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EXHIBIT 4.3
AMENDED AND RESTATED
TRUST AGREEMENT
among
NATIONAL PENN BANCSHARES, INC., as Depositor,
BANKERS TRUST COMPANY
as Property Trustee,
and
BANKERS TRUST (DELAWARE),
as Delaware Trustee
Dated as of May __, 1997
NPB CAPITAL TRUST
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NPB CAPITAL TRUST
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)..................... 10.10(b)
(b)..................... 10.10(b), (f)
(c)..................... 5.7
Section 313 (a)..................... 8.15(a)
(a)(4).................. 10.10(c)
(b)..................... 8.15(c), 10.10(c)
(c)..................... 10.8, 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)..................... 8.1(d)
(b)..................... 8.2
(c)..................... 8.1(c)
(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
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ARTICLE I. DEFINED TERMS
SECTION 1.1. Definitions............................ 2
ARTICLE II. CONTINUATION OF THE ISSUER TRUST
SECTION 2.1. Name................................... 14
SECTION 2.2. Office of the Delaware Trustee;
Principal Place of Business.......... 14
SECTION 2.3. Initial Contribution of Trust Property,
Organizational Expenses.............. 14
SECTION 2.4. Issuance of Preferred Securities....... 15
SECTION 2.5. Issuance of the Common Securities;
Subscription and Purchase of Junior
Subordinated Debentures.............. 15
SECTION 2.6. Declaration of Trust................... 16
SECTION 2.7. Authorization to Enter into Certain
Transactions......................... 16
SECTION 2.8. Assets of Trust........................ 20
SECTION 2.9. Title to Trust Property................ 20
ARTICLE III. PAYMENT ACCOUNT
SECTION 3.1. Payment Account........................ 20
ARTICLE IV. DISTRIBUTIONS; REDEMPTION
SECTION 4.1. Distributions.......................... 21
SECTION 4.2. Redemption............................. 22
SECTION 4.3. Subordination of Common Securities..... 25
SECTION 4.4. Payment Procedures..................... 26
SECTION 4.5. Tax Returns and Reports................ 26
SECTION 4.6. Payment of Taxes, Duties, Etc.
of the Issuer Trust.................. 27
SECTION 4.7. Payments under Indenture or Pursuant
to Direct Actions.................... 27
SECTION 4.8. Liability of the Holder of Common
Securities........................... 27
ARTICLE V. TRUST SECURITIES CERTIFICATES
SECTION 5.1. Initial Ownership...................... 27
SECTION 5.2. The Trust Securities Certificates...... 27
SECTION 5.3. Execution and Delivery of Trust
Securities Certificates.............. 28
SECTION 5.4. Global Preferred Security.............. 28
SECTION 5.5. Registration of Transfer and Exchange
Generally; Certain Transfers and
Exchanges; Preferred Securities
Certificates......................... 30
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SECTION 5.6. Mutilated, Destroyed, Lost or Stolen
Trust Securities Certificates........ 32
SECTION 5.7. Persons Deemed Holders................. 32
SECTION 5.8. Access to List of Holders'
Names and Addresses.................... 32
SECTION 5.9. Maintenance of Office or Agency........ 33
SECTION 5.10. Appointment of Paying Agent............ 33
SECTION 5.11. Ownership of Common Securities
by Depositor......................... 34
SECTION 5.12. Notices to Clearing Agency............. 34
SECTION 5.13. Rights of Holders...................... 34
ARTICLE VI. ACTS OF HOLDERS; MEETINGS; VOTING
SECTION 6.1. Limitations on Holder's Voting
Rights.............................. 37
SECTION 6.2. Notice of Meetings..................... 38
SECTION 6.3. Meetings of Holders.................... 38
SECTION 6.4. Voting Rights.......................... 39
SECTION 6.5. Proxies, etc........................... 39
SECTION 6.6. Holder Action by Written Consent....... 39
SECTION 6.7 Record Date for Voting and Other
Purposes............................. 40
SECTION 6.8. Acts of Holders........................ 40
SECTION 6.9. Inspection of Records.................. 41
ARTICLE VII. REPRESENTATIONS AND WARRANTIES
SECTION 7.1. Representations and Warranties
of the Property Trustee and
the Delaware Trustee................. 41
SECTION 7.2. Representations and Warranties of
Depositor............................ 43
ARTICLE VIII. THE ISSUER TRUSTEES; THE ADMINISTRATORS
SECTION 8.1. Certain Duties and Responsibilities.... 44
SECTION 8.2. Certain Notices........................ 47
SECTION 8.3. Certain Rights of Property Trustee..... 47
SECTION 8.4. Not Responsible for Recitals
or Issuance of Securities............ 49
SECTION 8.5. May Hold Securities.................... 49
SECTION 8.6. Compensation; Indemnity; Fees.......... 49
SECTION 8.7. Corporate Property Trustee Required;
Eligibility of Trustees and
Administrators....................... 51
SECTION 8.8. Conflicting Interests.................. 51
SECTION 8.9. Co-Trustees and Separate Trustee....... 52
SECTION 8.10. Resignation and Removal; Appointment
of Successor......................... 53
SECTION 8.11. Acceptance of Appointment by
Successor.............................. 55
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SECTION 8.12. Merger, Conversion, Consolidation or
Succession to Business............... 55
SECTION 8.13. Preferential Collection of Claims
Against Depositor or Issuer Trust.... 56
SECTION 8.14. Trustee May File Proofs of Claims...... 56
SECTION 8.15. Reports by Property Trustee............ 57
SECTION 8.16. Reports to the Property Trustee........ 57
SECTION 8.17. Evidence of Compliance with Conditions
Precedent............................ 58
SECTION 8.18. Number of Issuer Trustees.............. 58
SECTION 8.19. Delegation of Power.................... 58
SECTION 8.20. Appointment of Administrators.......... 58
ARTICLE IX. DISSOLUTION, LIQUIDATION AND MERGER
SECTION 9.1. Dissolution Upon Expiration Date....... 59
SECTION 9.2. Early Termination...................... 59
SECTION 9.3. Dissolution............................ 60
SECTION 9.4. Liquidation............................ 60
SECTION 9.5. Mergers, Consolidations, Amalgamations
or Replacements of the Issuer Trust.. 62
ARTICLE X. MISCELLANEOUS PROVISIONS
SECTION 10.1. Limitation of Rights of Holders........ 63
SECTION 10.2. Amendment.............................. 64
SECTION 10.3. Separability........................... 65
SECTION 10.4. Governing Law.......................... 65
SECTION 10.5. Payments Due on Non-Business Day....... 65
SECTION 10.6. Successors............................. 66
SECTION 10.7. Headings............................... 66
SECTION 10.8. Reports, Notices and Demands........... 66
SECTION 10.9. Agreement Not to Petition.............. 67
SECTION 10.10. Trust Indenture Act; Conflict with
Trust Indenture Act.................. 67
SECTION 10.11. Acceptance of Terms of Trust Agreement,
Guarantee and Indenture.............. 69
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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AGREEMENT
Amended and Restated Trust Agreement, dated as of May __,
1997, among (i) National Penn Bancshares, 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 May ___, 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 May __, 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 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
Xxxx X. Xxxxxx and Xxxxxx X. Xxxxx.
"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, 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
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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, New
York or in the City of _______, Pennsylvania 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 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, provided, however, that it
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shall not be deemed to be a Capital Treatment Event if the Company is
not entitled to treat the aggregate amount of the Liquidation Amount of
such Preferred Securities as "Tier 1 Capital" due to the restriction
imposed by the Federal Reserve that no more than 25% of Tier 1 Capital
can consist of perpetual preferred stock.
"Certificate Depositary Agreement" means the agreement among the
Issuer Trust, the Depositor and the Depository Trust Company ("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. 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 Exchange Act 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 the City of New York, New York, which at
the time of the execution of this Trust Agreement is located at
00
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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. 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.
"DTC" means the Depository Trust Company.
"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
$35,000,000 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
May __, 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 Act" means the Investment Company Act
of 1940, as amended.
"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 NPB Capital Trust.
"Issuer Trustees" means, collectively, the Property Trustee
and the Delaware Trustee.
"Junior Subordinated Debentures" means the aggregate principal
amount of the Depositor's ____% junior subordinated deferrable interest
debentures issued pursuant to the Indenture, due June __, 2027, which
date may be shortened once at any time by the Company to any date not
earlier than June ___, 2002, subject to the Company having received
prior approval of the Federal Reserve Board of Governors of the Federal
Reserve System (the "Federal Reserve") if then required under
applicable capital guidelines or policies of the Federal Reserve.
"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
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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 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 dissolution 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 Chief Financial Officer, 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 brief statement of the nature and scope of the
examination or investigation undertaken by such officer in
rendering the Officers' Certificate;
(c) 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
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(d) 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.
"Option Closing Date" shall have the meaning provided in
the Underwriting Agreement.
"Option Securities" means an aggregate Liquidation Amount of
$5,250,000 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, any
Issuer Trustee, any Administrator or any Affiliate of the Depositor
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
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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
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.
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"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 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
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beneficial interest in the Issuer Trust as the mutilated, destroyed,
lost or stolen Preferred Securities Certificate.
"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,
either (i) with respect to the Firm Securities or Common Securities, on
the third Business Day (unless postponed in accordance with the
provisions of Section 9 of the Underwriting Agreement) following the
date of execution of the Underwriting Agreement, or such other time not
later than ten Business Days after such date 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.
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"Trust Property" means (a) the Junior Subordinated Debentures,
(b) any cash on deposit in, or owing to, the Payment Account, and (c)
all proceeds and rights in respect of the foregoing and 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 May __, 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 "NPB Capital
Trust", 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: Xxxx Xxxxxxx, 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 National Penn Bancshares, Inc.,
[________________], _______, Pennsylvania [_____], 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 reasonable 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 May 2, 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 5.3 and deliver to the Underwriter, Firm
Securities Certificates, registered in the names requested by the
Underwriter, in an aggregate amount of 1,400,000 Firm Securities having
an aggregate Liquidation Amount of $35,000,000, against receipt of the
aggregate purchase price of such Preferred Securities of $35,000,000,
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 210,000
Option Securities having an aggregate Liquidation Amount of $5,250,000,
against receipt of the aggregate purchase price of such Option
Securities of $5,250,000, 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 43,299 Common Securities having an aggregate Liquidation
Amount of $1,082,475 against receipt of the aggregate purchase price of
such Common Securities of $1,082,475 by the Property Trustee. In the
event of any exercise of an over-allotment option requiring issuance of
additional Preferred
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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 with the executions, and deliveries of
Common Securities Certificates and any Preferred Securities
Certificates, an Administrator, on behalf of the Issuer Trust, shall
subscribe for and purchase from the Depositor corresponding amounts of
Junior Subordinated Debentures, registered in the name of the Property
Trustee and having an aggregate principal amount equal to $36,082,475
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 $5,412,375 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 $36,082,475 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 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 Property Trustee or the Administrators set
forth herein. The
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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 or upon the Nasdaq
National Market 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) assist with the preparation 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 series of transactions subject to the
registration requirements of the Securities Act.
(F) 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:
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(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated
Debentures;
(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; and
(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); 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.
(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 investments or engage in any activities not authorized
by this Trust Agreement, (ii)
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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, and the
execution and delivery 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 subject to 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;
(iv) the taking of any other actions necessary or
desirable to carry out any of the foregoing activities; and
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(v) compliance with the listing requirements of the
Preferred Securities upon such securities exchange or exchanges,
or upon the Nasdaq National Market, 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.
(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
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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 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
Distributions of Additional Amounts) will be made on the Trust
Securities at the rate and on the dates that payments of interest
(including payments 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 May __, 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 March 31, June 30, September 30 and December 31 of each year,
commencing on September 30, 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 four. 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 June __, 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 four (4). 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.
(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 15th day of March, June, September or December (whether
or not a Business Day).
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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
(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
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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 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
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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
particular Preferred Securities to be redeemed shall be selected not
more than 60 days prior to the Redemption Date by the Property Trustee
from the Outstanding Preferred Securities not previously called for
redemption in such a manner as the Property Trustee shall deem fair and
appropriate.
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
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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.
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
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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.
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 or facsimile signature of at least
one Administrator except as provided in Section 5.3. Trust Securities
Certificates bearing the manual signatures of
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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 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 Trust, executed by the Administrators thereof, without further
corporate action by the Trust, 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.
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(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
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 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
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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 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, the Securities Registrar nor the Depositor 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.
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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 at such office or
agency. Whenever any securities are so surrendered for exchange, the
Property Trustee shall execute 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
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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.
(iii) Exchanges Between Global Preferred Security and
Non-Global Preferred Security. A beneficial interest in a Global
Preferred Security may be exchanged for a Preferred 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, the Securities Registrar or the Depositor
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, the Securities Registrar nor the
Depositor 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 until such
sums shall be
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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) a transfer 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 A
SUCCESSOR IN INTEREST 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 Securities shall be personal property giving only the rights
specifically set
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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 the Debenture
Trustee and the Property Trustee, their agents and counsel;
and
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(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 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
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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 5.8 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 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
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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 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 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
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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 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.
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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.
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
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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.
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.
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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.
(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.
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(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, and, subject to payment
therefor, 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
(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.
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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 or them. 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 his or its own negligent action, his or its own negligent failure
to act, or his 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 his or 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. Each Holder, by his or its acceptance
of a Trust Security, agrees that he or it will look solely to the
revenue and proceeds from the Trust Property to the extent legally
available for distribution to it or him as herein provided and that
neither the Issuer Trustees nor the Administrators are personally
liable to it or him 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
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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 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;
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(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
any of its rights or powers, if the Property Trustee shall
have reasonable grounds for believing that the repayment of
such funds or
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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 any
financing or continuation statement or any filing under tax or
securities laws) or any re-recording, refiling or reregistration
thereof;
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(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; 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(e) 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 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
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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.
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);
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(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, 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 dissolution 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 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
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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 (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.
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(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.
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.
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(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.
(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
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requirements its expenses and charges to serve as the successor 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 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 Relevant Trustee shall resign, it shall appoint its
successor. If a resigning Relevant Trustee shall fail to appoint a
successor, or if a Relevant 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 Trustee or Trustees, and such successor Issuer Trustee
shall comply with the applicable requirements of Section 8.11. If no
successor 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 himself and all others similarly
situated, or any other Issuer Trustee, may petition any court in the
State of Delaware for the appointment of a successor Trustee.
The Property Trustee shall give notice of each resignation and
each removal of an a Relevant 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 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
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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 Trustee, the
retiring Relevant Trustee and each such successor Trustee with respect
to the Trust Securities shall execute, acknowledge and deliver an
amendment hereto wherein each successor 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 Trustee all the rights, powers, trusts and duties of the
retiring 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 Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and
duties of the Relevant Trustee; but, on request of the Issuer Trust or
any successor Trustee such Relevant Trustee shall duly assign, transfer
and deliver to such successor Trustee all Trust Property, all proceeds
thereof and money held by such Relevant Trustee hereunder with respect
to the Trust Securities and the Trust.
Upon request of any such successor Trustee, the Issuer Trust
shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights,
powers and trusts referred to in the first or second preceding
paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor 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
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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:
(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.
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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.
(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
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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.
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 (other than the initial Administrators)
shall be appointed by the Holders of a Majority in Liquidation Amount
of the Common Securities and all Administrators (including the initial
Administrators) may be removed by the
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Holders of a Majority in Liquidation Amount of the Common Securities or
may resign at any time. 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 satisfies the eligibility requirement for
Administrators or Delaware Trustee, as the case may be, set forth in
Section 8.7).
(d) Except as otherwise provided in this Trust Agreement, or by
applicable law, any one Administrator may execute any document or
otherwise take any action which the Administrators are authorized to
take under this Trust Agreement.
ARTICLE IX
DISSOLUTION, LIQUIDATION AND MERGER
SECTION 9.1. Dissolution Upon Expiration Date.
Unless earlier dissolved, the Issuer Trust shall automatically
dissolve on June __, 2028 (the "Expiration Date"), following the
distribution of the Trust Property in accordance with Section 9.4.
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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 dissolve 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. Dissolution.
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 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, (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 and (d) the filing of a certificate of cancellation with
the Delaware Secretary of State pursuant to section 3810 of the
Delaware Business Trust Act.
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
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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.
(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.
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(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 by the
Property Trustee in such manner as the Property Trustee determines. In
such event, on the date of the dissolution 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, 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
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.
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
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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 if the Preferred
Securities were rated by any nationally recognized statistical rating
organization immediately prior to such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease, (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 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.
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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.
(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.
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(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.
(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.
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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.
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 National Penn Bancshares, Inc.,
[________________], _______, Pennsylvania [______], Attention: Office
of the Secretary, facsimile no.: (215) [___-____] 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
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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: Xx. Xxxx Xxxxxxx; 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 dissolved 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 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
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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 Sections 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 Trustee shall comply
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 Section
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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 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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NATIONAL PENN BANCSHARES, 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:
_________________________________
Xxxx X. Xxxxxx
_________________________________
Xxxxxx X. Xxxxx
76
EXHIBIT A
[INSERT CERTIFICATE OF TRUST FILED WITH DELAWARE]
77
EXHIBIT B
[INSERT FORM OF CERTIFICATE DEPOSITARY AGREEMENT]
78
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-__ 31,299
Certificate Evidencing Common Securities
of
NPB Capital Trust
____% Common Securities
(liquidation amount $25 per Common Security)
NPB Capital Trust, a statutory business trust formed under
the laws of the State of Delaware (the "Issuer Trust"), hereby
certifies that National Penn Bancshares, 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 May __, 1997,
as the same may be amended from time to time (the "Trust Agreement")
among National Penn Bancshares, 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 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.
79
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
______________, ____.
NPB CAPITAL TRUST
By:______________________________
Name:
Administrator
COUNTERSIGNED AND REGISTERED:
BANKERS TRUST COMPANY,
as Securities Registrar
By: ________________________
Name:
Signatory Officer
80
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 NPB Capital Trust 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.]
CERTIFICATE NUMBER NUMBER OF PREFERRED SECURITIES
P-__
CUSIP NO. ________________________
CERTIFICATE EVIDENCING PREFERRED SECURITIES
OF
NPB CAPITAL TRUST
____% PREFERRED SECURITIES
(LIQUIDATION AMOUNT $25 PER PREFERRED SECURITY)
NPB Capital Trust, 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
81
and has designated the NPB Capital Trust ____% 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 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 May __, 1997,
as the same may be amended from time to time (the "Trust Agreement"),
among National Penn Bancshares, 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 National Penn Bancshares, Inc., a Pennsylvania corporation, and
Bankers Trust Company, as guarantee trustee, dated as of May __, 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.
82
IN WITNESS WHEREOF, one of the Administrators of the Issuer
Trust has executed this certificate this day of , .
NPB CAPITAL TRUST
By:____________________________________
Name:
Administrator
COUNTERSIGNED AND REGISTERED:
BANKERS TRUST COMPANY,
as Securities Registrar
By:________________________________
Name:
Authorized Signatory
83
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.
