successor trustee appointed as herein provided.
"Depositary" means the Depository Trust Company or any successor
thereto.
"Depositor" has the meaning specified in the preamble to this Trust
Agreement.
"Distribution Date" has the meaning specified in Section 4.1(a).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.1.
"Early Termination Event" has the meaning specified in Section 9.2.
"Event of Default" means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) the occurrence of a Debenture Event of Default; or
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(b) default by the Issuer Trust in the payment of any Distribution
when it becomes due and payable, and continuation of such default for a
period of 30 days; or
(c) default by the Issuer Trust in the payment of any Redemption Price
of any Trust Security when it becomes due and payable; or
(d) default in the performance, or breach, in any material respect, of
any covenant or warranty of the Issuer Trustees in this Trust Agreement
(other than a covenant or warranty a default in the performance of which or
the breach of which is dealt with in clause (b) or (c) above) and
continuation of such default or breach for a period of 60 days after there
has been given, by registered or certified mail, to the Issuer Trustees and
the Depositor by the Holders of at least 25% in aggregate Liquidation Amount
of the Outstanding Preferred Securities, a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(e) the occurrence of any Bankruptcy Event with respect to the
Property Trustee or all or substantially all of its property if a successor
Property Trustee has not been appointed within a period of 90 days thereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and any successor statute thereto, in each case as amended from time
to time.
"Expiration Date" has the meaning specified in Section 9.1.
"Firm Securities" means an aggregate Liquidation Amount of $22,000,000
of the Issuer Trust's ____% preferred securities.
"Global Preferred Securities Certificate" means a Preferred Securities
Certificate evidencing ownership of Global Preferred Securities.
"Global Preferred Security" means a Preferred Security, the ownership
and transfers of which shall be made through book entries by a Clearing
Agency as described in Section 5.4.
"Guarantee Agreement" means the Guarantee Agreement executed and
delivered by the Depositor and Bankers Trust Company, as trustee,
contemporaneously with the execution and delivery of this Trust Agreement,
for the benefit of the holders of the Preferred Securities, as amended from
time to time.
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"Holder" means a Person in whose name a Trust Security or Trust
Securities is registered in the Securities Register; any such Person shall be
deemed to be a beneficial owner within the meaning of the Delaware Business
Trust Act.
"Indenture" means the Junior Subordinated Indenture, dated as of
January __, 1997, between the Depositor and the Debenture Trustee (as amended
or supplemented from time to time) relating to the issuance of the Junior
Subordinated Debentures.
"Investment Company Event" means the receipt by the Issuer Trust of an
Opinion of Counsel experienced in such matters to the effect that, as a
result of the occurrence of a change in law or regulation or a written change
(including any announced prospective change) in interpretation or application
of law or regulation by any legislative body, court, governmental agency or
regulatory authority, there is more than an insubstantial risk that the
Issuer Trust is or will be considered an "investment company" that is
required to be registered under the Investment Company Act, which change or
prospective change becomes effective or would become effective, as the case
may be, on or after the date of the issuance of the Preferred Securities.
"Issuer Trust" means JeffBanks Capital Trust I.
"Issuer Trustees" means, collectively, the Property Trustee and the
Delaware Trustee.
"Investment Company Act" means the Investment Company Act of 1940, as
amended.
"Junior Subordinated Debentures" means the aggregate principal amount
of the Depositor's ____% Junior Subordinated Deferrable Interest Debentures,
due ________ __, 2027, issued pursuant to the Indenture.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security
interest or preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of Trust
Securities, Trust Securities having a Liquidation Amount equal to that
portion of the principal amount of Junior Subordinated Debentures to be
contemporaneously redeemed in accordance with the Indenture, allocated to the
Common Securities and to the Preferred Securities based upon the relative
Liquidation Amounts of such classes and (b) with respect to a distribution of
Junior Subordinated Debentures to
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Holders of Trust Securities in connection with a dissolution or liquidation
of the Issuer Trust, Junior Subordinated Debentures having a principal amount
equal to the Liquidation Amount of the Trust Securities of the Holder to whom
such Junior Subordinated Debentures are distributed.
"Liquidation Amount" means the stated amount of $25 per Trust Security.
"Liquidation Date" means the date on which Junior Subordinated
Debentures are to be distributed to Holders of Trust Securities in connection
with a termination and liquidation of the Issuer Trust pursuant to Section
9.4.
"Liquidation Distribution" has the meaning specified in Section 9.4(d).
"Majority in Liquidation Amount of the Preferred Securities" or
"Majority in Liquidation Amount of the Common Securities" means, except as
provided by the Trust Indenture Act, Preferred Securities or Common
Securities, as the case may be, representing more than 50% of the aggregate
Liquidation Amount of all then Outstanding Preferred Securities or Common
Securities, as the case may be.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board and Chief Executive Officer, President or a Vice President, and by
the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary, of the Depositor, and delivered to the party provided herein. Any
Officers' Certificate delivered with respect to compliance with a condition
or covenant provided for in this Trust Agreement shall include:
(a) a statement by each officer signing the Officers' Certificate
that such officer has read the covenant or condition and the definitions
relating thereto;
(b) a statement that such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(c) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for or an employee of the Depositor or any Affiliate of the
Depositor.
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"Option Closing Date" shall have the meaning provided in the
Underwriting Agreement.
"Option Securities" means an aggregate Liquidation Amount of $3,300,000
of the Issuer Trust's ____% preferred securities, issuable to the
Underwriter, at its option, exercisable within 30 days after the date of the
Prospectus, solely to cover over-allotments, if any.
"Original Trust Agreement" has the meaning specified in the preamble to
this Trust Agreement.
"Outstanding," with respect to Trust Securities, means, as of the date
of determination, all Trust Securities theretofore executed and delivered
under this Trust Agreement, except:
(a) Trust Securities theretofore canceled by the Property Trustee
or delivered to the Property Trustee for cancellation;
(b) Trust Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Property Trustee or
any Paying Agent for the Holders of such Preferred Securities, provided that
if such Trust Securities are to be redeemed, notice of such redemption has
been duly given pursuant to this Trust Agreement; and
(c) Trust Securities which have been paid or in exchange for or
in lieu of which other Trust Securities have been executed and delivered
pursuant to Sections 5.4, 5.5, 5.6 and 5.13;
provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Preferred Securities have given any
request, demand, authorization, direction, notice, consent or waiver
hereunder, Preferred Securities owned by the Depositor, or any Issuer
Trustee, any Administrator or any Affiliate of the Depositor, any Issuer
Trustee shall be disregarded and deemed not to be Outstanding, except that
(a) in determining whether any Issuer Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Preferred Securities that such Issuer Trustee or such
Administrator, as the case may be, knows to be so owned shall be so
disregarded and (b) the foregoing shall not apply at any time when all of the
outstanding Preferred Securities are owned by the Depositor, one or more of
the Issuer Trustees, one or more of the Administrators and/or any such
Affiliate. Preferred Securities so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
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satisfaction of the Administrators the pledgee's right so to act with respect
to such Preferred Securities and that the pledgee is not the Depositor or any
Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner of Global
Preferred Securities as reflected in the records of the Clearing Agency or,
if a Clearing Agency Participant is not the Owner, then as reflected in the
records of a Person maintaining an account with such Clearing Agency
(directly or indirectly, in accordance with the rules of such Clearing
Agency.
"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 5.10 and shall initially be the Property Trustee.
"Payment Account" means a segregated non-interest-bearing corporate
trust account maintained by the Property Trustee with the Property Trustee in
its trust department for the benefit of the Holders in which all amounts paid
in respect of the Junior Subordinated Debentures will be held and from which
the Property Trustee, through the Paying Agent, shall make payments to the
Holders in accordance with Sections 4.1 and 4.2.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company,
company, limited liability company, trust, unincorporated organization or
government or any agency or political subdivision thereof, or any other
entity of whatever nature.
"Preferred Securities Certificate" means a certificate evidencing
ownership of Preferred Securities, substantially in the form attached as
Exhibit D.
"Preferred Security" means a Firm Security or an Option Security, each
constituting a preferred undivided beneficial interest in the assets of the
Issuer Trust, having a Liquidation Amount of $25 and having the rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Property Trustee" means the Person identified as the "Property
Trustee" in the preamble to this Trust Agreement solely in its capacity as
Property Trustee of the Issuer Trust formed and continued hereunder and not
in its individual capacity, or its successor in interest in such capacity, or
any successor property trustee appointed as herein provided.
"Redemption Date" means, with respect to any Trust Security to be
redeemed, the date fixed for such redemption by or pursuant to this Trust
Agreement; provided that each Junior
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Subordinated Debenture Redemption Date and the stated maturity of the Junior
Subordinated Debentures shall be a Redemption Date for a Like Amount of Trust
Securities, including but not limited to any date of redemption pursuant to
the occurrence of any Special Event.
"Redemption Price" means with respect to a redemption of any Trust
Security, the Liquidation Amount of such Trust Security, together with
accumulated but unpaid Distributions to but excluding the date fixed for
redemption, plus the related amount of the premium, if any, paid by the
Depositor upon the concurrent redemption of a Like Amount of Junior
Subordinated Debentures.
"Relevant Trustee" has the meaning specified in Section 8.10.
"Responsible Officer" when used with respect to the Property Trustee
means any officer assigned to the Corporate Trust Office, including any
managing director, vice president, assistant vice president, assistant
treasurer, assistant secretary or any other officer of the Property Trustee
customarily performing functions similar to those performed by any of the
above designated officers and having direct responsibility for the
administration of the Indenture, and also, with respect to a particular
matter, any other officer to whom such matter is referred because of such
officer's knowledge of and familiarity with the particular subject.
"Securities Act" means the Securities Act of 1933, as amended, and any
successor statute thereto, in each case as amended from time to time.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 5.5.
"Special Event" means any Tax Event, Capital Treatment Event or
Investment Company Event.
"Successor Preferred Securities" of any particular Preferred Securities
Certificate means every Preferred Securities Certificate issued after, and
evidencing all or a portion of the same beneficial interest in the Issuer
Trust as that evidenced by, such particular Preferred Securities Certificate;
and, for the purposes of this definition, any Preferred Securities
Certificate executed and delivered under Section 5.6 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Preferred Securities
Certificate shall be deemed to evidence the same beneficial interest in the
Issuer Trust as the mutilated, destroyed, lost or stolen Preferred Securities
Certificate.
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"Tax Event" means the receipt by the Issuer Trust of an Opinion of
Counsel experienced in such matters to the effect that, as a result of 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 as a result of any
official or administrative pronouncement or action or judicial decision
interpreting or applying such laws or regulations, which amendment or change
is effective or which pronouncement, action or decision is announced on or
after the date of issuance of the Preferred Securities, there is more than an
insubstantial risk that (i) the Issuer Trust is, or will be within 90 days of
the delivery of such Opinion of Counsel, subject to United States Federal
income tax with respect to income received or accrued on the Junior
Subordinated Debentures, (ii) interest payable by the Depositor on the Junior
Subordinated Debentures is not, or within 90 days of the delivery of such
Opinion of Counsel will not be, deductible by the Depositor, in whole or in
part, for United States federal income tax purposes, or (iii) the Issuer
Trust is, or will be within 90 days of the delivery of such Opinion of
Counsel, subject to more than a de minimis amount of other taxes, duties or
other governmental changes.
"Time of Delivery" means 10:00 a.m. Eastern Standard Time, on the third
Business Day (unless postponed in accordance with the provisions of Section 9
of the Underwriting Agreement) following either (i) with respect to the Firm
Securities or Common Securities, the date of execution of the Underwriting
Agreement, or such other time not later than ten Business Days after such
dates as shall be agreed upon by the Underwriters, the Issuer Trust and the
Company, or (ii) with respect to the Option Securities, the Option Closing
Date.
"Trust Agreement" means this Amended and Restated Trust Agreement, as
the same may be modified, amended or supplemented in accordance with the
applicable provisions hereof, including (i) all Exhibits hereto, and (ii) for
all purposes of this Amended and Restated Trust Agreement any such
modification, amendment or supplement, the provisions of the Trust Indenture
Act that are deemed to be a part of and govern this Amended and Restated
Trust Agreement and any modification, amendment or supplement, respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939 or any
successor statute, in each case as amended from time to time.
"Trust Property" means (a) the Junior Subordinated Debentures, (b) any
cash on deposit in, or owing to, the Payment
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Account, and (c) all proceeds and rights in respect of the foregoing any
other property and assets for the time being held or deemed to be held by the
Property Trustee pursuant to the trusts of this Trust Agreement.
"Trust Securities Certificate" means any one of the Common Securities
Certificates or the Preferred Securities Certificates.
"Trust Security" means any one of the Common Securities or the
Preferred Securities.
"Underwriter" has the meaning specified in the Underwriting Agreement.
"Underwriting Agreement" means the Underwriting Agreement, dated as of
January __, 1997, among the Issuer Trust, the Depositor and the Underwriter,
as the same may be amended from time to time.
ARTICLE II
CONTINUATION OF THE ISSUER TRUST
SECTION 2.1. Name.
The Issuer Trust continued hereby shall be known as "JeffBanks Capital
Trust I", as such name may be modified from time to time by the
Administrators following written notice to the Holders of Trust Securities
and the other Issuer Trustees, in which name the Administrators and the
Issuer Trustees may engage in the transactions contemplated hereby, make and
execute contracts and other instruments on behalf of the Issuer Trust and xxx
and be sued.
SECTION 2.2. Office of the Delaware Trustee; Principal Place of
Business.
The address of the Delaware Trustee in the State of Delaware is Bankers
Trust (Delaware), 0000 Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000,
Attention: ________________, or such other address in the State of Delaware
as the Delaware Trustee may designate by written notice to the Holders and
the Depositor. The principal executive office of the Issuer Trust is in care
of JeffBanks, Inc., 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000,
Attention: Office of the Secretary.
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SECTION 2.3. Initial Contribution of Trust Property, Organizational
Expenses.
The Property Trustee acknowledges receipt in trust from the Depositor
in connection with this Trust Agreement of the sum of $10, which constitutes
the initial Trust Property. The Depositor shall pay all organizational
expenses of the Issuer Trust as they arise or shall, upon request of any
Issuer Trustee, promptly reimburse such Issuer Trustee for any such expenses
paid by such Issuer Trustee. The Depositor shall make no claim upon the
Trust Property for the payment of such expenses.
SECTION 2.4. Issuance of the Preferred Securities.
On January __, 1997, the Depositor, both on its own behalf and on
behalf of the Issuer Trust pursuant to the Original Trust Agreement executed
and delivered the Underwriting Agreement. Contemporaneously with the
execution and delivery of this Trust Agreement, an Administrator, on behalf
of the Issuer Trust, shall manually execute in accordance with Section 5.3
and the Property Trustee shall authenticate in accordance with Section 5.4
and deliver to the Underwriter, Firm Securities Certificates, registered in
the names requested by the Underwriter, in an aggregate amount of 880,000
Firm Securities having an aggregate Liquidation Amount of $22,000,000,
against receipt of the aggregate purchase price of such Preferred Securities
of $22,000,000, by the Property Trustee. At the option of the Underwriter,
within 30 days of the date of the Prospectus, and solely for the purpose of
covering an over- allotment, if any, an Administrator, on behalf of the
Issuer Trust, shall manually execute in accordance with Section 5.3 and the
Property Trustee shall authenticate in accordance with Section 5.4 and
deliver to the Underwriter, Option Securities Certificates, registered in the
names requested by the Underwriter, up to 132,000 Option Securities having an
aggregate Liquidation Amount of $3,300,000, against receipt of the aggregate
purchase price of such Option Securities of $3,300,000, by the Property
Trustee.
SECTION 2.5. Issuance of the Common Securities; Subscription and
Purchase of Junior Subordinated Debentures.
Contemporaneously with the execution and delivery of this Trust
Agreement, an Administrator, on behalf of the Issuer Trust, shall execute or
cause to be executed in accordance with Section 5.2 and the Property Trustee
shall deliver to the Depositor Common Securities Certificates, registered in
the name of the Depositor, in an aggregate amount of 27,217 Common Securities
having an aggregate Liquidation Amount of $680,425 against receipt of the
aggregate purchase price of such Common
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Securities of $680,425 by the Property Trustee. In the event of any exercise
of an over-allotment option requiring issuance of additional Preferred
Securities Certificates, as described in Section 2.4 above, a proportionate
number of additional Common Securities Certificates, with corresponding
aggregate Liquidation Amount, shall be delivered to the Depositor.
Contemporaneously therewith, an Administrator, on behalf of the Issuer Trust,
shall subscribe for and purchase from the Depositor the Junior Subordinated
Debentures, registered in the name of the Issuer Trust and having an
aggregate principal amount equal to $22,680,425, plus, in the event of any
exercise of the over-allotment option (i) a corresponding additional number
of Junior Subordinated Debentures not exceeding an aggregate principal amount
of $3,300,000 and (ii) a corresponding number of Junior Subordinated
Debentures not exceeding an aggregate principal amount equal to the aggregate
Liquidation Amount of Common Securities issued pursuant to such exercise of
an over-allotment option; and, in satisfaction of the purchase price for such
Junior Subordinated Debentures, the Property Trustee, on behalf of the Issuer
Trust, shall deliver to the Depositor the sum of $22,680,425, plus any
corresponding over-allotment option amount (being the sum of the amounts
delivered to the Property Trustee pursuant to (i) the second sentence of
Section 2.4, and (ii) the first and second sentences of this Section 2.5) and
receive on behalf of the Issuer Trust the Junior Subordinated Debentures.
SECTION 2.6. Declaration of Trust.
The exclusive purposes and functions of the Issuer Trust are to (a)
issue and sell Trust Securities and use the proceeds from such sale to
acquire the Junior Subordinated Debentures, and (b) engage in only those
other activities necessary, convenient or incidental thereto. The Depositor
hereby appoints the Issuer Trustees as trustees of the Issuer Trust, to have
all the rights, powers and duties to the extent set forth herein, and the
Issuer Trustees hereby accept such appointment. The Property Trustee hereby
declares that it will hold the Trust Property in trust upon and subject to
the conditions set forth herein for the benefit of the Issuer Trust and the
Holders. The Depositor hereby appoints the Administrators, with such
Administrators having all rights, powers and duties set forth herein with
respect to accomplishing the purposes of the Issuer Trust, and the
Administrators hereby accept such appointment, provided, however, that it is
the intent of the parties hereto that such Administrators shall not be
trustees or fiduciaries with respect to the Issuer Trust and this Agreement
shall be construed in a manner consistent with such intent. The Property
Trustee shall have the right and power to perform those duties assigned to
the Administrators. 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
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Property Trustee or the Administrators set forth herein. The Delaware
Trustee shall be one of the trustees of the Issuer Trust for the sole and
limited purpose of fulfilling the requirements of Section 3807 of the
Delaware Business Trust Act and for taking such actions as are required to be
taken by a Delaware trustee under the Delaware Business Trust Act.
SECTION 2.7. Authorization to Enter into Certain Transactions.
(a) The Issuer Trustees and the Administrators shall conduct the
affairs of the Issuer Trust in accordance with the terms of this Trust
Agreement. Subject to the limitations set forth in paragraph (b) of this
Section and in accordance with the following provisions (i), (ii) and (iii),
the Issuer Trustees and the Administrators shall act as follows:
(i) Each Administrator shall:
(A) comply with the Underwriting Agreement regarding the issuance
and sale of the Trust Securities;
(B) assist in compliance with the Securities Act, applicable
state securities or blue sky laws, and the Trust Indenture Act;
(C) assist in the listing of the Preferred Securities upon such
securities exchange or exchanges as shall be determined by the Depositor,
with the registration of the Preferred Securities under the Exchange Act, if
required, and the preparation and filing of all periodic and other reports
and other documents pursuant to the foregoing;
(D) execute and deliver an application for a taxpayer
identification number for the Issuer Trust; and
(E) take any action incidental to the foregoing as necessary or
advisable to give effect to the terms of this Trust Agreement.
(ii) The Property Trustee shall have the power and authority to act on
behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
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(C) the receipt and collection of interest, principal and any
other payments made in respect of the Junior Subordinated Debentures in the
Payment Account;
(D) the distribution of amounts owed to the Holders in respect of
the Trust Securities;
(E) the exercise of all of the rights, powers and privileges of a
holder of the Junior Subordinated Debentures;
(F) the sending of notices of default and other information
regarding the Trust Securities and the Junior Subordinated Debentures to the
Holders in accordance with this Trust Agreement;
(G) the distribution of the Trust Property in accordance with the
terms of this Trust Agreement;
(H) to the extent provided in this Trust Agreement, the winding
up of the affairs of and liquidation of the Issuer Trust and the preparation,
execution and filing of the certificate of cancellation with the Secretary of
State of the State of Delaware;
(I) after an Event of Default (other than under paragraph (b),
(c), (d), or (f) of the definition of such term if such Event of Default is
by or with respect to the Property Trustee), comply with the provisions of
this Trust Agreement and take any action to give effect to the terms of this
Trust Agreement and protect and conserve the Trust Property for the benefit
of the Holders (without consideration of the effect of any such action on any
particular Holder); and
provided, however, that nothing in this Section 2.7(a)(ii) shall require the
Property Trustee to take any action that is not otherwise required in this
Trust Agreement.
(iii) The Property Trustee shall comply with the listing requirements
of the Preferred Securities upon such securities exchange or exchanges as
shall be determined by the Depositor, the registration of the Preferred
Securities under the Exchange Act, if required, and the preparation and
filing of all periodic and other reports and other documents pursuant to the
foregoing; and
(b) So long as this Trust Agreement remains in effect, the Issuer
Trust (or the Issuer Trustees or Administrators acting on behalf of the
Issuer Trust) shall not undertake any business, activities or transaction
except as expressly provided herein or contemplated hereby. In particular,
neither the Issuer Trustees nor the Administrators shall (i) acquire any
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investments or engage in any activities not authorized by this Trust
Agreement, (ii) sell, assign, transfer, exchange, mortgage, pledge, set-off
or otherwise dispose of any of the Trust Property or interests therein,
including to Holders, except as expressly provided herein, (iii) take any
action that would reasonably be expected to cause the Issuer Trust to become
taxable as a corporation for United States Federal income tax purposes, (iv)
incur any indebtedness for borrowed money or issue any other debt, or (v)
take or consent to any action that would result in the placement of a Lien on
any of the Trust Property. The Property Trustee shall defend all claims and
demands of all Persons at any time claiming any Lien on any of the Trust
Property adverse to the interest of the Issuer Trust or the Holders in their
capacity as Holders.
(c) In connection with the issue and sale of the Preferred Securities,
the Depositor shall have the right and responsibility to assist the Issuer
Trust with respect to, or effect on behalf of the Issuer Trust, the following
(and any actions taken by the Depositor in furtherance of the following prior
to the date of this Trust Agreement are hereby ratified and confirmed in all
respects):
(i) the preparation by the Issuer Trust of a registration
statement, and a prospectus in relation to the Preferred Securities,
including any amendments thereto and the taking of any action necessary or
desirable to sell the Preferred Securities in a transaction or a series of
transactions not exempt from the registration requirements of the Securities
Act;
(ii) the determination of the States in which to take appropriate
action to qualify or register for sale all or part of the Preferred
Securities and the determination of any and all such acts, other than actions
that must be taken by or on behalf of the Issuer Trust, and the advice to the
Issuer Trustees of actions they must take on behalf of the Issuer Trust, and
the preparation for execution and filing of any documents to be executed and
filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor
deems necessary or advisable in order to comply with the applicable laws of
any such States in connection with the sale of the Preferred Securities;
(iii) the negotiation of the terms of, and the execution and
delivery of, the Underwriting Agreement providing for the sale of the
Preferred Securities; and
(iv) the taking of any other actions necessary or desirable to
carry out any of the foregoing activities.
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(d) Notwithstanding anything herein to the contrary, the
Administrators and the Property Trustee are authorized and directed to
conduct the affairs of the Issuer Trust and to operate the Issuer Trust so
that the Issuer Trust will not be deemed to be an "investment company"
required to be registered under the Investment Company Act, and will not be
taxable as a corporation for the United States Federal income tax purposes
and so that the Junior Subordinated Debentures will be treated as
indebtedness of the Depositor for United States income tax purposes. In this
connection, the Property Trustee and the Holders of Common Securities are
authorized to take any action, not inconsistent with applicable law, the
Certificate of Trust or this Trust Agreement, that the Property Trustee and
Holders of Common Securities determine in their discretion to be necessary or
desirable for such purposes, as long as such action does not adversely affect
in any material respect the interests of the holders of the Outstanding
Preferred Securities. In no event shall the Administrators or the Issuer
Trustees be liable to the Issuer Trust or the Holders for any failure to
comply with this section that results from a change in law or regulations or
in the interpretation thereof.
SECTION 2.8. Assets of Trust.
The assets of the Issuer Trust shall consist solely of the Trust
Property.
SECTION 2.9. Title to Trust Property.
Legal title to all Trust Property shall be vested at all times in the
Property Trustee (in its capacity as such) and shall be held and administered
by the Property Trustee for the benefit of the Issuer Trust and the Holders
in accordance with this Trust Agreement.
ARTICLE III
PAYMENT ACCOUNT
SECTION 3.1. Payment Account.
(a) On or prior to the Closing Date, the Property Trustee shall
establish the Payment Account. The Property Trustee and its agents shall
have exclusive control and sole right of withdrawal with respect to the
Payment Account for the purpose of making deposits in and withdrawals from
the Payment Account in accordance with this Trust Agreement. All monies and
other property deposited or held from time to time in the Payment
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Account shall be held by the Property Trustee in the Payment Account for the
exclusive benefit of the Holders and for distribution as herein provided,
including (and subject to) any priority of payments provided for herein.
(b) The Property Trustee shall deposit in the Payment Account,
promptly upon receipt, all payments of principal of or interest on, and any
other payments or proceeds with respect to, the Junior Subordinated
Debentures. Amounts held in the Payment Account shall not be invested by the
Property Trustee pending distribution thereof.
ARTICLE IV
DISTRIBUTIONS; REDEMPTION
SECTION 4.1. Distributions.
(a) The Trust Securities represent undivided beneficial interests in
the Trust Property, and Distributions (including of Additional Amounts) will
be made on the Trust Securities at the rate and on the dates that payments of
interest (including of Additional Interest, as defined in the Indenture) are
made on the Junior Subordinated Debentures. Accordingly:
(i) Distributions on the Trust Securities shall be cumulative and
will accumulate whether or not there are funds of the Issuer Trust
available for the payment of Distributions. Distributions shall
accumulate from _________ , 1997, and, except in the event (and to
the extent) that the Depositor exercises its right to defer the payment
of interest on the Debentures pursuant to the Indenture, shall be
payable quarterly in arrears on the _____ day of ________ __, ________
__, ________ __, and _______ __ of each year, commencing on ______ __,
1997. If any date on which a Distribution is otherwise payable on the
Trust Securities is not a Business Day, then the payment of such
Distribution shall be made on the next succeeding day that is a
Business Day (without any interest or other payment in respect of any
such delay), with the same force and effect as if made on the date on
which such payment was originally payable (each date on which
distributions are payable in accordance with this Section 4.1(a), a
"Distribution Date").
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(ii) The Trust Securities shall be entitled to Distributions
payable at a rate of ___ % per annum of the Liquidation Amount of the
Trust Securities. The amount of Distributions payable for any period
less than a full Distribution period shall be computed on the basis of
a 360-day year of twelve 30-day months and the actual number of days
elapsed in a partial month in a period. Distributions payable for each
full Distribution period will be computed by dividing the rate per
annum by two. The amount of Distributions payable for any period shall
include any Additional Amounts in respect of such period.
(iii) So long as no Debenture Event of Default has occurred and
is continuing, the Depositor has the right under the Indenture to defer
the payment of interest on the Junior Subordinated Debentures at any
time and from time to time for a period not exceeding 20 consecutive
quarterly periods (an "Extension Period"), provided that no Extension
Period may extend beyond ________ __, 2027. As a consequence of any
such deferral, quarterly Distributions on the Trust Securities by the
Trust will also be deferred (and the amount of Distributions to which
Holders of the Trust Securities are entitled will accumulate additional
Distributions thereon at the rate per annum of ____% per annum,
compounded quarterly) from the relevant payment date for such
Distributions, computed on the basis of a 360- day year of twelve
30-day months and the actual days elapsed in a partial month in such
period. Additional Distributions payable for each full Distribution
period will be computed by dividing the rate per annum by two (2). The
term "Distributions" as used in Section 4.1 shall include any such
additional Distributions provided pursuant to this Section 4.1(a)(iii).
(iv) Distributions on the Trust Securities shall be made by the
Property Trustee from the Payment Account and shall be payable on each
Distribution Date only to the extent that the Issuer Trust has funds
then on hand and available in the Payment Account for the payment of
such Distributions.
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(b) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders thereof as they appear on
the Securities Register for the Trust Securities at the close of business on
the relevant record date, which shall be at the close of business on the ____
day of _______ __, _______ __, _______ __, _______ __, (whether or not a
Business Day).
SECTION 4.2. Redemption.
(a) On each Junior Subordinated Debenture Redemption Date and on the
stated maturity of the Junior Subordinated Debentures, the Issuer Trust will
be required to redeem a Like Amount of Trust Securities at the Redemption
Price.
(b) Notice of redemption shall be given by the Property Trustee by
first-class mail, postage prepaid, mailed not less than 30 nor more than 60
days prior to the Redemption Date to each Holder of Trust Securities to be
redeemed, at such Holder's address appearing in the Security Register. All
notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price, or if the Redemption Price cannot be
calculated prior to the time the notice is required to be sent, the estimate
of the Redemption Price provided pursuant to the Indenture together with a
statement that it is an estimate and that the actual Redemption Price will be
calculated on the third Business Day prior to the Redemption Date (and if an
estimate is provided, a further notice shall be sent of the actual Redemption
Price on the date, or as soon as practicable thereafter, that notice of such
actual Redemption Price is received pursuant to the Indenture);
(iii) the CUSIP number or CUSIP numbers of the Preferred
Securities affected;
(iv) if less than all the Outstanding Trust Securities are to be
redeemed, the identification and the total Liquidation Amount of the
particular Trust Securities to be redeemed;
(v) that on the Redemption Date the Redemption Price will become
due and payable upon each such Trust Security to be redeemed and that
Distributions thereon will cease to accumulate on and after said date, except
as provided in Section 4.2(d) below; and
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(vi) the place or places where Trust Securities are to be
surrendered for the payment of the Redemption Price.
The Issuer Trust in issuing the Trust Securities shall use "CUSIP"
numbers, and the Property Trustee shall indicate the "CUSIP" numbers of the
Trust Securities in notices of redemption and related materials as a
convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as
printed on the Trust Securities or as contained in any notice of redemption
and related material.
(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price with the applicable proceeds from the
contemporaneous redemption of Junior Subordinated Debentures. Redemptions of
the Trust Securities shall be made and the Redemption Price shall be payable
on each Redemption Date only to the extent that the Issuer Trust has funds
then on hand and available in the Payment Account for the payment of such
Redemption Price.
(d) If the Property Trustee gives a notice of redemption in respect of
any Preferred Securities, then, by 12:00 noon, New York City time, on the
Redemption Date, subject to Section 4.2(c), the Property Trustee will, with
respect to Preferred Securities held in global form, irrevocably deposit with
the Clearing Agency for such Preferred Securities, to the extent available
therefor, funds sufficient to pay the applicable Redemption Price and will
give such Clearing Agency irrevocable instructions and authority to pay the
Redemption Price to the Holders of the Preferred Securities. With respect to
Preferred Securities that are not held in global form, the Property Trustee,
subject to Section 4.2(c), will irrevocably deposit with the Paying Agent, to
the extent available therefor, funds sufficient to pay the applicable
Redemption Price and will give the Paying Agent irrevocable instructions and
authority to pay the Redemption Price to the Holder of the Preferred
Securities upon surrender of their Preferred Securities Certificates.
Notwithstanding the foregoing, Distributions payable on or prior to the
Redemption Date for any Trust Securities called for redemption shall be
payable to the Holders of such Trust Securities as they appear on the
Register for the Trust Securities on the relevant record dates for the
related Distribution Dates. If notice of redemption shall have been given
and funds deposited as required, then, upon the date of such deposit, all
rights of Holders holding Trust Securities so called for redemption will
cease, except the right of such Holders to receive the Redemption Price and
any Distribution payable in respect of the Trust Securities on or prior to
the Redemption Date, but without interest, and such Securities will cease to
be Outstanding. In the event that any date on which
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any applicable Redemption Price is payable is not a Business Day, then
payment of the applicable 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), except that, if such Business
Day falls in the next calendar year, such payment will be made on the
immediately preceding Business Day, in each case, with the same force and
effect as if made on such date. In the event that payment of the Redemption
Price in respect of any Trust Securities called for redemption is improperly
withheld or refused and not paid either by the Issuer Trust or by the
Depositor pursuant to the Guarantee Agreement, Distributions on such Trust
Securities will continue to accumulate, as set forth in Section 4.1, from the
Redemption Date originally established by the Issuer Trust for such Trust
Securities to the date such applicable Redemption Price is actually paid, in
which case the actual payment date will be the date fixed for redemption for
purposes of calculating the applicable Redemption Price.
(e) Subject to Section 4.3(a), if less than all the Outstanding Trust
Securities are to be redeemed on a Redemption Date, then the aggregate
Liquidation Amount of such Trust Securities to be redeemed shall be allocated
pro rata to the Common Securities and the Preferred Securities based on the
relative Liquidation Amounts of such classes. The particular Preferred
Securities to be redeemed shall be selected on a pro rata basis based on
their respective Liquidation Amounts not more than 60 days prior to the
Redemption Date by the Property Trustee from the Outstanding Preferred
Securities not previously called for redemption, or if the Preferred
Securities are then held in the form of a Global Preferred Security in
accordance with the customary procedures for the Clearing Agency, provided,
however, that with respect to Holders that would be required to hold less
than 100 but more than zero Preferred Securities as a result of such pro rata
redemption, the Property Trustee shall redeem each such Holder to either 100
Preferred Securities or zero Preferred Securities and shall use such method
(including, without limitation, by lot) as the Property Trustee shall deem
fair and appropriate. The Property Trustee shall promptly notify the
Security Registrar in writing of the Preferred Securities selected for
redemption and, in the case of any Preferred Securities selected for partial
redemption, the Liquidation Amount thereof to be redeemed. For all purposes
of this Trust Agreement, unless the context otherwise requires, all
provisions relating to the redemption of Preferred Securities shall relate,
in the case of any Preferred Securities redeemed or to be redeemed only in
part, to the portion of the aggregate Liquidation Amount of Preferred
Securities that has been or is to be redeemed.
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SECTION 4.3. Subordination of Common Securities.
(a) Payment of Distributions (including Additional Amounts, if
applicable) on, the Redemption Price of, and the Liquidation Distribution in
respect of, the Trust Securities, as applicable, shall be made, subject to
Section 4.2(e), pro rata among the Common Securities and the Preferred
Securities based on the Liquidation Amount of such Trust Securities;
provided, however, that if on any Distribution Date or Redemption Date any
Event of Default resulting from a Debenture Event of Default in Section
5.1(1) or 5.1(2) of the Indenture shall have occurred and be continuing, no
payment of any Distribution (including any Additional Amounts) on, Redemption
Price of, or Liquidation Distribution in respect of, any Common Security, and
no other payment on account of the redemption, liquidation or other
acquisition of Common Securities, shall be made unless payment in full in
cash of all accumulated and unpaid Distributions (including any Additional
Amounts) on all Outstanding Preferred Securities for all Distribution periods
terminating on or prior thereto, or, in the case of payment of the Redemption
Price, the full amount of such Redemption Price on all Outstanding Preferred
Securities then called for redemption, or in the case of payment of the
Liquidation Distribution the full amount of such Liquidation Distribution on
all Outstanding Preferred Securities, shall have been made or provided for,
and all funds immediately available to the Property Trustee shall first be
applied to the payment in full in cash of all Distributions (including any
Additional Amounts) on, or the Redemption Price of, Preferred Securities then
due and payable. The existence of an Event of Default does not entitle the
Holders of Preferred Securities to accelerate the maturity thereof.
(b) In the case of the occurrence of any Event of Default resulting
from any Debenture Event of Default, the Holder of the Common Securities
shall have no right to act with respect to any such Event of Default under
this Trust Agreement until the effects of all such Events of Default with
respect to the Preferred Securities have been cured, waived or otherwise
eliminated. Until all such Events of Default under this Trust Agreement with
respect to the Preferred Securities have been so cured, waived or otherwise
eliminated, the Property Trustee shall act solely on behalf of the Holders of
the Preferred Securities and not on behalf of the Holder of the Common
Securities, and only the Holders of the Preferred Securities will have the
right to direct the Property Trustee to act on their behalf.
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SECTION 4.4. Payment Procedures.
Payments of Distributions (including any Additional Amounts) in respect
of the Preferred Securities shall be made by check mailed to the address of
the Person entitled thereto as such address shall appear on the Securities
Register or, if the Preferred Securities are held by a Clearing Agency, such
Distributions shall be made to the Clearing Agency in immediately available
funds, which will credit the relevant accounts on the applicable Distribution
Dates. Payments of Distributions to Holders of $1,000,000 or more in
aggregate Liquidation Amount of Preferred Securities may be made by wire
transfer of immediately available funds upon written request of such Holder
of Preferred Securities to the Securities Registrar not later than 15
calendar days prior to the date on which the Distribution is payable.
Payments in respect of the Common Securities shall be made in such manner as
shall be mutually agreed between the Property Trustee and the Holder of the
Common Securities.
SECTION 4.5. Tax Returns and Reports.
The Administrators shall prepare (or cause to be prepared), at the
Depositor's expense, and file all United States Federal, state and local tax
and information returns and reports required to be filed by or in respect of
the Issuer Trust. In this regard, the Administrators shall (a) prepare and
file (or cause to be prepared and filed) all Internal Revenue Service forms
required to be filed in respect of the Issuer Trust in each taxable year of
the Issuer Trust and (b) prepare and furnish (or cause to be prepared and
furnished) to each Holder all Internal Revenue Service forms required to be
provided by the Issuer Trust. The Administrators shall provide the Depositor
and the Property Trustee with a copy of all such returns and reports promptly
after such filing or furnishing. The Issuer Trustees shall comply with
United States Federal withholding and backup withholding tax laws and
information reporting requirements with respect to any payments to Holders
under the Trust Securities.
On or before December 15 of each year during which any Preferred
Securities are outstanding, the Administrators shall furnish to the Paying
Agent such information as may be reasonably requested by the Property Trustee
in order that the Property Trustee may prepare the information which it is
required to report for such year on Internal Revenue Service Forms 1096 and
1099 pursuant to Section 6049 of the Internal Revenue Code of 1986, as
amended. Such information shall include the amount of original issue
discount includible in income for each outstanding Preferred Security during
such year.
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SECTION 4.6. Payment of Taxes; Duties, Etc. of the Issuer Trust.
Upon receipt under the Junior Subordinated Debentures of Additional
Sums, the Property Trustee shall promptly pay any taxes, duties or
governmental charges of whatsoever nature (other than withholding taxes)
imposed on the Issuer Trust by the United States or any other taxing
authority.
SECTION 4.7. Payments under Indenture or Pursuant to Direct Actions.
Any amount payable hereunder to any Holder of Preferred Securities
shall be reduced by the amount of any corresponding payment such Holder has
directly received pursuant to Section 5.8 of the Indenture or Section 5.13 of
this Trust Agreement.
SECTION 4.8. Liability of the Holder of Common Securities.
The Holder of Common Securities shall be liable for the debts and
obligations of the Issuer Trust as set forth in Section 6.7 of the Indenture
regarding allocation of expenses.
ARTICLE V
TRUST SECURITIES CERTIFICATES
SECTION 5.1. Initial Ownership.
Upon the formation of the Issuer Trust and the contribution by the
Depositor pursuant to Section 2.3 and until the issuance of the Trust
Securities, and at any time during which no Trust Securities are outstanding,
the Depositor shall be the sole beneficial owner of the Issuer Trust.
SECTION 5.2. The Trust Securities Certificates.
(a) The Trust Securities Certificates shall be executed on behalf of
the Issuer Trust by manual signature of at least one Administrator except as
provided in Section 5.3. Trust Securities Certificates bearing the manual
signatures of individuals who were, at the time when such signatures shall
have been affixed, authorized to sign on behalf of the Issuer Trust, shall be
validly issued and entitled to the benefits of this Trust Agreement,
notwithstanding that such individuals or any of them shall have ceased to be
so authorized prior to the delivery of such Trust Securities Certificates or
did not hold such offices at the date of delivery of such Trust Securities
Certificates. A transferee of a Trust Securities Certificate
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shall become a Holder, and shall be entitled to the rights and subject to the
obligations of a Holder hereunder, upon due registration of such Trust
Securities Certificate in such transferee's name pursuant to Section 5.5.
(b) Upon their original issuance, Preferred Securities Certificates
shall be issued in the form of one or more fully registered Global Preferred
Securities Certificates which will be deposited with or on behalf of the
Depositary and registered in the name of the Depositary's nominee. Unless
and until it is exchangeable in whole or in part for the Preferred Securities
in definitive form, a global security may not be transferred except 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 or by the
Depositary or any such nominee to a successor of such Depositary or a nominee
of such successor.
(c) A single Common Securities Certificate representing the Common
Securities shall be issued to the Depositor in the form of a definitive
Common Securities Certificate.
SECTION 5.3. Execution and Delivery of Trust Securities Certificates.
At the Time of Delivery, the Administrators shall cause Trust
Securities Certificates, in an aggregate Liquidation Amount as provided in
Sections 2.4 and 2.5, to be executed on behalf of the Issuer Trust and
delivered to the Property Trustee and upon such delivery the Property Trustee
shall authenticate such Trust Securities Certificates and deliver such Trust
Securities Certificates upon the written order of the Depositor, executed by
two authorized officers thereof, without further corporate action by the
Depositor, in authorized denominations.
SECTION 5.4. Global Preferred Security.
(a) Any Global Preferred Security issued under this Trust Agreement
shall be registered in the name of the nominee of the Clearing Agency and
delivered to such custodian therefor, and such Global Preferred Security
shall constitute a single Preferred Security for all purposes of this Trust
Agreement.
(b) Notwithstanding any other provision in this Trust Agreement, a
Global Preferred Security may not be exchanged in whole or in part for
Preferred Securities registered, and no transfer of the Global Preferred
Security in whole or in part may be registered, in the name of any Person
other than the Clearing Agency for such Global Preferred Security, or its
nominee thereof unless (i) such Clearing Agency advises the Property Trustee
in writing that such Clearing Agency is no
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longer willing or able to properly discharge its responsibilities as Clearing
Agency with respect to such Global Preferred Security, and the Depositor is
unable to locate a qualified successor, (ii) the Issuer Trust at its option
advises the Depositary in writing that it elects to terminate the book- entry
system through the Clearing Agency, or (iii) there shall have occurred and be
continuing an Event of Default.
(c) If a Preferred Security is to be exchanged in whole or in part for
a beneficial interest in a Global Preferred Security, then either (i) such
Global Preferred Security shall be so surrendered for exchange or
cancellation as provided in this Article V or (ii) the Liquidation Amount
thereof shall be reduced, subject to Section 5.2, or increased by an amount
equal to the portion thereof to be so exchanged or cancelled, or equal to the
Liquidation Amount of such other Preferred Security to be so exchanged for a
beneficial interest therein, as the case may be, by means of an appropriate
adjustment made on the records of the Security Registrar, whereupon the
Property Trustee, in accordance with the Applicable Procedures, shall
instruct the Clearing Agency or its authorized representative to make a
corresponding adjustment to its records. Upon any such surrender or
adjustment of a Global Preferred Security by the Clearing Agency, accompanied
by registration instructions, the Property Trustee shall, subject to Section
5.4(b) and as otherwise provided in this Article V, authenticate and deliver
any Preferred Securities issuable in exchange for such Global Preferred
Security (or any portion thereof) in accordance with the instructions of the
Clearing Agency. The Property Trustee shall not be liable for any delay in
delivery of such instructions and may conclusively rely on, and shall be
fully protected in relying on, such instructions.
(d) Every Preferred Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a Global
Preferred Security or any portion thereof, whether pursuant to this Article V
or Article IV or otherwise, shall be authenticated and delivered in the form
of, and shall be, a Global Preferred Security, unless such Global Preferred
Security is registered in the name of a Person other than the Clearing Agency
for such Global Preferred Security or a nominee thereof.
(e) The Clearing Agency or its nominee, as the registered owner of a
Global Preferred Security, shall be considered the Holder of the Preferred
Securities represented by such Global Preferred Security for all purposes
under this Trust Agreement and the Preferred Securities, and owners of
beneficial interests in such Global Preferred Security shall hold such
interests pursuant to the Applicable Procedures and, except as otherwise
provided herein, shall not be entitled to receive physical delivery of any
such Preferred Securities in definitive form and
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shall not be considered the Holders thereof under this Trust Agreement.
Accordingly, any such owner's beneficial interest in the Global Preferred
Security shall be shown only on, and the transfer of such interest shall be
effected only through, records maintained by the Clearing Agency or its
nominee. Neither the Property Trustee nor the Securities Registrar shall
have any liability in respect of any transfers effected by the Clearing
Agency.
(f) The rights of owners of beneficial interests in a Global Preferred
Security shall be exercised only through the Clearing Agency and shall be
limited to those established by law and agreements between such owners and
the Clearing Agency.
SECTION 5.5. Registration of Transfer and Exchange Generally; Certain
Transfers and Exchanges; Preferred Securities Certificates.
(a) The Property Trustee shall keep or cause to be kept at its
Corporate Trust Office a register or registers for the purpose of registering
Preferred Securities Certificates and transfers and exchanges of Preferred
Securities Certificates in which the registrar and transfer agent with
respect to the Preferred Securities (the "Securities Registrar"), subject to
such reasonable regulations as it may prescribe, shall provide for the
registration of Preferred Securities Certificates and Common Securities
Certificates (subject to Section 5.11 in the case of Common Securities
Certificates) and registration of transfers and exchanges of Preferred
Securities Certificates as herein provided. Such register is herein
sometimes referred to as the "Securities Register." The Property Trustee is
hereby appointed "Securities Registrar" for the purpose of registering
Preferred Securities and transfers of Preferred Securities as herein
provided.
Upon surrender for registration of transfer of any Preferred Security
at the offices or agencies of the Property Trustee designated for that
purpose the Depositor shall execute, and authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Preferred
Securities of the same series of any authorized denominations of like tenor
and aggregate principal amount and bearing such legends as may be required by
this Trust Agreement.
At the option of the Holder, Preferred Securities may be exchanged for
other Preferred Securities of any authorized denominations, of like tenor and
aggregate Liquidation Amount and bearing such legends as may be required by
this Trust Agreement, upon surrender of the Preferred Securities to be
exchanged as such office or agency. Whenever any securities are so
surrendered for exchange, the Property Trustee shall execute
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and authenticate and deliver the Preferred Securities that the Holder making
the exchange is entitled to receive.
All Preferred Securities issued upon any transfer or exchange of
Preferred Securities shall be the valid obligations of the Issuer Trust,
evidencing the same debt, and entitled to the same benefits under this Trust
Agreement, as the Preferred Securities surrendered upon such transfer or
exchange.
Every Preferred Security presented or surrendered for transfer or
exchange shall (if so required by the Property Trustee) be duly endorsed, or
be accompanied by a written instrument of transfer in form satisfactory to
the Property Trustee and the Securities Registrar, duly executed by the
Holder thereof or such Holder's attorney duly authorized in writing.
No service charge shall be made to a Holder for any transfer or
exchange of Preferred Securities, but the Property Trustee may require
payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection with any transfer or exchange of Preferred
Securities.
Neither the Issuer Trust nor the Property Trustee shall be required,
pursuant to the provisions of this Section, (i) to issue, register the
transfer of or exchange any Preferred Security during a period beginning at
the opening of business 15 days before the day of selection for redemption of
Preferred Securities pursuant to Article IV and ending at the close of
business on the day of mailing of the notice of redemption, or (ii) to
register the transfer of or exchange any Preferred Security so selected for
redemption in whole or in part, except, in the case of any such Preferred
Security to be redeemed in part, any portion thereof not to be redeemed.
(b) Certain Transfers and Exchanges. Trust Securities may only be
transferred, in whole or in part, in accordance with the terms and conditions
set forth in this Trust Agreement. Any transfer or purported transfer of any
Trust Security not made in accordance with this Trust Agreement shall be null
and void.
(i) Non Global Security to Non Global Security. A Trust Security
that is not a Global Preferred Security may be transferred, in whole or
in part, to a Person who takes delivery in the form of another Trust
Security that is not a Global Security as provided in Section 5.5(a).
(ii) Free Transferability. Subject to this Section 5.5,
Preferred Securities shall be freely transferable.
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(iii) Exchanges Between Global Preferred Security and Non-Global
Trust Security. A beneficial interest in a Global Preferred Security
may be exchanged for a Trust Security that is not a Global Preferred
Security as provided in Section 5.4.
SECTION 5.6. Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates.
If (a) any mutilated Trust Securities Certificate shall be surrendered
to the Securities Registrar, or if the Securities Registrar shall receive
evidence to its satisfaction of the destruction, loss or theft of any Trust
Securities Certificate and (b) there shall be delivered to the Securities
Registrar and the Administrators such security or indemnity as may be
required by them to save each of them harmless, then in the absence of notice
that such Trust Securities Certificate shall have been acquired by a bona
fide purchaser, the Administrators, or any one of them, on behalf of the
Issuer Trust shall execute and make available for delivery, and the Property
Trustee shall authenticate, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Trust Securities Certificate, a new Trust
Securities Certificate of like class, tenor and denomination. In connection
with the issuance of any new Trust Securities Certificate under this Section,
the Administrators or the Securities Registrar 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 Trust Securities Certificate
issued pursuant to this Section shall constitute conclusive evidence of an
undivided beneficial interest in the assets of the Issuer Trust corresponding
to that evidenced by the lost, stolen or destroyed Trust Certificate, as if
originally issued, whether or not the lost, stolen or destroyed Trust
Securities Certificate shall be found at any time.
SECTION 5.7. Persons Deemed Holders.
The Issuer Trustees or the Securities Registrar shall treat the Person
in whose name any Trust Securities are issued as the owner of such Trust
Securities for the purpose of receiving Distributions and for all other
purposes whatsoever, and none of the Issuer Trustees, the Administrators nor
the Securities Registrar shall be bound by any notice to the contrary.
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SECTION 5.8. Access to List of Holders' Names and Addresses.
Each Holder and each Owner shall be deemed to have agreed not to hold
the Depositor, the Property Trustee, or the Administrators accountable by
reason of the disclosure of its name and address, regardless of the source
from which such information was derived.
SECTION 5.9. Maintenance of Office or Agency.
The Property Trustee shall designate, with the consent of the
Administrators, which consent shall not be unreasonably withheld, an office
or offices or agency or agencies where Preferred Securities Certificates may
be surrendered for registration of transfer or exchange and where notices and
demands to or upon the Issuer Trustees in respect of the Trust Securities
Certificates may be served. The Property Trustee initially designates its
Corporate Trust Xxxxxx xx Xxxx Xxxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention:
Corporate Trust and Agency Group - Corporate Market Services, as its
corporate trust office for such purposes. The Property Trustee shall give
prompt written notice to the Depositor, the Administrators and to the Holders
of any change in the location of the Securities Register or any such office
or agency.
SECTION 5.10. Appointment of Paying Agent.
The Paying Agent shall make Distributions to Holders from the Payment
Account and shall report the amounts of such Distributions to the Property
Trustee and the Administrators. Any Paying Agent shall have the revocable
power to withdraw funds from the Payment Account solely for the purpose of
making the Distributions referred to above. The Property Trustee may revoke
such power and remove any Paying Agent in its sole discretion. The Paying
Agent shall initially be the Property Trustee. Any Person acting as Paying
Agent shall be permitted to resign as Paying Agent upon 30 days' written
notice to the Administrators, and the Property Trustee. In the event that
the Property Trustee shall no longer be the Paying Agent or a successor
Paying Agent shall resign or its authority to act be revoked, the Property
Trustee shall appoint a successor (which shall be a bank or trust company)
that is reasonably acceptable to the Administrators to act as Paying Agent.
Such successor Paying Agent or any additional Paying Agent appointed by the
Administrators shall execute and deliver to the Issuer Trustees an instrument
in which such successor Paying Agent or additional Paying Agent shall agree
with the Issuer Trustees that as Paying Agent, such successor Paying Agent or
additional Paying Agent will hold all sums, if any, held by it for payment to
the Holders in trust for the benefit of the Holders entitled thereto
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until such sums shall be paid to such Holders. The Paying Agent shall return
all unclaimed funds to the Property Trustee and upon removal of a Paying
Agent such Paying Agent shall also return all funds in its possession to the
Property Trustee. The provisions of Sections 8.1, 8.3 and 8.6 herein shall
apply to the Bank also in its role as Paying Agent, for so long as the Bank
shall act as Paying Agent and, to the extent applicable, to any other paying
agent appointed hereunder. Any reference in this Trust Agreement to the
Paying Agent shall include any co-paying agent chosen by the Property Trustee
unless the context requires otherwise.
SECTION 5.11. Ownership of Common Securities by Depositor.
At each Time of Delivery, the Depositor shall acquire and retain
beneficial and record ownership of the Common Securities except (i) in
connection with a consolidation or merger of the Depositor into another
corporation or any conveyance, transfer or lease by the Depositor of its
properties and assets substantially as an entirety to any Person, pursuant to
Section 8.1 of the Indenture, or (ii) to an Affiliate of the Depositor 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 shall be void. The
Administrators shall cause each Common Securities Certificate issued to the
Depositor to contain a legend stating "THIS CERTIFICATE IS NOT TRANSFERABLE
EXCEPT TO THE DEPOSITOR OR AN AFFILIATE OF THE DEPOSITOR IN COMPLIANCE WITH
APPLICABLE LAW AND SECTION 5.11 OF THE TRUST AGREEMENT."
SECTION 5.12. Notices to Clearing Agency.
To the extent that a notice or other communication to the Holders is
required under this Trust Agreement, for so long as Preferred Securities are
represented by a Global Preferred Securities Certificate, the Administrators
and the Issuer Trustees shall give all such notices and communications
specified herein to be given to the Clearing Agency, and shall have no
obligations to the Owners.
SECTION 5.13. Rights of Holders.
(a) The legal title to the Trust Property is vested exclusively in the
Property Trustee (in its capacity as such) in accordance with Section 2.9,
and the Holders shall not have any right or title therein other than the
undivided beneficial ownership interest in the assets of the Issuer Trust
conferred by their Trust Securities and they shall have no right to call for
any partition or division of property, profits or rights of the Issuer Trust
except as described below. The Trust
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Securities shall be personal property giving only the rights specifically set
forth therein and in this Trust Agreement. The Trust Securities shall have
no preemptive or similar rights and when issued and delivered to Holders
against payment of the purchase price therefor will be fully paid and
nonassessable by the Issuer Trust. The Holders of the Trust Securities, in
their capacities as such, 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.
(b) For so long as any Preferred Securities remain Outstanding, if,
upon a Debenture Event of Default, the Debenture Trustee fails or the holders
of not less than 25% in principal amount of the outstanding Junior
Subordinated Debentures fail to declare the principal of all of the Junior
Subordinated Debentures to be immediately due and payable, the Holders of at
least 25% in Liquidation Amount of the Preferred Securities then Outstanding
shall have such right to make such declaration by a notice in writing to the
Property Trustee, the Depositor and the Debenture Trustee.
At any time after such a declaration of acceleration with respect to
the Junior Subordinated Debentures has been made and before a judgment or
decree for payment of the money due has been obtained by the Debenture
Trustee as provided in the Indenture, the Holders of a majority in
Liquidation Amount of the Preferred Securities, by written notice to the
Property Trustee, the Depositor and the Debenture Trustee, may rescind and
annul such declaration and its consequences if:
(i) the Depositor has paid or deposited with the Debenture
Trustee a sum sufficient to pay
(A) all overdue installments of interest on all of the
Junior Subordinated Debentures,
(B) any accrued Additional Interest on all of the Junior
Subordinated Debentures,
(C) the principal of (and premium, if any, on) any Junior
Subordinated Debentures which have become due otherwise than by
such declaration of acceleration and interest and Additional
Interest thereon at the rate borne by the Junior Subordinated
Debentures, and
(D) all sums paid or advanced by the Debenture Trustee under
the Indenture and the reasonable compensation, expenses,
disbursements and advances of
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the Debenture Trustee and the Property Trustee, their agents and
counsel; and
(ii) all Events of Default with respect to the Junior Subordinated
Debentures, other than the non-payment of the principal of the
Junior Subordinated Debentures which has become due solely by such
acceleration, have been cured or waived as provided in Section
5.13 of the Indenture.
If the Property Trustee fails to annul any such declaration and waive
such default, the Holders of at least a Majority in Liquidation Amount of the
Preferred Securities shall also have the right to rescind and annul such
declaration and its consequences by written notice to the Depositor, the
Property Trustee and the Debenture Trustee, subject to the satisfaction of
the conditions set forth in Clause (i) and (ii) of this Section 5.13.
The Holders of at least a Majority in Liquidation Amount of the
Preferred Securities may, on behalf of the Holders of all the Preferred
Securities, waive any past default under the Indenture, except a default in
the payment of principal or interest (unless such default has been cured and
a sum sufficient to pay all matured installments of interest and principal
due otherwise than by acceleration has been deposited with the Debenture
Trustee) or a default in respect of a covenant or provision which under the
Indenture cannot be modified or amended without the consent of the holder of
each outstanding Junior Subordinated Debentures. No such rescission shall
affect any subsequent default or impair any right consequent thereon.
Upon receipt by the Property Trustee of written notice declaring such
an acceleration, or rescission and annulment thereof, by Holders of the
Preferred Securities all or part of which is represented by Global Preferred
Securities, a record date shall be established for determining Holders of
Outstanding Preferred Securities entitled to join in such notice, which
record date shall be at the close of business on the day the Property Trustee
receives such notice. The Holders on such record date, or their duly
designated proxies, and only such Persons, shall be entitled to join in such
notice, whether or not such Holders remain Holders after such record date;
provided, that, unless such declaration of acceleration, or rescission and
annulment, as the case may be, shall have become effective by virtue of the
requisite percentage having joined in such notice prior to the day which is
90 days after such record date, such notice of declaration of acceleration,
or rescission and annulment, as the case may be, shall automatically and
without further action by any Holder be canceled and of no
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further effect. Nothing in this paragraph shall prevent a Holder, or a proxy
of a Holder, from giving, after expiration of such 90-day period, a new
written notice of declaration of acceleration, or rescission and annulment
thereof, as the case may be, that is identical to a written notice which has
been canceled pursuant to the proviso to the preceding sentence, in which
event a new record date shall be established pursuant to the provisions of
this Section 5.13(b).
(c) For so long as any Preferred Securities remain Outstanding, to the
fullest extent permitted by law and subject to the terms of this Trust
Agreement and the Indenture, upon a Debenture Event of Default specified in
Section 5.1(1) or 5.1(2) of the Indenture, any Holder of Preferred Securities
shall have the right to institute a proceeding directly against the
Depositor, pursuant to Section 5.9 of the Indenture, for enforcement of
payment to such Holder of the principal amount of or interest on Junior
Subordinated Debentures having an aggregate principal amount equal to the
aggregate Liquidation Amount of the Preferred Securities of such Holder (a
"Direct Action"). Except as set forth in Sections 5.13(b) and 5.13 (c), the
Holders of Preferred Securities shall have no right to exercise directly any
right or remedy available to the holders of, or in respect of, the Junior
Subordinated Debentures.
ARTICLE VI
ACTS OF HOLDERS; MEETINGS; VOTING
SECTION 6.1. Limitations on Holder's Voting Rights.
(a) Except as provided in this Trust Agreement and in the Indenture
and as otherwise required by law, no Holder of Preferred Securities shall
have any right to vote or in any manner otherwise control the administration,
operation and management of the Issuer Trust or the obligations of the
parties hereto, nor shall anything herein set forth or contained in the terms
of the Trust Securities Certificates be construed so as to constitute the
Holders from time to time as members of an association.
(b) So long as any Junior Subordinated Debentures are held by the
Property Trustee on behalf of the Issuer Trust, the Property Trustee shall
not (i) direct the time, method and place of conducting any proceeding for
any remedy available to the Debenture Trustee, or executing any trust or
power conferred on the Property Trustee with respect to such Junior
Subordinated Debentures, (ii) waive any past default that may be waived under
Section 5.13 of the Indenture, (iii) exercise any right to rescind or annul a
declaration that the principal of all the
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Junior Subordinated Debentures shall be due and payable or (iv) consent to
any amendment, modification or termination of the Indenture or the Junior
Subordinated Debentures, where such consent shall be required, without, in
each case, obtaining the prior approval of the Holders of at least a Majority
in Liquidation Amount of the Preferred Securities, provided, however, that
where a consent under the Indenture would require the consent of each Holder
of Junior Subordinated Debentures affected thereby, no such consent shall be
given by the Property Trustee without the prior written consent of each
Holder of Preferred Securities. The Property Trustee shall not revoke any
action previously authorized or approved by a vote of the Holders of
Preferred Securities, except by a subsequent vote of the Holders of Preferred
Securities. The Property Trustee shall notify all Holders of the Preferred
Securities of any notice of default received with respect to the Junior
Subordinated Debentures. In addition to obtaining the foregoing approvals of
the Holders of the Preferred Securities, prior to taking any of the foregoing
actions, the Issuer Trustees shall, at the expense of the Depositor, obtain
an Opinion of Counsel experienced in such matters to the effect that such
action will not cause the Issuer Trust to be taxable as a corporation for
United States Federal income tax purposes.
(c) If any proposed amendment to the Trust Agreement provides for, or
the Issuer Trust otherwise proposes to effect, (i) any action that would
adversely affect in any material respect the interests, powers, preferences
or special rights of the Preferred Securities, whether by way of amendment to
the Trust Agreement or otherwise, or (ii) the dissolution, winding-up or
termination of the Issuer Trust, other than pursuant to the terms of this
Trust Agreement, then the Holders of Outstanding Trust Securities as a class
will be entitled to vote on such amendment or proposal and such amendment or
proposal shall not be effective except with the approval of the Holders of at
least a Majority in Liquidation Amount of the Preferred Securities.
Notwithstanding any other provision of this Trust Agreement, no amendment to
this Trust Agreement may be made if, as a result of such amendment, it would
cause the Issuer Trust to be taxable as a corporation for United States
Federal income tax purposes.
SECTION 6.2. Notice of Meetings.
Notice of all meetings of the Holders, stating the time, place and
purpose of the meeting, shall be given by the Property Trustee pursuant to
Section 10.8 to each Holder of record, at his registered address, at least 15
days and not more than 90 days before the meeting. At any such meeting, any
business properly before the meeting may be so considered whether or not
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stated in the notice of the meeting. Any adjourned meeting may be held as
adjourned without further notice.
SECTION 6.3. Meetings of Holders.
No annual meeting of Holders is required to be held. The Property
Trustee, however, shall call a meeting of Holders to vote on any matter upon
the written request of the Holders of record of 25% of the aggregate
Liquidation Amount of the Preferred Securities and the Administrators or the
Property Trustee may, at any time in their discretion, call a meeting of
Holders of Preferred Securities to vote on any matters as to which Holders
are entitled to vote.
Holders of at least a Majority in Liquidation Amount of the Preferred
Securities, present in person or represented by proxy, shall constitute a
quorum at any meeting of Holders of the Preferred Securities.
If a quorum is present at a meeting, an affirmative vote by the Holders
of record present, in person or by proxy, holding Preferred Securities
representing at least a Majority in Liquidation Amount of the Preferred
Securities held by the Holders present, either in person or by proxy, at such
meeting shall constitute the action of the Holders of Preferred Securities,
unless this Trust Agreement requires a greater number of affirmative votes.
SECTION 6.4. Voting Rights.
Holders shall be entitled to one vote for each $25 of Liquidation
Amount represented by their Outstanding Trust Securities in respect of any
matter as to which such Holders are entitled to vote.
SECTION 6.5. Proxies, etc.
At any meeting of Holders, any Holder entitled to vote thereat may vote
by proxy, provided that no proxy shall be voted at any meeting unless it
shall have been placed on file with the Property Trustee, or with such other
officer or agent of the Issuer Trust as the Property Trustee may direct, for
verification prior to the time at which such vote shall be taken. Pursuant
to a resolution of the Property Trustee, proxies may be solicited in the name
of the Property Trustee or one or more officers of the Property Trustee.
Only Holders of record shall be entitled to vote. When Trust Securities are
held jointly by several persons, any one of them may vote at any meeting in
person or by proxy in respect of such Trust Securities, but if more than one
of them shall be present at such meeting in person or by proxy, and such
joint owners or
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their proxies so present disagree as to any vote to be cast, such vote shall
not be received in respect of such Trust Securities. A proxy purporting to
be executed by or on behalf of a Holder shall be deemed valid unless
challenged at or prior to its exercise, and the burden of proving invalidity
shall rest on the challenger. No proxy shall be valid more than three years
after its date of execution.
SECTION 6.6. Holder Action by Written Consent.
Any action which may be taken by Holders at a meeting may be taken
without a meeting if Holders holding at least a Majority in Liquidation
Amount of all Trust Securities entitled to vote in respect of such action (or
such larger proportion thereof as shall be required by any other provision of
this Trust Agreement) shall consent to the action in writing.
SECTION 6.7. Record Date for Voting and Other Purposes.
For the purposes of determining the Holders who are entitled to notice
of and to vote at any meeting or by written consent, or to participate in any
distribution on the Trust Securities in respect of which a record date is not
otherwise provided for in this Trust Agreement, or for the purpose of any
other action, the Administrators or Property Trustee may from time to time
fix a date, not more than 90 days prior to the date of any meeting of Holders
or the payment of a distribution or other action, as the case may be, as a
record date for the determination of the identity of the Holders of record
for such purposes.
SECTION 6.8. Acts of Holders.
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Trust Agreement to be given,
made or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person
or by an agent duly appointed in writing; and, except as otherwise expressly
provided herein, such action shall become effective when such instrument or
instruments are delivered to the Property Trustee. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are
herein sometimes referred to as the "Act" of the Holders signing such
instrument or instruments. Proof of execution of any such instrument or of a
writing appointing any such agent shall be sufficient for any purpose of this
Trust Agreement and (subject to Section 8.1) conclusive in favor of the
Issuer Trustees, if made in the manner provided in this Section.
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The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or
by a certificate of a notary public or other officer authorized by law to
take acknowledgments of deeds, certifying that the individual signing such
instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient
proof of his authority. The fact and date of the execution of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which any Issuer Trustee or Administrator
receiving the same deems sufficient.
The ownership of Trust Securities shall be proved by the Securities
Register.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Trust Security shall bind every future
Holder of the same Trust Security and the Holder of every Trust Security
issued upon the registration of transfer thereof or in exchange therefor or
in lieu thereof in respect of anything done, omitted or suffered to be done
by the Issuer Trustees, the Administrators or the Issuer Trust in reliance
thereon, whether or not notation of such action is made upon such Trust
Security.
Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Trust Security may do so with
regard to all or any part of the Liquidation Amount of such Trust Security or
by one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such Liquidation Amount.
If any dispute shall arise among the Holders, the Administrators or the
Issuer Trustees with respect to the authenticity, validity or binding nature
of any request, demand, authorization, direction, consent, waiver or other
Act of such Holder or Issuer Trustee under this Article VI, then the
determination of such matter by the Property Trustee shall be conclusive with
respect to such matter.
A Holder may institute a legal proceeding directly against the
Depositor under the Guarantee Agreement to enforce its rights under the
Guarantee Agreement without first instituting a legal proceeding against the
Guarantee Trustee (as defined in the Guarantee Agreement), the Issuer Trust,
any Issuer Trustee, any Administrator or any person or entity.
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SECTION 6.9. Inspection of Records.
Upon reasonable notice to the Administrators and the Property Trustee,
the records of the Issuer Trust shall be open to inspection by Holders during
normal business hours for any purpose reasonably related to such Holder's
interest as a Holder.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
SECTION 7.1. Representations and Warranties of the Property Trustee and
the Delaware Trustee.
The Property Trustee and the Delaware Trustee, each severally on behalf
of and as to itself, hereby represents and warrants for the benefit of the
Depositor and the Holders that:
(a) The Property Trustee is a banking corporation with trust powers,
duly organized, validly existing and in good standing under the laws of New
York, 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 execution, delivery and performance by the Property Trustee of
this Trust Agreement has been duly authorized by all necessary corporate
action on the part of the Property Trustee; and this Trust Agreement has been
duly executed and delivered by the Property Trustee, and 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).
(c) The execution, delivery and performance of this Trust Agreement by
the Property Trustee does not conflict with or constitute a breach of the
certificate of incorporation or by-laws of the Property Trustee.
(d) At the Time of Delivery, the Property Trustee has not knowingly
created any liens or encumbrances on the Trust Securities.
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(e) No consent, approval or authorization of, or registration with or
notice to, any New York State or federal banking authority is required for
the execution, delivery or performance by the Property Trustee, of this Trust
Agreement.
(f) The Delaware Trustee is duly organized, validly existing and in
good standing under the laws of the State of Delaware, with trust power and
authority to execute and deliver, and to carry out and perform its
obligations under the terms of, the Trust Agreement.
(g) The execution, delivery and performance by the Delaware Trustee of
this Trust Agreement has been duly authorized by all necessary corporate
action on the part of the Delaware Trustee; and this Trust Agreement has been
duly executed and delivered by the Delaware Trustee, and 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' right 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).
(h) The execution, delivery and performance of this Trust Agreement by
the Delaware Trustee does not conflict with or constitute a breach of the
certificate of incorporation or by-laws of the Delaware Trustee.
(i) No consent, approval or authorization of, or registration with or
notice to any state or Federal banking authority is required for the
execution, delivery or performance by the Delaware Trustee, of this Trust
Agreement.
(j) The Delaware Trustee is an entity which has its principal place of
business in the State of Delaware.
SECTION 7.2. Representations and Warranties of Depositor.
The Depositor hereby represents and warrants for the benefit of the
Holders that:
(a) the Trust Securities Certificates issued at the Time of Delivery
on behalf of the Issuer Trust have been duly authorized and will have been
duly and validly executed, issued and delivered by the Issuer Trustees
pursuant to the terms and provisions of, and in accordance with the
requirements of, this Trust Agreement, and the Holders will be, as of each
such date, entitled to the benefits of this Trust Agreement; and
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(b) there are no taxes, fees or other governmental charges payable by
the Issuer Trust (or the Issuer Trustees on behalf of the Issuer Trust) under
the laws of the State of Delaware or any political subdivision thereof in
connection with the execution, delivery and performance by either the
Property Trustee or the Delaware Trustee, as the case may be, of this Trust
Agreement.
ARTICLE VIII
THE ISSUER TRUSTEES; THE ADMINISTRATORS
SECTION 8.1. Certain Duties and Responsibilities.
(a) The duties and responsibilities of the Issuer Trustees and the
Administrators shall be as provided by this Trust Agreement and, in the case
of the Property Trustee, by the Trust Indenture Act. Notwithstanding the
foregoing, no provision of this Trust Agreement shall require the Issuer
Trustees or the Administrators to expend or risk their own funds or otherwise
incur any financial liability in the performance of any of their duties
hereunder, or in the exercise of any of their rights or powers, if they shall
have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured
to it. Whether or not therein expressly so provided, every provision of this
Trust Agreement relating to the conduct or affecting the liability of or
affording protection to the Issuer Trustees or the Administrators shall be
subject to the provisions of this Section. Nothing in this Trust Agreement
shall be construed to release an Administrator from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct. To the extent that, at law or in equity, an Issuer Trustee or
Administrator has duties and liabilities relating to the Issuer Trust or to
the Holders, such Issuer Trustee or Administrator shall not be liable to the
Issuer Trust or to any Holder for such Issuer Trustee's or Administrator's
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 the Issuer Trustees and Administrators otherwise
existing at law or in equity, are agreed by the Depositor and the Holders to
replace such other duties and liabilities of the Issuer Trustees and
Administrators.
(b) All payments made by the Property Trustee or a Paying Agent in
respect of the Trust Securities shall be made only from the revenue and
proceeds from the Trust Property and only to the extent that there shall be
sufficient revenue or proceeds from the Trust Property to enable the Property
Trustee or a Paying Agent to make payments in accordance with the terms
hereof.
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Each Holder, by its acceptance of a Trust Security, agrees that it will look
solely to the revenue and proceeds from the Trust Property to the extent
legally available for distribution to it as herein provided and that neither
the Issuer Trustees nor the Administrators are personally liable to it for
any amount distributable in respect of any Trust Security or for any other
liability in respect of any Trust Security. This Section 8.1(b) does not
limit the liability of the Issuer Trustees expressly set forth elsewhere in
this Trust Agreement or, in the case of the Property Trustee, in the Trust
Indenture Act.
(c) The Property Trustee, before the occurrence of any Event of
Default and after the curing of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Trust Agreement (including pursuant to Section 10.10), and no implied
covenants shall be read into this Trust Agreement against the Property
Trustee. If an Event of Default has occurred (that has not been cured or
waived pursuant to Section 5.13 of the Indenture), the Property Trustee shall
enforce this Trust Agreement for the benefit of the Holders and 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 its exercise thereof, as a
prudent person would exercise or use under the circumstances in the conduct
of his or her own affairs.
(d) 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 any Event of Default and after the
curing or waiving of all such Events of Default 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 (including pursuant to Section 10.10), 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 (including pursuant to Section 10.10); 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
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of any such certificates or opinions that by any provision hereof
or of the Trust Indenture Act are specifically required to be
furnished to the Property Trustee, the Property Trustee shall be
under a duty to examine the same to determine whether or not they
conform to the requirements of this Trust Agreement;
(ii) the Property Trustee shall not be liable for any error of
judgment made in good faith by an authorized 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 in good faith in accordance
with the direction of the Holders of at least a Majority in Liquidation
Amount of the Preferred 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) the Property Trustee's sole duty with respect to the custody,
safe keeping and physical preservation of the Junior Subordinated
Debentures and the Payment 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;
(v) the Property Trustee shall not be liable for any interest on
any money received by it except as it may otherwise agree with the
Depositor; and money held by the Property Trustee need not be
segregated from other funds held by it except in relation to the
Payment Account maintained by the Property Trustee pursuant to Section
3.1 and except to the extent otherwise required by law;
(vi) the Property Trustee shall not be responsible for monitoring
the compliance by the Administrators or the Depositor with their
respective duties under this Trust Agreement, nor shall the Property
Trustee be liable for the default or misconduct of any other Issuer
Trustee, the Administrators or the Depositor; and
(vii) 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
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any of its rights or powers, if the Property Trustee 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 adequate indemnity against such risk or liability is not
reasonably assured to it.
(e) The Administrators shall not be responsible for monitoring the
compliance by the Issuer Trustee or the Depositor with their respective
duties under this Trust Agreement, nor shall either Administrator be liable
for the default or misconduct of any other Administrator, the Issuer Trustees
or the Depositor.
SECTION 8.2. Certain Notices.
Within five Business Days after the occurrence of any Event of Default
actually known to a Responsible Officer of the Property Trustee, the Property
Trustee shall transmit, in the manner and to the extent provided in Section
10.8, notice of such Event of Default to the Holders and the Administrators,
unless such Event of Default shall have been cured or waived.
Within five Business Days after the receipt of notice of the
Depositor's exercise of its right to defer the payment of interest on the
Junior Subordinated Debentures pursuant to the Indenture, the Property
Trustee shall transmit, in the manner and to the extent provided in Section
10.8, notice of such exercise to the Holders and the Administrators, unless
such exercise shall have been revoked.
SECTION 8.3. Certain Rights of Property Trustee.
Subject to the provisions of Section 8.1:
(a) the Property Trustee may rely and shall be fully protected in
acting or refraining from acting in good faith upon any resolution, Opinion
of Counsel, certificate, written representation of a Holder or transferee,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by
it to be genuine and to have been signed or presented by the proper party or
parties;
(b) any direction or act of the Depositor contemplated by this Trust
Agreement shall be sufficiently evidenced by an Officers' Certificate;
(c) the Property Trustee shall have no duty to see to any recording,
filing or registration of any instrument (including
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any financing or continuation statement or any filing under tax or securities
laws) or any re-recording, refiling or reregistration thereof;
(d) the Property Trustee may consult with counsel of its own choosing
(which counsel may be counsel to the Depositor or any of its Affiliates, and
may include any of its employees) and the advice of such counsel 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 reliance thereon and
in accordance with such advice, such counsel may be counsel to the Depositor
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;
(e) 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 of the Holders pursuant to this Trust Agreement, unless
such Holders shall have offered to the Property Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction; provided that,
nothing contained in this Section 8.3(f) shall be taken to relieve the
Property Trustee, upon the occurrence of an Event of Default, of its
obligation to exercise the rights and powers vested in it by this Trust
Agreement;
(f) 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, consent, order, approval, bond,
debenture, note or other evidence of indebtedness or other paper or document,
unless requested in writing to do so by one or more Holders, but the Property
Trustee may make such further inquiry or investigation into such facts or
matters as it may see fit;
(g) the Property Trustee may execute any of the trusts or powers
hereunder or perform any of its duties hereunder either directly or by or
through its agents or attorneys, provided that 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;
(h) 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 (which
instructions may only be given by the Holders of the same
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proportion in Liquidation Amount of the Trust Securities as would be entitled
to direct the Property Trustee under the terms of the Trust 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 fully protected in acting in accordance with
such instructions; and
(i) 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.
No provision of this Trust Agreement shall be deemed to impose any duty
or obligation on any Issuer Trustee or Administrator 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 any Issuer Trustee or Administrator shall be construed to be a duty.
SECTION 8.4. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Trust Securities Certificates
shall be taken as the statements of the Issuer Trust, and the Issuer Trustees
and the Administrators do not assume any responsibility for their
correctness. The Issuer Trustees and the Administrators shall not be
accountable for the use or application by the Depositor of the proceeds of
the Junior Subordinated Debentures.
SECTION 8.5. May Hold Securities.
Except as provided in the definition of the term "Outstanding" in
Article I, the Administrators, any Issuer Trustee or any other agent of any
Issuer Trustee or the Issuer Trust, in its individual or any other capacity,
may become the owner or pledgee of Trust Securities and, subject to Sections
8.8 and 8.13, may otherwise deal with the Issuer Trust with the same rights
it would have if it were not an Administrator, Issuer Trustee or such other
agent.
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SECTION 8.6. Compensation; Indemnity; Fees.
The Depositor, as borrower, agrees:
(a) to pay to the Issuer Trustees from time to time reasonable
compensation for all services rendered by them hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation of
a trustee of an express trust);
(b) to reimburse the Issuer Trustees upon request for all reasonable
expenses, disbursements and advances incurred or made by the Issuer Trustees
in accordance with any provision of this Trust Agreement (including the
reasonable compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to their negligence or willful misconduct; and
(c) to the fullest extent permitted by applicable law, to indemnify
and hold harmless (i) each Issuer Trustee, (ii) each Administrator, (iii) any
Affiliate of any Issuer Trustee, (iv) any officer, director, shareholder,
employee, representative or agent of any Issuer Trustee, and (v) any employee
or agent of the Issuer Trust, (referred to herein as an "Indemnified Person")
from and against any loss, damage, liability, tax, penalty, expense or claim
of any kind or nature whatsoever incurred by such Indemnified Person arising
out of or in connection with the creation, operation or termination of the
Issuer Trust or any act or omission performed or omitted by such Indemnified
Person in good faith on behalf of the Issuer Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of authority
conferred on such Indemnified Person by this Trust Agreement, except that no
Indemnified Person shall be entitled to be indemnified in respect of any
loss, damage or claim incurred by such Indemnified Person by reason of
negligence or willful misconduct with respect to such acts or omissions.
The provisions of this Section 8.6 shall survive the termination of
this Trust Agreement.
No Issuer Trustee may claim any lien or charge on any Trust Property as
a result of any amount due pursuant to this Section 8.6.
The Depositor, any Administrator and any Issuer 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
business of the Issuer Trust, and the Issuer Trust and the Holders of Trust
Securities shall have no rights by virtue of this Trust Agreement in and to
such
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independent ventures or the income or profits derived therefrom, and the
pursuit of any such venture, even if competitive with the business of the
Issuer Trust, shall not be deemed wrongful or improper. Neither the
Depositor, any Administrator, nor any Issuer Trustee shall be obligated to
present any particular investment or other opportunity to the Issuer Trust
even if such opportunity is of a character that, if presented to the Issuer
Trust, could be taken by the Issuer Trust, and the Depositor, any
Administrator or any Issuer 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 Issuer Trustee may
engage or be interested in any financial or other transaction with the
Depositor or any Affiliate of the Depositor, or may act as depository for,
trustee or agent for, or act on any committee or body of holders of,
securities or other obligations of the Depositor or its Affiliates.
SECTION 8.7. Corporate Property Trustee Required; Eligibility of
Trustees and Administrators.
(a) There shall at all times be a Property Trustee hereunder with
respect to the Trust Securities. The Property Trustee shall be a Person that
is a national or state chartered bank and eligible pursuant to the Trust
Indenture Act to act as such and has a combined capital and surplus of at
least $50,000,000. If any such Person publishes reports of condition at
least annually, pursuant to law or to the requirements of its supervising or
examining authority, then for the purposes of this Section, the combined
capital and surplus of such Person shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published.
If at any time the Property Trustee with respect to the Trust Securities
shall cease to be eligible in accordance with the provisions of this Section,
it shall resign immediately in the manner and with the effect hereinafter
specified in this Article. At the time of appointment, the Property Trustee
must have securities rated in one of the three highest rating categories by a
nationally recognized statistical rating organization.
(b) There shall at all times be one or more Administrators hereunder.
Each Administrator 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 persons
authorized to bind that entity. An employee, officer or Affiliate of the
Depositor may serve as an Administrator.
(c) There shall at all times be a Delaware Trustee. The Delaware
Trustee shall either be (i) a natural person who is at least 21 years of age
and a resident of the State of Delaware or
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(ii) a legal entity with its principal place of business in the State of
Delaware and that otherwise meets the requirements of applicable Delaware law
that shall act through one or more persons authorized to bind such entity.
SECTION 8.8. Conflicting Interests.
(a) If the Property Trustee has or shall acquire a conflicting
interest within the meaning of the Trust Indenture Act, the Property Trustee
shall either eliminate such interest or resign, to the extent and in the
manner provided by, and subject to the provisions of, the Trust Indenture Act
and this Trust Agreement.
(b) The Guarantee Agreement and the Indenture shall be deemed to be
sufficiently described in this Trust Agreement for the purposes of clause (i)
of the first proviso contained in Section 310(b) of the Trust Indenture Act.
SECTION 8.9. Co-Trustees and Separate Trustee.
Unless an Event of Default shall have occurred and be continuing, at
any time or times, for the purpose of meeting the legal requirements of the
Trust Indenture Act or of any jurisdiction in which any part of the Trust
Property may at the time be located, the Property Trustee shall have power to
appoint, and upon the written request of the Property Trustee, the Depositor
and the Administrators shall for such purpose join with the Property Trustee
in the execution, delivery, and performance of all instruments and agreements
necessary or proper to appoint, one or more Persons approved by the Property
Trustee either to act as co-trustee, jointly with the Property Trustee, of
all or any part of such Trust Property, or to the extent required by law to
act as separate trustee of any such property, in either case with such powers
as may be provided in the instrument of appointment, and to vest in such
Person or Persons in the capacity aforesaid, any property, title, right or
power deemed necessary or desirable, subject to the other provisions of this
Section. Any co-trustee or separate trustee appointed pursuant to this
Section shall either be (i) a natural person who is at least 21 years of age
and a resident of the United States or (ii) a legal entity with its principal
place of business in the United States that shall act through one or more
persons authorized to bind such entity.
Should any written instrument from the Depositor be required by any
co-trustee or separate trustee so appointed for more fully confirming to such
co-trustee or separate trustee such property, title, right, or power, any and
all such instruments shall, on request, be executed, acknowledged and
delivered by the Depositor.
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Every co-trustee or separate trustee shall, to the extent permitted by
law, but to such extent only, be appointed subject to the following terms,
namely:
(a) The Trust Securities shall be executed by one or more
Administrators, and the Trust Securities shall be executed and delivered and
all rights, powers, duties, and obligations hereunder in respect of the
custody of securities, cash and other personal property held by, or required
to be deposited or pledged with, the Property Trustees specified hereunder,
shall be exercised, solely by the Property Trustee and not by such co-trustee
or separate trustee.
(b) The rights, powers, duties, and obligations hereby conferred or
imposed upon the Property Trustee in respect of any property covered by such
appointment shall be conferred or imposed upon and exercised or performed by
the Property Trustee and such co-trustee or separate trustee jointly, as
shall be provided in the instrument appointing such co-trustee or separate
trustee, except to the extent that under any law of any jurisdiction in which
any particular act is to be performed, the Property Trustee shall be
incompetent or unqualified to perform such act, in which event such rights,
powers, duties and obligations shall be exercised and performed by such
co-trustee or separate trustee.
(c) The Property Trustee at any time, by an instrument in writing
executed by it, with the written concurrence of the Depositor, may accept the
resignation of or remove any co-trustee or separate trustee appointed under
this Section, and, in case a Debenture Event of Default has occurred and is
continuing, the Property Trustee shall have power to accept the resignation
of, or remove, any such co-trustee or separate trustee without the
concurrence of the Depositor. Upon the written request of the Property
Trustee, the Depositor shall join with the Property Trustee in the execution,
delivery and performance of all instruments and agreements necessary or
proper to effectuate such resignation or removal. A successor to any
co-trustee or separate trustee so resigned or removed may be appointed in the
manner provided in this Section.
(d) No co-trustee or separate trustee hereunder shall be personally
liable by reason of any act or omission of the Property Trustee or any other
trustee hereunder.
(e) The Property Trustee shall not be liable by reason of any act of a
co-trustee or separate trustee.
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(f) Any Act of Holders delivered to the Property Trustee shall be
deemed to have been delivered to each such co-trustee and separate trustee.
SECTION 8.10. Resignation and Removal; Appointment of Successor.
No resignation or removal of any Issuer Trustee (the "Relevant
Trustee") and no appointment of a successor Trustee pursuant to this Article
shall become effective until the acceptance of appointment by the successor
Trustee in accordance with the applicable requirements of Section 8.11.
Subject to the immediately preceding paragraph, a Relevant Trustee may
resign at any time by giving written notice thereof to the Holders. The
Relevant Trustee shall appoint a successor by requesting from at least three
Persons meeting the eligibility requirements its expenses and charges to
serve as the Relevant Trustee on a form provided by the Administrators, and
selecting the Person who agrees to the lowest expenses and charges. If the
instrument of acceptance by the successor Trustee required by Section 8.11
shall not have been delivered to the Relevant Trustee within 60 days after
the giving of such notice of resignation, the Relevant Trustee may petition,
at the expense of the Issuer Trust, any court of competent jurisdiction for
the appointment of a successor Relevant Trustee.
The Property Trustee or the Delaware Trustee may be removed at any time
by Act of the Holders of at least a Majority in Liquidation Amount of the
Preferred Securities, delivered to the Relevant Trustee (in its individual
capacity and on behalf of the Issuer Trust) (i) for cause (including upon the
occurrence of an Event of Default described in subparagraph (f) of the
definition thereof with respect to the Relevant Trustee), or (ii) if a
Debenture Event of Default shall have occurred and be continuing at any time.
If any Issuer Trustee shall resign, it shall appoint its successor. If
a resigning Issuer Trustee shall fail to appoint a successor, or if an Issuer
Trustee shall be removed or become incapable of acting as Issuer Trustee, or
if any vacancy shall occur in the office of any Issuer Trustee for any cause,
the Holders of the Preferred Securities, by Act of the Holders of record of
not less than 25% in aggregate Liquidation Amount of the Preferred Securities
then Outstanding delivered to such Relevant Trustee, shall promptly appoint a
successor Relevant Trustee or Trustees, and such successor Issuer Trustee
shall comply with the applicable requirements of Section 8.11. If no
successor Relevant Trustee shall have been so appointed by the Holders of the
Preferred Securities and accepted appointment in the manner required by
Section 8.11, any Holder, on behalf of
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himself and all others similarly situated, or any other Issuer Trustee, may
petition any court of competent jurisdiction for the appointment of a
successor Relevant Trustee.
The Property Trustee shall give notice of each resignation and each
removal of an Issuer Trustee and each appointment of a successor Trustee to
all Holders in the manner provided in Section 10.8 and shall give notice to
the Depositor and to the Administrators. Each notice shall include the name
of the successor Relevant Trustee and the address of its Corporate Trust
Office if it is the Property Trustee.
Notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event any Delaware Trustee who is a natural person dies or
becomes, in the opinion of the Holders of the Common Securities, incompetent
or incapacitated, the vacancy created by such death, incompetence or
incapacity may be filled by the Property Trustee following the procedures
regarding expenses and charges set forth above (with the successor in each
case being a Person who satisfies the eligibility requirement for
Administrators or Delaware Trustee, as the case may be, set forth in Section
8.7).
SECTION 8.11. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Relevant Trustee,
the retiring Relevant Trustee and each such successor Relevant Trustee with
respect to the Trust Securities shall execute, acknowledge and deliver an
amendment hereto wherein each successor Relevant Trustee shall accept such
appointment and which (a) shall contain such provisions as shall be necessary
or desirable to transfer and confirm to, and to vest in, each successor
Relevant Trustee all the rights, powers, trusts and duties of the retiring
Relevant Trustee with respect to the Trust Securities and the Issuer Trust,
and (b) shall add to or change any of the provisions of this Trust Agreement
as shall be necessary to provide for or facilitate the administration of the
Issuer Trust by more than one Relevant Trustee, it being understood that
nothing herein or in such amendment shall constitute such Relevant
co-trustees and upon the execution and delivery of such amendment the
resignation or removal of the retiring Relevant Trustee shall become
effective to the extent provided therein and each such successor Relevant
Trustee, without any further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the retiring Relevant
Trustee; but, on request of the Issuer Trust or any successor Relevant
Trustee such retiring Relevant Trustee shall duly assign, transfer and
deliver to such successor Relevant Trustee all Trust Property, all proceeds
thereof and money held by such retiring Relevant Trustee hereunder with
respect to the Trust Securities and the Trust.
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Upon request of any such successor Relevant Trustee, the Issuer Trust
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Relevant Trustee all such rights, powers and
trusts referred to in the first or second preceding paragraph, as the case
may be.
No successor Relevant Trustee shall accept its appointment unless at
the time of such acceptance such successor Relevant Trustee shall be
qualified and eligible under this Article.
SECTION 8.12. Merger, Conversion, Consolidation or Succession to
Business.
Any Person into which the Property Trustee or the Delaware Trustee may
be merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which such Relevant
Trustee shall be a party, or any Person succeeding to all or substantially
all the corporate trust business of such Relevant Trustee, shall be the
successor of such Relevant Trustee hereunder, provided that such Person 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.
SECTION 8.13. Preferential Collection of Claims Against Depositor or
Issuer Trust.
If and when the Property Trustee shall be or become a creditor of the
Depositor (or any other obligor upon the Trust Securities), the Property
Trustee shall be subject to the provisions of the Trust Indenture Act
regarding the collection of claims against the Depositor (or any such other
obligor) as is required by the Trust Indenture Act.
SECTION 8.14. Trustee May File Proofs of Claim.
In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other similar
judicial proceeding relative to the Issuer Trust or any other obligor upon
the Trust Securities or the property of the Issuer Trust or of such other
obligor, the Property Trustee (irrespective of whether any Distributions on
the Trust Securities shall then be due and payable and irrespective of
whether the Property Trustee shall have made any demand on the Issuer 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:
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(a) to file and prove a claim for the whole amount of any Distributions
owning and unpaid in respect of the Trust 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 agents and counsel) and of the Holders allowed in such judicial
proceeding, and
(b) to collect and receive any monies 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, 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 Trust 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.
SECTION 8.15. Reports by Property Trustee.
(a) Not later than January 31 of each year commencing with January 31,
1998, the Property Trustee shall transmit to all Holders in accordance with
Section 10.8, and to the Depositor, a brief report dated as of the
immediately preceding December 31 with respect to:
(i) its eligibility under Section 8.7 or, in lieu thereof, if to
the best of its knowledge it has continued to be eligible under said
Section, a written statement to such effect; and
(ii) any change in the property and funds in its possession as
Property Trustee since the date of its last report and any action taken
by the Property Trustee in the performance of its duties hereunder
which it has not previously reported and which in its opinion
materially affects the Trust Securities.
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(b) In addition the Property Trustee shall transmit to Holders such
reports concerning the Property Trustee and its actions under this Trust
Agreement as may be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant thereto as set forth in Section 10.10 of
this Trust Agreement.
(c) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Property Trustee with the Depositor.
SECTION 8.16. Reports to the Property Trustee.
The Depositor and the Administrators on behalf of the Issuer Trust
shall provide to the Property Trustee such documents, reports and information
as required by Section 314 of the Trust Indenture Act and the compliance
certificate required by Section 314(a) of the Trust Indenture Act in the
form, in the manner and at the times required by Section 314 of the Trust
Indenture Act, as set forth in Section 10.10 of this Trust Agreement. The
Depositor and the Administrators shall annually file with the Property
Trustee a certificate specifying whether such Person is in compliance with
all the terms and covenants applicable to such Person hereunder.
SECTION 8.17. Evidence of Compliance with Conditions Precedent.
Each of the Depositor and the Administrators on behalf of the Issuer
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 as set forth in Section 10.10 of this Trust Agreement. Any
certificate or opinion required to be given by an officer pursuant to Section
314(c)(1) of the Trust Indenture Act shall be given in the form of an
Officers' Certificate.
SECTION 8.18. Number of Issuer Trustees.
(a) The number of Issuer Trustees shall be two. The Property Trustee
and the Delaware Trustee may be the same Person.
(b) If an Issuer Trustee ceases to hold office for any reason, a
vacancy shall occur. The vacancy shall be filled with an Issuer Trustee
appointed in accordance with Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of an Issuer Trustee shall
not operate to annul the Issuer Trust.
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SECTION 8.19. Delegation of Power.
(a) Any Administrator 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 purpose of executing any documents contemplated in
Section 2.7(a) or making any governmental filing; and
(b) The Administrators shall have power to delegate from time to time
to such of their number the doing of such things and the execution of such
instruments either in the name of the Issuer Trust or the names of the
Administrators or otherwise as the Administrators may deem expedient, to the
extent such delegation is not prohibited by applicable law or contrary to the
provisions of this Trust Agreement.
SECTION 8.20. Appointment of Administrators.
(a) The Administrators shall be appointed by the Holders of a Majority
in Liquidation Amount of the Common Securities and may be removed by the
Holders of a Majority in Liquidation Amount of the Common Securities or may
resign at any time. Upon any resignation or removal, the Depositor shall
appoint a successor Administrator. Each Administrator shall sign an
agreement agreeing to comply with the terms of this Trust Agreement. If at
any time there is no Administrator, the Property Trustee or any Holder who
has been a Holder of Trust Securities for at least six months may petition
any court of competent jurisdiction for the appointment of one or more
Administrators.
(b) Whenever a vacancy in the number of Administrators shall occur,
until such vacancy is filled by the appointment of an Administrator in
accordance with this Section 8.20, the Administrators in office, regardless
of their number (and notwithstanding any other provision of this Agreement),
shall have all the powers granted to the Administrators and shall discharge
all the duties imposed upon the Administrators by this Trust Agreement.
(c) Notwithstanding the foregoing, or any other provision of this
Trust Agreement, in the event any Administrator or a Delaware Trustee who is
a natural person dies or becomes, in the opinion of the Holders of a Majority
in Liquidation Amount of the Common Securities, incompetent, or
incapacitated, the vacancy created by such death, incompetence or incapacity
may be filled by the remaining Administrators, if there were at least two of
them prior to such vacancy, and by the Depositor, if there were not two such
Administrators immediately prior to such vacancy (with the successor in each
case being a Person who
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satisfies the eligibility requirement for Administrators or Delaware Trustee,
as the case may be, set forth in Section 8.7).
ARTICLE IX
TERMINATION, LIQUIDATION AND MERGER
SECTION 9.1. Termination Upon Expiration Date; Termination Upon Tax
Event.
(a) Unless earlier terminated, the Issuer Trust shall automatically
terminate on ________ __, 2028 (the "Expiration Date"), following the
distribution of the Trust Property in accordance with Section 9.4.
SECTION 9.2. Early Termination.
The first to occur of any of the following events is an "Early
Termination Event":
(a) the occurrence of the appointment of a receiver or other similar
official in any liquidation, insolvency or similar proceeding with respect to
the Depositor or all or substantially all of its property, or a court or
other governmental agency shall enter a decree or order and such decree or
order shall remain unstayed and undischarged for a period of 60 days, unless
the Depositor shall transfer the Common Securities as provided by Section
5.11, in which case this provision shall refer instead to any such successor
Holder of the Common Securities;
(b) the written direction to the Property Trustee from the Holder of
the Common Securities at any time to terminate the Issuer Trust and to
distribute the Junior Subordinated Debentures to Holders in exchange for the
Preferred Securities (which direction, subject to Section 9.4(a), is optional
and wholly within the discretion of the Holders of the Common Securities);
(c) the redemption of all of the Preferred Securities in connection
with the redemption of all the Junior Subordinated Debentures; and
(d) the entry of an order for dissolution of the Issuer Trust by a
court of competent jurisdiction.
SECTION 9.3. Termination.
The respective obligations and responsibilities of the Issuer Trustees,
the Administrators and the Issuer Trust created and continued hereby shall
terminate upon the latest to occur of the following: (a) the distribution by
the Property Trustee to
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Holders of all amounts required to be distributed hereunder upon the
liquidation of the Issuer Trust pursuant to Section 9.4, or upon the
redemption of all of the Trust Securities pursuant to Section 4.2, (b) the
payment of any expenses owed by the Issuer Trust, and (c) the discharge of
all administrative duties of the Administrators, including the performance of
any tax reporting obligations with respect to the Issuer Trust or the
Holders.
SECTION 9.4. Liquidation.
(a) If an Early Termination Event specified in clause (a), (b) or (d)
of Section 9.2 occurs or upon the Expiration Date, the Issuer Trust shall be
liquidated by the Property Trustee as expeditiously as the Property Trustee
determines to be possible by distributing, after satisfaction of liabilities
to creditors of the Issuer Trust as provided by applicable law, to each
Holder a Like Amount of Junior Subordinated Debentures, subject to Section
9.4(d). Notice of liquidation shall be given by the Property Trustee by
first-class mail, postage prepaid, mailed not later than 15 nor more than 45
days prior to the Liquidation Date to each Holder of Trust Securities at such
Holder's address appearing in the Securities Register. All notices of
liquidation shall:
(i) state the Liquidation Date;
(ii) state that, from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be Outstanding and any Trust
Securities Certificates not surrendered for exchange will be deemed to
represent a Like Amount of Junior Subordinated Debentures; and
(iii) provide such information with respect to the mechanics by
which Holders may exchange Trust Securities Certificates for Junior
Subordinated Debentures, or if Section 9.4(d) applies receive a Liquidation
Distribution, as the Administrators or the Property Trustee shall deem
appropriate.
(b) Except where Section 9.2(c) or 9.4(d) applies, in order to effect
the liquidation of the Issuer Trust and distribution of the Junior
Subordinated Debentures to Holders, the Property Trustee shall establish a
record date for such distribution (which shall be not more than 30 days prior
to the Liquidation Date) and, either itself acting as exchange agent or
through the appointment of a separate exchange agent, shall establish such
procedures as it shall deem appropriate to effect the distribution of Junior
Subordinated Debentures in exchange for the Outstanding Trust Securities
Certificates.
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(c) Except where Section 9.2(c) or 9.4(d) applies, after the
Liquidation Date, (i) the Trust Securities will no longer be deemed to be
Outstanding, (ii) the Clearing Agency for the Preferred Securities or its
nominee, as the registered holder of the Global Preferred Securities
Certificate, shall receive a registered global certificate or certificates
representing the Junior Subordinated Debentures to be delivered upon such
distribution with respect to Preferred Securities held by the Clearing Agency
or its nominee, and, (iii) any Trust Securities Certificates not held by the
Clearing Agency for the Preferred Securities or its nominee as specified in
clause (ii) above will be deemed to represent Junior Subordinated Debentures
having a principal amount equal to the stated Liquidation Amount of the Trust
Securities represented thereby and bearing accrued and unpaid interest in an
amount equal to the accumulated and unpaid Distributions on such Trust
Securities until such certificates are presented to the Securities Registrar
for transfer or reissuance.
(d) If, notwithstanding the other provisions of this Section 9.4,
whether because of an order for dissolution entered by a court of competent
jurisdiction or otherwise, distribution of the Junior Subordinated Debentures
is not practical, or if any Early Termination Event specified in clause (c)
of Section 9 occurs, the Trust Property shall be liquidated, and the Issuer
Trust shall be dissolved, wound-up or terminated, by the Property Trustee in
such manner as the Property Trustee determines. In such event, on the date
of the dissolution, winding-up or other termination of the Issuer Trust,
Holders will be entitled to receive out of the assets of the Issuer Trust
available for distribution to Holders, after satisfaction of liabilities to
creditors of the Issuer Trust as provided by applicable law, an amount equal
to the aggregate of Liquidation Amount per Trust Security plus accumulated
and unpaid Distributions thereon to the date of payment (such amount being
the "Liquidation Distribution"). If, upon any such dissolution, winding-up
or termination, the Liquidation Distribution can be paid only in part because
the Issuer Trust has insufficient assets available to pay in full the
aggregate Liquidation Distribution, then, subject to the next succeeding
sentence, the amounts payable by the Issuer Trust on the Trust Securities
shall be paid on a pro rata basis (based upon Liquidation Amounts). The
Holders of the Common Securities will be entitled to receive Liquidation
Distributions upon any such dissolution, winding-up or termination pro rata
(determined as aforesaid) with Holders of Preferred Securities, except that,
if a Debenture Event of Default has occurred and is continuing, the Preferred
Securities shall have a priority over the Common Securities as provided in
Section 4.3.
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SECTION 9.5. Mergers, Consolidations, Amalgamations or Replacements of
the Issuer Trust.
The Issuer Trust may not merge with or into, consolidate, amalgamate,
or be replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to, any entity, except pursuant to this Section
9.5. At the request of the Holders of the Common Securities, and with the
consent of the Holders of at least a Majority in Liquidation Amount of the
Preferred Securities, the Issuer Trust may merge with or into, consolidate,
amalgamate, or be replaced by or convey, transfer or lease its properties and
assets substantially as an entirety to a trust organized as such under the
laws of any State; provided, however, that (i) such successor entity either
(a) expressly assumes all of the obligations of the Issuer Trust with respect
to the Preferred Securities or (b) substitutes for the Preferred Securities
other securities having substantially the same terms as the Preferred
Securities (the "Successor Securities") so long as the Successor Securities
have the same priority as the Preferred Securities with respect to
distributions and payments upon liquidation, redemption and otherwise, (ii) a
trustee of such successor entity possessing the same powers and duties as the
Property Trustee is appointed to hold the Junior Subordinated Debentures,
(iii) such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease does not cause the Preferred Securities (including any
Successor Securities) to be downgraded by any nationally recognized
statistical rating organization, (iv) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not adversely
affect the rights, preferences and privileges of the holders of the Preferred
Securities (including any Successor Securities) in any material respect, (v)
such successor entity has a purpose substantially identical to that of the
Issuer Trust, (vi) prior to such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, the Issuer Trustee has received
an Opinion of Counsel from independent counsel 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 Preferred Securities
(including any Successor Securities) in any material respect, and (b)
following such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease, neither the Issuer Trust nor such successor entity will be
required to register as an "investment company" under the Investment Company
Act and (vii) the Depositor or any permitted transferee to whom it has
transferred the Common Securities hereunder own all of the Common Securities
of such successor entity and guarantees the obligations of such successor
entity under the Successor Securities at least to the extent provided by the
Guarantee Agreement. Notwithstanding the foregoing, the
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Issuer Trust shall not, except with the consent of holders of 100% in
Liquidation Amount of the Preferred 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 Issuer Trust or the successor
entity to be taxable as a corporation for United States Federal income tax
purposes.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. Limitation of Rights of Holders.
Except as set forth in Section 9.2, the death or incapacity of any
person having an interest, beneficial or otherwise, in Trust Securities shall
not operate to terminate this Trust Agreement, nor entitle the legal
representatives or heirs of such person or any Holder for such person, to
claim an accounting, take any action or bring any proceeding in any court for
a partition or winding-up of the arrangements contemplated hereby, nor
otherwise affect the rights, obligations and liabilities of the parties
hereto or any of them. Any merger or similar agreement shall be executed by
the Administrators on behalf of the Trust.
SECTION 10.2. Amendment.
(a) This Trust Agreement may be amended from time to time by the
Property Trustee and the Holders of a Majority in Liquidation Amount of the
Common Securities, without the consent of any Holder of the Preferred
Securities (i) to cure any ambiguity, correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to make
any other provisions with respect to matters or questions arising under this
Trust Agreement, provided, however, that such amendment shall not adversely
affect in any material respect the interests of any Holder or (ii) to modify,
eliminate or add to any provisions of this Trust Agreement to such extent as
shall be necessary to ensure that the Issuer Trust will not be taxable as a
corporation for United States Federal income tax purposes at any time that
any Trust Securities are Outstanding or to ensure that the Issuer Trust will
not be required to register as an investment company under the Investment
Company Act.
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(b) Except as provided in Section 10.2(c) hereof, any provision of
this Trust Agreement may be amended by the Property Trustee and the Holders
of a Majority in Liquidation Amount of the Common Securities with (i) the
consent of Holders of at least a Majority in Liquidation Amount of the
Preferred Securities and (ii) receipt by the Issuer Trustees of an Opinion of
Counsel to the effect that such amendment or the exercise of any power
granted to the Issuer Trustees in accordance with such amendment will not
cause the Issuer Trust to be taxable as a corporation for United States
federal income tax purposes or affect the Issuer Trust's exemption from
status of an "investment company" under the Investment Company Act.
(c) In addition to and notwithstanding any other provision in this
Trust Agreement, without the consent of each affected Holder (such consent
being obtained in accordance with Section 6.3 or 6.6 hereof), this Trust
Agreement may not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely affect the amount
of any Distribution required to be made in respect of the Trust Securities as
of a specified date or (ii) restrict the right of a Holder to institute suit
for the enforcement of any such payment on or after such date.
(d) Notwithstanding any other provisions of this Trust Agreement, no
Issuer Trustee shall enter into or consent to any amendment to this Trust
Agreement which would cause the Issuer Trust to fail or cease to qualify for
the exemption from status as an "investment company" under the Investment
Company Act or be taxable as a corporation for United States Federal income
tax purposes.
(e) Notwithstanding anything in this Trust Agreement to the contrary,
without the consent of the Depositor and the Administrators, this Trust
Agreement may not be amended in a manner which imposes any additional
obligation on the Depositor or the Administrators.
(f) In the event that any amendment to this Trust Agreement is made,
the Administrators or the Property Trustee shall promptly provide to the
Depositor a copy of such amendment.
(g) Neither the Property Trustee nor the Delaware Trustee shall be
required to enter into any amendment to this Trust Agreement which affects
its own rights, duties or immunities under this Trust Agreement. The
Property Trustee shall be entitled to receive an Opinion of Counsel and an
Officers' Certificate stating that any amendment to this Trust Agreement is
in compliance with this Trust Agreement.
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(h) Any amendments to this Trust Agreement shall become effective when
notice of such amendment is given to the holders of the Trust Securities.
SECTION 10.3. Separability.
In case any provision in this Trust Agreement or in the Trust
Securities Certificates shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
SECTION 10.4. Governing Law.
THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE
HOLDERS, THE ISSUER TRUST, THE DEPOSITOR, THE ISSUER TRUSTEES AND THE
ADMINISTRATORS WITH RESPECT TO THIS TRUST AGREEMENT AND THE TRUST SECURITIES
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE
OF DELAWARE.
SECTION 10.5. Payments Due on Non-Business Day.
If the date fixed for any payment on any Trust Security shall be a day
that is not a Business Day, then such payment need not be made on such date
but may be made on the next succeeding day that is a Business Day (except as
otherwise provided in Sections 4.2(d)), with the same force and effect as
though made on the date fixed for such payment, and no Distributions shall
accumulate on such unpaid amount for the period after such date.
SECTION 10.6. Successors.
This Trust Agreement shall be binding upon and shall inure to the
benefit of any successor to the Depositor, the Issuer Trust, the
Administrators and any Issuer Trustee, including any successor by operation
of law. Except in connection with a consolidation, merger or sale involving
the Depositor that is permitted under Article VIII of the Indenture and
pursuant to which the assignee agrees in writing to perform the Depositor's
obligations hereunder, the Depositor shall not assign its obligations
hereunder.
SECTION 10.7. Headings.
The Article and Section headings are for convenience only and shall not
affect the construction of this Trust Agreement.
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SECTION 10.8. Reports, Notices and Demands.
Any report, notice, demand or other communication that by any provision
of this Trust Agreement is required or permitted to be given or served to or
upon any Holder or the Depositor may be given or served in writing by deposit
thereof, first class postage prepaid, in the United States mail, hand
delivery or facsimile transmission, in each case, addressed, (a) in the case
of a Holder of Preferred Securities, to such Holder as such Holder's name and
address may appear on the Securities Register; and (b) in the case of the
Holder of Common Securities or the Depositor, to JeffBanks, Inc., 0000 Xxxxxx
Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, Attention: Office of the
Secretary, facsimile no.: (000) 000-0000 or to such other address as may be
specified in a written notice by the Depositor to the Property Trustee. Such
notice, demand or other communication to or upon a Holder shall be deemed to
have been sufficiently given or made, for all purposes, upon hand delivery,
mailing or transmission. Such notice, demand or other communication to or
upon the Depositor shall be deemed to have been sufficiently given or made
only upon actual receipt of the writing by the Depositor.
Any notice, demand or other communication which by any provision of
this Trust Agreement is required or permitted to be given or served to or
upon the Issuer Trust, the Property Trustee, the Delaware Trustee, the
Administrators, or the Issuer Trust shall be given in writing addressed
(until another address is published by the Issuer Trust) as follows: (a) with
respect to the Property Trustee to Bankers Trust Company, Four Xxxxxx Xxxxxx,
0xx Xxxxx, Xxx Xxxx, XX 00000, Attention: Corporate Trust and Agency Group
Corporate Market Services; (b) with respect to the Delaware Trustee to
Bankers Trust (Delaware), 0000 Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxxx 00000, Attention: ________________; and (c) with respect to the
Administrators, to them at the address above for notices to the Depositor,
marked "Attention: Office of the Secretary". Such notice, demand or other
communication to or upon the Issuer Trust or the Property Trustee shall be
deemed to have been sufficiently given or made only upon actual receipt of
the writing by the Issuer Trust, the Property Trustee, or such Administrator.
SECTION 10.9 Agreement Not to Petition.
Each of the Issuer Trustees, the Administrators and the Depositor agree
for the benefit of the Holders that, until at least one year and one day
after the Issuer Trust has been terminated in accordance with Article IX,
they shall not file, or join in the filing of, a petition against the Issuer
Trust under any bankruptcy, insolvency, reorganization or other
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similar law (including, without limitation, the United States Bankruptcy
Code) (collectively, "Bankruptcy Laws") or otherwise join in the commencement
of any proceeding against the Issuer Trust under any Bankruptcy Law. In the
event the Depositor takes action in violation of this Section 10.9, the
Property Trustee agrees, for the benefit of Holders, that at the expense of
the Depositor, it shall file an answer with the bankruptcy court or otherwise
properly contest the filing of such petition by the Depositor against the
Issuer Trust or the commencement of such action and raise the defense that
the Depositor has agreed in writing not to take such action and should be
estopped and precluded therefrom and such other defenses, if any, as counsel
for the Issuer Trustee or the Issuer Trust may assert. If any Issuer Trustee
or Administrator takes action in violation of this Section 10.9, the
Depositor agrees, for the benefit of the Holders, that at the expense of the
Depositor, it shall file an answer with the bankruptcy court or otherwise
properly contest the filing of such petition by such Person against the
Depositor or the commencement of such action and raise the defense that such
Person has agreed in writing not to take such action and should be estopped
and precluded therefrom and such other defenses, if any, as counsel for the
Issuer Trustee or the Issuer Trust may assert. The provisions of this
Section 10.9 shall survive the termination of this Trust Agreement.
SECTION 10.10. Trust Indenture Act; Conflict with Trust Indenture Act.
(a) Trust Indenture Act; Application. (i) This Trust Agreement is
subject to the provisions of the Trust Indenture Act that are required to be
a part of this Trust Agreement and shall, to the extent applicable, be
governed by such provisions; (ii) if and to the extent that any provision of
this Trust Agreement limits, qualifies or conflicts with the duties imposed
by 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties
shall control; (iii) for purposes of this Trust Agreement, the Property
Trustee, to the extent permitted by applicable law and/or the rules and
regulations of the Commission, shall be the only Issuer Trustee which is a
trustee for the purposes of the Trust Indenture Act; and (iv) the application
of the Trust Indenture Act to this Trust Agreement shall not affect the
nature of the Preferred Securities and the Common Securities as equity
securities representing undivided beneficial interests in the assets of the
Issuer Trust.
(b) Lists of Holders of Preferred Securities. (i) Each of the
Depositor and the Administrators on behalf of the Trust shall provide the
Property Trustee with such information as is required under Section 312(a) of
the Trust Indenture Act at the times and in the manner provided in Section
312(a) and (ii) the Property
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Trustee shall company with its obligations under Sections 310(b), 311
and 312(b) of the Trust Indenture Act.
(c) Reports by the Property Trustee. Within 60 days after [May 15] of
each year, the Property Trustee shall provide to the Holders of the Trust
Securities such reports as are required by Section 313 of the Trust Indenture
Act, if any, in the form, in the manner and at the times 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.
(d) Periodic Reports to Property Trustee. Each of the Depositor and
the Administrators on behalf of the Issuer Trust shall provide to the
Property Trustee, the Commission and the Holders of the Trust Securities, as
applicable, such documents, reports and information as required by Section
314(a)(1) - (3) (if any) of the Trust Indenture Act and the compliance
certificates required by Section 314(a)(4) and (c) of the Trust Indenture Act
(provided that any certificate to be provided pursuant to 314(a)(4) of the
Trust Indenture Act shall be provided within 120 days of the end of each
fiscal year of the Issuer Trust.
(e) Evidence of Compliance with Conditions Precedent. Each of the
Depositor and the Administrators on behalf of the Issuer Trust shall provide
to the Property Trustee such evidence of compliance with any conditions
precedent, if any, provided for in this Trust Agreement which 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 pursuant to Section 314(c) shall
comply with Section 314(e) of the Trust Indenture Act.
(f) Disclosure of Information. The disclosure of information as to
the names and addresses of the Holders of Trust Securities in accordance with
Section 312 of the Trust Indenture Act, regardless of the source from which
such information was derived, shall not be deemed to be a violation of any
existing law or any law hereafter enacted which does not specifically refer
to Section 312 of the Trust Indenture Act, nor shall the Property Trustee be
held accountable by reason of mailing any material pursuant to a request made
under Section 312(b) of the Trust Indenture Act.
SECTION 10.11. Acceptance of Terms of Trust Agreement, Guarantee and
Indenture.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN
BY OR ON BEHALF OF A HOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY SIGNATURE OR
FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL
ACCEPTANCE BY THE HOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN SUCH
TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT, THE
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GUARANTEE AGREEMENT AND THE INDENTURE, AND THE AGREEMENT TO THE SUBORDINATION
PROVISIONS AND OTHER TERMS OF THE GUARANTEE AGREEMENT AND THE INDENTURE, AND
SHALL CONSTITUTE THE AGREEMENT OF THE ISSUER TRUST, SUCH HOLDER AND SUCH
OTHERS THAT THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT SHALL BE
BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE ISSUER TRUST AND SUCH HOLDER
AND SUCH OTHERS.
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JEFFBANKS, INC.
as Depositor
By:
----------------------------------
Name:
Title:
BANKERS TRUST COMPANY,
as Property Trustee
By:
----------------------------------
Name:
Title:
BANKERS TRUST (DELAWARE),
as Delaware Trustee and not
in its individual capacity
By:
----------------------------------
Name:
Title:
Subscribed to and Accepted by,
as the Initial Administrators:
-----------------------------
[Name]
-----------------------------
[Name]
78
EXHIBIT A
[INSERT CERTIFICATE OF TRUST FILED WITH DELAWARE]
79
EXHIBIT B
[INSERT FORM OF CERTIFICATE DEPOSITARY AGREEMENT]
80
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT TO THE
DEPOSITOR OR AN AFFILIATE OF THE DEPOSITOR
IN COMPLIANCE WITH APPLICABLE LAW AND
SECTION 5.11 OF THE TRUST AGREEMENT
Certificate Number Number of Common Securities
C-__
Certificate Evidencing Common Securities
of
JeffBanks Capital Trust I
___ % Common Securities
(liquidation amount $25 per Common Security)
JeffBanks Capital Trust I, a statutory business trust formed under
the laws of the State of Delaware (the "Issuer Trust"), hereby certifies
that JeffBanks, Inc. (the "Holder") is the registered owner of _________
(_____) common securities of the Issuer Trust representing undivided
beneficial interests in the Issuer Trust and has designated the ____%
Common Securities (liquidation amount $25 per Common Security) (the
"Common Securities"). Except in accordance with Section 5.11 of the Trust
Agreement (as defined below) the Common Securities are not transferable
and any attempted transfer hereof other than in accordance therewith shall
be void. The designations, rights, privileges, restrictions, preferences
and other terms and provisions of the Common Securities are set forth in,
and this certificate and the Common Securities represented hereby are
issued and shall in all respects be subject to the terms and provisions
of, the Amended and Restated Trust Agreement of the Issuer Trust, dated as
of January __, 1997, as the same may be amended from time to time (the
"Trust Agreement") among JeffBanks, Inc, as Depositor, Bankers Trust
Company, as Property Trustee, Bankers Trust (Delaware), as Delaware
Trustee, and the Holders of Trust Securities, including the designation of
the terms of the Common Securities as set forth therein. The Issuer Trust
will furnish a copy of the Trust Agreement to the Holder without charge
upon
81
written request to the Issuer Trust at its principal place of business or
registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
Terms used but not defined herein have the meanings set forth in
the Trust Agreement.
IN WITNESS WHEREOF, one of the Administrators of the Issuer Trust
has executed this certificate this ___ day of ______________, ____.
JEFFBANKS CAPITAL TRUST I
By:
---------------------------------
Name:
Administrator
COUNTERSIGNED AND REGISTERED:
BANKERS TRUST COMPANY,
as Securities Registrar
By:
-------------------------
Name:
Authorized Officer
82
EXHIBIT D
[IF THE PREFERRED SECURITIES CERTIFICATE IS TO BE A GLOBAL
PREFERRED SECURITIES CERTIFICATE, INSERT -- This Preferred Securities
Certificate is a Global Preferred Securities Certificate within the
meaning of the Trust Agreement hereinafter referred to and is registered
in the name of a Depositary or a nominee of a Depositary. This Preferred
Security Certificate is exchangeable for Preferred Securities Certificates
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 may not be transferred except 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, except in the limited
circumstances described in the Trust Agreement.
Unless this Preferred Security Certificate is presented by an
authorized representative of The Depository Trust Company, a New York
Corporation ("DTC"), to JeffBanks Capital Trust I or its agent for
registration of transfer, exchange or payment, and any Preferred Security
Certificate issued is registered in the name of such nominee as is
requested by an authorized representative of DTC (and any payment is made
to such entity as is requested by an authorized representative of DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO A
PERSON IS WRONGFUL inasmuch as the registered owner hereof, has an
interest herein.]
NO EMPLOYEE BENEFIT OR OTHER PLAN OR INDIVIDUAL RETIREMENT ACCOUNT
SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE") (EACH, A "PLAN"), NO ENTITY WHOSE UNDERLYING
ASSETS INCLUDE "PLAN ASSETS" BY REASON OF ANY PLAN'S INVESTMENT IN THE
ENTITY (A "PLAN ASSET ENTITY"), AND NO PERSON INVESTING "PLAN ASSETS" OF
ANY PLAN, MAY ACQUIRE OR HOLD THIS PREFERRED SECURITIES CERTIFICATE OR ANY
INTEREST HEREIN, UNLESS SUCH PURCHASE OR HOLDING IS COVERED BY THE
EXEMPTIVE RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF LABOR PROHIBITED
TRANSACTION CLASS EXEMPTION ("PTCE") 96-23, 95-60, 91-38, 90-1 OR 84-14 OR
ANOTHER APPLICABLE EXEMPTION WITH RESPECT TO SUCH PURCHASE OR HOLDING AND,
IN THE CASE OF ANY PURCHASER OR HOLDER RELYING ON ANY EXEMPTION OTHER THAN
83
PTCE 96-23, 95-60, 91-38, 90-1 OR 84-14, HAS COMPLIED WITH ANY REQUEST BY
THE DEPOSITOR OR THE ISSUER TRUST FOR AN OPINION OF COUNSEL OR OTHER
EVIDENCE WITH RESPECT TO THE APPLICABILITY OF SUCH EXEMPTION. ANY
PURCHASER OR HOLDER OF THIS PREFERRED SECURITIES CERTIFICATE OR ANY
INTEREST HEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND
HOLDING HEREOF THAT EITHER (A) THE PURCHASER AND HOLDER ARE NOT A PLAN OR
A PLAN ASSET ENTITY AND IS NOT PURCHASING SUCH SECURITIES ON BEHALF OF OR
WITH "PLAN ASSETS" OF ANY PLAN, OR (B) THE PURCHASE AND HOLDING OF THE
PREFERRED SECURITIES IS COVERED BY THE EXEMPTIVE RELIEF PROVIDED BY PTCE
96-23, 95-60, 91-38, 90-1 OR 84-14 OR ANOTHER APPLICABLE EXEMPTION.
Certificate Number Number of Preferred Securities
P-__
CUSIP NO. _____________
Certificate Evidencing Preferred Securities
of
JeffBanks Capital Trust I
______% Preferred Securities
(liquidation amount $25 per Preferred Security)
JeffBanks Capital Trust I, a statutory business trust formed under
the laws of the State of Delaware (the "Issuer Trust"), hereby certifies
that ____________________ (the "Holder") is the registered owner of)
_______________(_____) preferred securities of the Trust representing a
preferred undivided beneficial interest in the assets of the Issuer Trust
and has designated the JeffBanks Capital Trust I ____% Preferred
Securities (liquidation amount $25 per Preferred Security) (the "Preferred
Securities"). The Preferred Securities are transferable on the books and
records of the Issuer 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 Section 5.5 of the Trust Agreement (as defined
below). The designations, rights, privileges, restrictions, preferences
and other terms and provisions of the Preferred Securities are set forth
in, and this
84
certificate and the Preferred Securities represented hereby are issued and
shall in all respects be subject to the terms and provisions of, the
Amended and Restated Trust Agreement of the Issuer Trust, dated as of
January __, 1997, as the same may be amended from time to time (the "Trust
Agreement"), among JeffBanks, Inc., as Depositor, Bankers Trust Company,
as Property Trustee, Bankers Trust (Delaware), as Delaware Trustee, and
the Holders of Trust Securities, including the designation of the terms of
the Preferred Securities as set forth therein. The Holder is entitled to
the benefits of the Guarantee Agreement entered into by JeffBanks, Inc., a
Pennsylvania corporation, and Bankers Trust Company, as guarantee trustee,
dated as of January __, 1997 (the "Guarantee Agreement"), to the extent
provided therein. The Issuer Trust will furnish a copy of the Issuer
Trust Agreement and the Guarantee Agreement to the Holder without charge
upon written request to the Issuer Trust at its principal place of
business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrators of the Issuer Trust
has executed this certificate this day of , .
JEFFBANKS CAPITAL TRUST I
By:
---------------------------------
Name:
Administrator
COUNTERSIGNED AND REGISTERED:
BANKERS TRUST COMPANY,
as Securities Registrar
By:
-------------------------
Name:
Authorized Officer
85
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Preferred Security to:
--------------------------------------------------------
(Insert assignee's social security or tax
identification number)
--------------------------------------------------------
--------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
-------------------------------
--------------------------------------------------------
agent to transfer this Preferred Security Certificate on the books of the
Issuer Trust. The agent may substitute another to act for him or her.
Date:
-------------------
Signature:
-----------------------------------------
(Sign exactly as your name appears on
the other side of this Preferred Security
Certificate)
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant
to S.E.C. Rule 17Ad-15.
