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EXHIBIT 4.4
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AMENDED AND RESTATED
TRUST AGREEMENT
Among
SUCCESS BANCSHARES, INC.
BANKERS TRUST COMPANY
as Property Trustee
and
BANKERS TRUST (DELAWARE)
as Delaware Trustee
dated as of
__________ __, 1998
SUCCESS CAPITAL TRUST I
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SUCCESS CAPITAL TRUST I
Certain Sections of this Junior Subordinated Indenture relating
to Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Junior Subordinated
Act Section Indenture 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).................................................................. 8.10.10(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)
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Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Trust Agreement.
TABLE OF CONTENTS
PAGE
AGREEMENT.........................................................................................................1
WITNESSETH........................................................................................................1
ARTICLE I DEFINED TERMS.......................................................................................1
SECTION 1.1. Definitions.......................................................................................1
ARTICLE II CONTINUATION OF SUCCESS CAPITAL....................................................................11
SECTION 2.1. Name.............................................................................................11
SECTION 2.2. Office of the Delaware Trustee; Principal Place of Business......................................11
SECTION 2.3. Initial Contribution of Trust Property, Organizational Expenses..................................12
SECTION 2.4. Issuance of the Preferred Securities.............................................................12
SECTION 2.5. Issuance of the Common Securities; Subscription and Purchase of Junior Subordinated Debentures...12
SECTION 2.6. Declaration of Trust.............................................................................13
SECTION 2.7. Authorization to Enter into Certain Transactions.................................................13
SECTION 2.8. Assets of Trust..................................................................................16
SECTION 2.9. Title to Trust Property..........................................................................16
ARTICLE III PAYMENT ACCOUNT...................................................................................16
SECTION 3.1. Payment Account..................................................................................16
ARTICLE IV DISTRIBUTIONS; REDEMPTION..........................................................................17
SECTION 4.1. Distributions....................................................................................17
SECTION 4.2. Redemption.......................................................................................18
SECTION 4.3. Subordination of Common Securities...............................................................20
SECTION 4.4. Payment Procedures...............................................................................20
SECTION 4.5. Tax Returns and Reports..........................................................................21
SECTION 4.6. Payment of Taxes; Duties, Etc. of Success Capital................................................21
SECTION 4.7. Payments under Indenture or Pursuant to Direct Actions...........................................21
SECTION 4.8. Liability of the Holder of Common Securities.....................................................22
ARTICLE V TRUST SECURITIES CERTIFICATES.......................................................................22
SECTION 5.1. Initial Ownership................................................................................22
SECTION 5.2. The Trust Securities Certificates................................................................22
SECTION 5.3. Execution and Delivery of Trust Securities Certificates..........................................22
SECTION 5.4. Global Preferred Security........................................................................23
SECTION 5.5. Registration of Transfer and Exchange Generally; Certain Transfers and Exchanges;
Preferred Securities Certificates ...........................................................24
SECTION 5.6. Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates...............................25
SECTION 5.7. Persons Deemed Holders...........................................................................26
SECTION 5.8. Access to List of Holders' Names and Addresses...................................................26
SECTION 5.9. Maintenance of Office or Agency..................................................................26
SECTION 5.10. Appointment of Paying Agent.....................................................................26
SECTION 5.11. Ownership of Common Securities by Depositor.....................................................27
SECTION 5.12. Notices to Clearing Agency......................................................................27
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SECTION 5.13. Rights of Holders...............................................................................28
ARTICLE VI ACTS OF HOLDERS; MEETINGS; VOTING..................................................................30
SECTION 6.1. Limitations on Holder's Voting Rights............................................................30
SECTION 6.2. Notice of Meetings...............................................................................31
SECTION 6.3. Meetings of Holders..............................................................................31
SECTION 6.4. Voting Rights....................................................................................31
SECTION 6.5. Proxies, etc.....................................................................................31
SECTION 6.6. Holder Action by Written Consent.................................................................32
SECTION 6.7. Record Date for Voting and Other Purposes........................................................32
SECTION 6.8. Acts of Holders.................................................................................32
SECTION 6.9. Inspection of Records............................................................................33
ARTICLE VII REPRESENTATIONS AND WARRANTIES....................................................................33
SECTION 7.1. Representations and Warranties of the Property Trustee and the Delaware Trustee..................33
SECTION 7.2. Representations and Warranties of Depositor......................................................35
ARTICLE VIII ISSUER TRUSTEES: THE ADMINISTRATIVE TRUSTEES....................................................35
SECTION 8.1. Certain Duties and Responsibilities..............................................................35
SECTION 8.2. Certain Notices..................................................................................37
SECTION 8.3. Certain Rights of Property Trustee...............................................................38
SECTION 8.4. Not Responsible for Recitals or Issuance of Securities...........................................39
SECTION 8.5. May Hold Securities..............................................................................39
SECTION 8.6. Compensation; Indemnity; Fees....................................................................39
SECTION 8.7 Corporate Property Trustee Required; Eligibility of Trustees......................................40
SECTION 8.8. Conflicting Interests............................................................................41
SECTION 8.9. Co-Trustees and Separate Trustee.................................................................41
SECTION 8.10. Resignation and Removal; Appointment of Successor...............................................43
SECTION 8.11. Acceptance of Appointment by Successor..........................................................44
SECTION 8.12. Merger, Conversion, Consolidation or Succession to Business.....................................44
SECTION 8.13. Preferential Collection of Claims Against Depositor or Success Capital..........................44
SECTION 8.14. Trustee May File Proofs of Claim................................................................44
SECTION 8.15. Reports by Property Trustee.....................................................................45
SECTION 8.16. Reports to the Property Trustee.................................................................46
SECTION 8.17. Evidence of Compliance with Conditions Precedent................................................46
SECTION 8.18. Number of Issuer Trustees.......................................................................46
SECTION 8.19. Delegation of Power.............................................................................46
SECTION 8.20. Appointment of Administrative Trustees..........................................................47
ARTICLE IX DISSOLUTION, LIQUIDATION AND MERGER................................................................48
SECTION 9.1. Dissolution Upon Expiration Date.................................................................48
SECTION 9.2. Early Termination................................................................................48
SECTION 9.3. Dissolution......................................................................................48
SECTION 9.4. Liquidation......................................................................................48
SECTION 9.5. Mergers, Consolidations, Amalgamations or Replacements of Success Capital........................50
ARTICLE X MISCELLANEOUS PROVISIONS............................................................................51
SECTION 10.1. Limitation of Rights of Holders.................................................................51
SECTION 10.2. Amendment.......................................................................................51
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SECTION 10.3. Separability....................................................................................52
SECTION 10.4. Governing Law...................................................................................53
SECTION 10.5. Payments Due on Non-Business Day................................................................53
SECTION 10.6. Successors......................................................................................53
SECTION 10.7. Headings........................................................................................54
SECTION 10.8. Reports, Notices and Demands....................................................................54
SECTION 10.9. Agreement Not to Petition.......................................................................54
SECTION 10.10. Trust Indenture Act; Conflict with Trust Indenture Act.........................................55
SECTION 10.11. Counterparts...................................................................................56
SECTION 10.12. Acceptance of Terms of Trust Agreement, Guarantee and Indenture................................56
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AGREEMENT
Amended and Restated Trust Agreement, dated as of ____________ 1998,
among (i) Success Bancshares, Inc., an Illinois corporation (including any
successors or assigns, "Success Bancshares"), (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"), (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"), (iv) Xxxx X. Xxxxxx, Xxxxxxx Xxxxx and Xxxxxx X. Xxxxxxx as
"Administrative Trustees", as hereinafter defined, and (v) the several Holders,
as hereinafter defined.
WITNESSETH
WHEREAS, Success Bancshares, the Property Trustee, the Delaware Trustee
and the Administrative Trustees have heretofore duly declared and established a
business trust pursuant to the Delaware Business Trust Act by the entering into
a certain Declaration of Trust, dated as of April 21, 1998 (the "Original Trust
Agreement"), and by the execution and filing by the Trustees with the Secretary
of State of the State of Delaware of the Certificate of Trust, filed on April
21, 1998 (the "Certificate of Trust"), attached as Exhibit A; and
WHEREAS, Success Bancshares, the Property Trustee, the Delaware Trustee
and the Administrative Trustees 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 by Success Capital Trust I ("Success Capital") of its
Common Securities to Success Bancshares, (ii) the issuance and sale of the
Preferred Securities by Success Capital pursuant to the Underwriting Agreement,
and (iii) the acquisition by Success Capital from Success Bancshares of all of
the right, title and interest in the Junior Subordinated Debentures.
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:
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;
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(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.
"25% Capital Limitation" means the limitation imposed by the Federal
Reserve that the proceeds of certain qualifying securities like the Trust
Securities will qualify as Tier 1 capital of the issuer up to an amount not to
exceed 25% of the Issuer's Tier 1 capital, or any subsequent limitation adopted
by the Federal Reserve.
"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 Success Bancshares on a Like Amount of
Debentures for such period.
"Additional Sums" has the meaning specified in Section 10.6 of the
Indenture.
"Administrative Trustees" means each Person appointed in accordance
with Section 8.20 solely in such Person's capacity as Administrative Trustee of
Success Capital heretofore formed and continued hereunder and not in such
Person's individual capacity, or any successor Administrative Trustee appointed
as herein provided; with the initial Administrative Trustees being Xxxx X.
Xxxxxx, Xxxxxxx Xxxxx and Xxxxxx X. Xxxxxxx.
"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
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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 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 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 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 Success Bancshares
or the Executive Committee of the board of directors of Success Bancshares (or
any other committee of the board of directors of Success Bancshares performing
similar functions) or a committee designated by the board of directors of
Success Bancshares (or any such committee), comprised of two or more members of
the board of directors of Success Bancshares or officers of Success Bancshares,
or both.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of Success Bancshares to have been duly
adopted by Success Bancshares's Board of Directors, or such committee of the
Board of Directors or officers of Success Bancshares 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 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 Indenture Trustee is closed
for business.
"Capital Treatment Event" means the receipt by Success Bancshares of an
Opinion of Counsel experienced in such matters to the effect that, as a result
of any amendment to, or
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change (including any announced prospective change) in, the laws (or any
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 prospective
change, pronouncement or decision is announced on or after the date of issuance
of the Preferred Securities under this Trust Agreement, the Preferred Securities
do not, or within 90 days of the date of such opinion will not, constitute Tier
1 capital (or the then equivalent thereof), except as otherwise restricted under
the 25% Capital Limitation, for purposes of the capital adequacy guidelines of
the Federal Reserve, as then in effect and applicable to Success Bancshares.
"Certificate Depositary Agreement" means the agreement among Success
Capital, Success Bancshares and DTC, as the initial Clearing Agency, dated as of
the Closing Date, substantially in the form attached as Exhibit B, as the same
may be amended and supplemented from time to time.
"Certificate of Trust" has the meaning specified in the preamble to
this Trust Agreement.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended. 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, or any successor
statute, in each case as amended from time to time.
"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 Success Capital, having a Liquidation Amount of $10 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 Xxxx Xxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000; Attention: Corporate Trust and Agency Group - Corporate Market
Services.
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"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.
"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 Success Capital 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 Depository Trust Company or any successor thereto.
"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 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
(b) default by Success Capital 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 Success Capital 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 Success Bancshares 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 60 days thereof.
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"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 $15,000,000
of Success Capital'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.
"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
__________ __, 1998, between Success Bancshares and the Indenture Trustee (as
amended or supplemented from time to time) relating to the issuance of the
Junior Subordinated Debentures.
"Indenture Trustee" means Bankers Trust Company, a New York banking
corporation and any successor.
"Interest Payment Date" shall have the meaning specified in the
Indenture.
"Investment Company Act" means the Investment Company Act of 1940, as
amended or any successor statute, in each case as amended from time to time.
"Investment Company Event" means the receipt by Success Capital of an
Opinion of Counsel experienced in such matters to the effect that, as a result
of any change in law or regulation or a change in interpretation or application
of law or regulation by any legislative body, court, governmental agency or
regulatory authority, Success Capital is or will be considered an "investment
company" that is required to be registered under the Investment Company Act,
which change becomes effective on or after the date of the original issuance of
the Preferred Securities.
"Issuer Trustees" means, collectively, the Property Trustee and the
Delaware Trustee.
"Junior Subordinated Debentures" means the aggregate principal amount
of Success Bancshares's _____% junior subordinated deferrable interest
debentures, due ____________, 2028, which date may be shortened once at any time
by the Company to any date not earlier than ________________, 2003 issued
pursuant to the Indenture.
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"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security interest
or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of Trust
Securities, Trust Securities having a Liquidation Amount equal to that portion
of the principal amount of Junior Subordinated Debentures to be
contemporaneously redeemed in accordance with the Indenture, allocated to the
Common Securities and to the Preferred Securities based upon the relative
Liquidation Amounts of such classes and (b) with respect to a distribution of
Junior Subordinated Debentures to Holders of Trust Securities in connection with
a dissolution and liquidation of Success Capital, 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 $10 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 Success Capital 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, with respect to any Person, a
certificate signed by the Chairman, Chief Executive Officer, President,
Executive Vice President or a Vice President, and by the Chief Financial
Officer, Treasurer, an Associate Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary of such Person, 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 each such officer in rendering the Officers'
Certificate;
(c) a statement that such officer has made such examination or
investigation as, in each 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
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
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"Opinion of Counsel" means a written opinion of independent outside
counsel to Success Bancshares who shall be acceptable to the Trustee.
"Option Closing Date" shall have the meaning provided in the
Underwriting Agreement.
"Option Securities" means an aggregate Liquidation Amount of $2,250,000
of Success Capital's _____% preferred securities, issuable to the Underwriters,
at their option, exercisable within ____ 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 or 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 Success Bancshares,
any Issuer Trustee, any Administrative Trustee or any Affiliate of Success
Bancshares 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 Administrative
Trustee, 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 Success Bancshares, one or more of the Issuer
Trustees, one or more of the Administrative Trustees 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
Administrative Trustees the pledgee's right so to act with respect to such
Preferred Securities and that the pledgee is not Success Bancshares or any
Affiliate of Success Bancshares.
"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.
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"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 Success
Capital, having a Liquidation Amount of $10 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 Success Capital formed and continued hereunder and not in
its individual capacity, or its successor in interest in such capacity, or any
successor property trustee appointed as herein provided.
"Redemption Date" means, with respect to any Trust Security to be
redeemed, the date fixed for such redemption by or pursuant to this Trust
Agreement; provided that each Junior 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 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 Success
Bancshares 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, principal, 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
this Trust Agreement, 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 and any successor
statute thereto, in each case as amended from time to time.
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"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.
"Stated Maturity" shall have the meaning specified in the Indenture.
"Success Bancshares" has the meaning specified in the preamble to this
Trust Agreement.
"Success Capital" means Success Capital Trust I.
"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 Success Capital
as that evidenced by, such particular Preferred Securities Certificate; and, for
the purposes of this definition, any Preferred Securities Certificate executed
and delivered under Section 5.6 in exchange for or in lieu of a mutilated,
destroyed, lost or stolen Preferred Securities Certificate shall be deemed to
evidence the same beneficial interest in Success Capital as the mutilated,
destroyed, lost or stolen Preferred Securities Certificate.
"Tax Event" means the receipt by Success Bancshares and Success Capital
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 or decision is announced on or after the date
of issuance of the Preferred Securities of Success Capital, there is more than
an insubstantial risk that (i) Success Capital 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 corresponding series of
Junior Subordinated Debentures issued by Success Bancshares to Success Capital,
(ii) interest payable by Success Bancshares on the Junior Subordinated
Debentures is not, or within 90 days of the delivery of such Opinion of Counsel
will not be, deductible by Success Bancshares, in whole or in part, for United
States federal income tax purposes, or (iii) Success Capital 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 charges.
"Time of Delivery" means 9:00 a.m. Eastern Standard Time, either (i)
with respect to the Firm Securities or Common Securities, on the fourth Business
Day (unless postponed in accordance with the provisions of Section ____ 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, Success Capital 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
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Indenture Act that are deemed to be a part of and govern this Amended and
Restated Trust Agreement and any modification, amendment or supplement,
respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939 or any
successor statute, in each case as amended from time to time.
"Trust Property" means (a) the Junior Subordinated Debentures, (b) any
cash on deposit in, or owing to, the Payment 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.
"Underwriters" has the meaning specified in the Underwriting
Agreement.
"Underwriting Agreement" means the Underwriting Agreement, dated as of
__________ __, 1998, among Success Capital, Success Bancshares and the
Underwriters, as the same may be amended from time to time.
ARTICLE II
CONTINUATION OF SUCCESS CAPITAL
SECTION 2.1. NAME.
Success Capital continued hereby shall be known as "Success Capital
Trust I", as such name may be modified from time to time by the Administrative
Trustees following written notice to the Holders of Trust Securities and the
Issuer Trustees, in which name the Administrative Trustees and the Issuer
Trustees may engage in the transactions contemplated hereby, make and execute
contracts and other instruments on behalf of Success Capital 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 Xxxxxx Xxxx, 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 Success Bancshares.
The principal executive office of Success Capital is in care of Success
Bancshares, Inc., Xxx Xxxxxxxx Xxxxx, Xxxxxxxxxxxx, Xxxxxxxx 00000, Attention:
Xxxx X. Xxxxxx.
SECTION 2.3. INITIAL CONTRIBUTION OF TRUST PROPERTY, ORGANIZATIONAL EXPENSES.
The Property Trustee acknowledges receipt in trust from Success
Bancshares in connection with this Trust Agreement of the sum of $10, which
constitutes the initial Trust
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Property. Success Bancshares shall pay all organizational expenses of Success
Capital as they arise or shall, upon request of any Issuer Trustee, promptly
reimburse such Issuer Trustee for any such reasonable expenses paid by such
Issuer Trustee. Success Bancshares shall make no claim upon the Trust Property
for the payment of such expenses.
SECTION 2.4. ISSUANCE OF THE PREFERRED SECURITIES.
On __________ __, 1998, Success Bancshares, both on its own behalf and
on behalf of Success Capital pursuant to the Original Trust Agreement, executed
and delivered the Underwriting Agreement. Contemporaneously with the execution
and delivery of this Trust Agreement, the Administrative Trustees, on behalf of
Success Capital, 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 Underwriters, Firm Securities Certificates, registered in the names
requested by the Underwriters, in an aggregate amount of $____________ Firm
Securities having an aggregate Liquidation Amount of $____________, against
receipt of the aggregate purchase price of such Preferred Securities of
$____________, by the Property Trustee. At the option of the Underwriters,
within 30 days of the date of the Prospectus, and solely for the purpose of
covering over-allotments, if any, the Administrative Trustees, on behalf of
Success Capital, 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 Underwriters, Option Securities Certificates, registered in the names
requested by the Underwriters, up to ____________ Option Securities having an
aggregate Liquidation Amount of up to $____________, against receipt of the
aggregate purchase price of such Option Securities of up to $____________, 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 Administrative Trustee, on behalf of Success Capital, shall
manually execute in accordance with Section 5.2 and deliver to Success
Bancshares Common Securities Certificates, registered in the name of Success
Bancshares, in an aggregate amount of ____________ Common Securities having an
aggregate Liquidation Amount of $____________ against receipt by the Property
Trustee of the aggregate purchase price of such Common Securities of
$____________ by the Property Trustee. In the event of any exercise of an
over-allotment option requiring issuance of additional Preferred Securities
Certificates, as described in Section 2.4 above, a proportionate number of
additional Common Securities Certificates, with corresponding aggregate
Liquidation Amount, shall be delivered to Success Bancshares. Contemporaneously
with the executions and deliveries of Common Securities Certificates and any
Preferred Securities Certificates, an Administrative Trustee, on behalf of
Success Capital, shall subscribe for and purchase from Success Bancshares
corresponding amounts of Junior Subordinated Debentures, registered in the name
of the Property Trustee and having an aggregate principal amount equal to
$____________, 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 $____________ 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 Success Capital, shall deliver to
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Success Bancshares the sum of $____________, 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
Success Capital the Junior Subordinated Debentures.
SECTION 2.6. DECLARATION OF TRUST.
The exclusive purposes and functions of Success Capital 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. Success Bancshares hereby appoints
the Issuer Trustees as trustees of Success Capital, 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 Success Capital and the Holders. Success Bancshares hereby
appoints the Administrative Trustees (as agents of Success Capital), with such
Administrative Trustees having all rights, powers and duties set forth herein
with respect to accomplishing the purposes of Success Capital, and the
Administrative Trustees hereby accept such appointment, provided, however, that
it is the intent of the parties hereto that such Administrative Trustees shall
not be trustees or fiduciaries with respect to Success Capital 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 Administrative Trustees. 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 Administrative Trustees set
forth herein. The Delaware Trustee shall be one of the trustees of Success
Capital 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 Administrative Trustees shall conduct
the affairs of Success Capital 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) and (ii) the Issuer Trustees
and the Administrative Trustees shall act as follows:
(i) Each Administrative Trustee shall have the power and
authority to act on behalf of Success Capital with respect to the following:
(A) the compliance with the Underwriting Agreement
regarding the issuance and sale of the Trust Securities;
(B) the compliance with the Securities Act,
applicable state securities or blue sky laws, and the Trust
Indenture Act;
(C) the listing of the Preferred Securities upon such
securities exchange or exchanges or upon the Nasdaq National
Market as shall be determined by Success Bancshares, 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;
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(D) the application for a taxpayer identification
number for Success Capital;
(E) 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; and
(F) 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 Success Capital with respect to the following matters:
(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 Success
Capital 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) or (d) 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
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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, Success Capital
(or the Issuer Trustees or Administrative Trustees acting on behalf of Success
Capital) shall not undertake any business, activities or transactions except as
expressly provided herein or contemplated hereby. In particular, neither the
Issuer Trustees nor the Administrative Trustees shall (i) acquire any
investments or engage in any activities not authorized by this Trust Agreement,
(ii) sell, assign, transfer, exchange, mortgage, pledge, set-off or otherwise
dispose of any of the Trust Property or interests therein, including to Holders,
except as expressly provided herein, (iii) take any action that would reasonably
be expected to cause Success Capital 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
Success Capital or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Preferred Securities,
Success Bancshares shall have the power and authority to assist Success Capital
with respect to, or effect on behalf of Success Capital, the following (and any
actions taken by Success Bancshares 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 Success Capital 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 Success Capital, and the advice to the
Issuer Trustees of actions they must take on behalf of Success Capital, and the
preparation for execution and filing of any documents to be executed and filed
by Success Capital or on behalf of Success Capital, as Success Bancshares 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
(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 Success Bancshares, the registration
of the Preferred Securities under the
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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 Administrative
Trustees and the Property Trustee are authorized and directed to conduct the
affairs of Success Capital and to operate Success Capital so that Success
Capital 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 Success
Bancshares for United States income tax purposes. In this connection, the
Property Trustee, the Administrative Trustees 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, the Administrative Trustees 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
Administrative Trustees or the Issuer Trustees be liable to Success Capital 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 Success Capital 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 Success Capital and the Holders in
accordance with this Trust Agreement.
ARTICLE III
PAYMENT ACCOUNT
SECTION 3.1. PAYMENT ACCOUNT.
(a) On or prior to the Closing Date, the Property Trustee shall
establish the Payment Account. The Property Trustee and its agents shall have
exclusive control and sole right of withdrawal with respect to the Payment
Account for the purpose of making deposits in and withdrawals from the Payment
Account in accordance with this Trust Agreement. All monies and other property
deposited or held from time to time in the Payment 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.
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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 Success Capital
available for the payment of Distributions. Distributions shall
accumulate from __________ __, 1998, and, except in the event (and to
the extent) that Success Bancshares exercises its right to defer the
payment of interest on the Debentures pursuant to the Indenture, shall
be payable quarterly in arrears on the 15th day of March, June,
September and December of each year, commencing on June 15, 1998. 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),
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 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").
(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, Success Bancshares 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 ______________, 2028, or end on a
date other than an Interest Payment Date (as defined in the Indenture).
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
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payable for each full Distribution period will be computed by dividing
the rate per annum by four. The term "Distributions" as used in Section
4.1 shall include any such additional Distributions provided pursuant
to this Section 4.1(a)(iii). During any Extension Period, Success
Bancshares will be prohibited from (i) declaring or paying any
dividends or distributions on, or redeeming, purchasing, acquiring or
making a liquidation payment with respect to, any of Success
Bancshares' capital stock (other than (a) paying dividends or
distributions in common stock of Success Bancshares, (b) redeeming
rights or taking certain other actions under a shareholders' rights
plan, (c) reclassifying any class of Success Bancshares' capital stock
into another class of capital stock and (d) purchasing Success
Bancshares' common stock related to rights under any of Success
Bancshares' benefit plans for its Directors, officers or employees),
(ii) making any payment of principal, interest or premium, if any, on,
or repaying, repurchasing or redeeming, any debt securities of Success
Bancshares that rank pari passu with or junior in interest to the
Junior Subordinated Debentures (except for payments under the
Guarantee) or (iii) redeeming, purchasing or acquiring less than all of
the Junior Subordinated Debentures or any of the Preferred Securities.
Prior to the termination of any such Extension Period, so long as no
event of default shall have occurred and be continuing under the
Indenture, Success Bancshares may further extend such Extension Period,
provided that such extension does not cause such Extension Period to
exceed 00 xxxxxxxxxxx xxxxxxxx, xxxxxx beyond the Stated Maturity or
end on a date other than an Interest Payment Date. Upon the termination
of any such Extension Period and the payment of all Distributions then
due, and subject to the foregoing limitations, Success Bancshares may
elect to begin a new Extension Period. Success Bancshares must give the
Issuer Trustees notice of its election of such Extension Period at
least one Business Day prior to the next succeeding Interest Payment
Date on which interest on the Junior Subordinated Debentures would be
payable but for such deferral or, so long as the Junior Subordinated
Debentures are held by Success Capital, at least one Business Day prior
to the earlier of (i) the date the Distributions on the Preferred
Securities would have been payable but for the election to begin such
Extension Period and (ii) the date the Property Trustee is required to
give notice to holders of the Preferred Securities of the record date
or the date such Distributions are payable, but in any event not less
than one Business Day prior to such record date. The Property Trustee
will give notice of Success Bancshares' election to begin a new
Extension Period to the holders of the Preferred Securities. Subject to
the foregoing, there is no limitation on the number of times that
Success Bancshares may elect to begin an Extension Period.
(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 Success Capital 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). In the
event the Trust Securities are not in book-entry form, the relevant record date
will be the first day of the month in which the relevant Distribution Date
occurs.
SECTION 4.2. REDEMPTION.
(a) On each Redemption Date of the Junior Subordinated Debentures and
on the stated maturity of the Junior Subordinated Debentures, Success Capital
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.
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Success Capital in issuing the Trust Securities shall use "CUSIP"
numbers, and the Property Trustee shall indicate the "CUSIP" numbers of the
Trust Securities in notices of redemption and related materials as a convenience
to Holders; provided that any such notice may state that no representation is
made as to the correctness of such numbers either as printed on the Trust
Securities or as contained in any notice of redemption and related material.
(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price with the applicable proceeds from the
contemporaneous redemption of Junior Subordinated Debentures. Redemptions of the
Trust Securities shall be made and the Redemption Price shall be payable on each
Redemption Date only to the extent that Success Capital has funds then on hand
and available in the Payment Account for the payment of such Redemption Price.
(d) If Success Capital 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 Holders 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 Distributions
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 Success Capital or by Success
Bancshares 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 Success Capital 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
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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, and the Redemption Price 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, and the
Redemption Price 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 of the Preferred
Securities.
(b) In the case of the occurrence of any Event of Default resulting
from any Debenture Event of Default, the Holder of the Common Securities shall
have no right to act with respect to any such Event of Default under this Trust
Agreement until the effects of all such Events of Default with respect to the
Preferred Securities have been cured, waived or otherwise eliminated. Until all
such Events of Default under this Trust Agreement with respect to the Preferred
Securities have been so cured, waived or otherwise eliminated, the Property
Trustee shall act solely on behalf of the Holders of the Preferred Securities
and not on behalf of the Holder of the Common Securities, and only the Holders
of the Preferred Securities will have the right to direct the Property Trustee
to act on their behalf.
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 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 Administrative Trustees shall prepare and file (or cause to be
prepared and filed), at Success Bancshares's expense, and file all United States
federal, state and local tax and
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information returns and reports required to be filed by or in respect of Success
Capital. In this regard, the Administrative Trustees shall (a) prepare and file
(or cause to be prepared and filed) all Internal Revenue Service forms required
to be filed in respect of Success Capital in each taxable year of Success
Capital 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
Success Capital. The Administrative Trustees shall provide Success Bancshares
and the Property Trustee with a copy of all such returns and reports promptly
after such filing or furnishing. The Issuer Trustees and the Administrative
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 Administrative Trustees shall furnish to the
Paying Agent such information as may be reasonably requested by the Property
Trustee in order that the Property Trustee may prepare the information which it
is required to report for such year on Internal Revenue Service Forms 1096 and
1099 pursuant to Section 6049 of the Internal Revenue Code of 1986, as amended.
Such information shall include the amount of original issue discount includible
in income for each outstanding Preferred Security during such year.
SECTION 4.6. PAYMENT OF TAXES; DUTIES, ETC. OF SUCCESS CAPITAL.
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 Success
Capital 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 Success Capital 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 Success Capital and the contribution by Success
Bancshares pursuant to Section 2.3 and until the issuance of the Trust
Securities, and at any time during which no Trust Securities are outstanding,
Success Bancshares shall be the sole beneficial owner of Success Capital.
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SECTION 5.2. THE TRUST SECURITIES CERTIFICATES.
(a) The Trust Securities Certificates shall be executed on behalf of
Success Capital by manual or facsimile signature of at least one Administrative
Trustee except as provided in Section 5.3. Trust Securities Certificates bearing
the signatures of individuals who were, at the time when such signatures shall
have been affixed, authorized to sign on behalf of Success Capital, 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 Success Bancshares 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 Administrative Trustees 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 Success Capital 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 Success Capital, executed by
an Administrative Trustee thereof, without further corporate action by Success
Capital, in authorized denominations.
SECTION 5.4. GLOBAL PREFERRED SECURITY.
(a) Any Global Preferred Security issued under this Trust Agreement
shall be registered in the name of the nominee of the Clearing Agency and
delivered to such custodian therefor, and such Global Preferred Security shall
constitute a single Preferred Security for all purposes of this Trust Agreement.
(b) Notwithstanding any other provision in this Trust Agreement, no
Global Security may be exchanged for Securities registered in the names of
persons other than the Depositary or its nominee unless (i) the Depositary
notifies the Indenture Trustee that it is unwilling or unable to continue as a
depositary for such Global Security and Success Bancshares is unable to locate a
qualified successor depositary, (ii) Success Bancshares executes and delivers to
the Trustee a
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written order stating that it elects to terminate the book-entry system through
the Depositary or (iii) there shall have occurred and be continuing a Debenture
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 Administrative Trustees shall
execute and the Property Trustee shall, subject to Section 5.4(b) and as
otherwise provided in this Article V, authenticate and deliver any Preferred
Securities issuable in exchange for such Global Preferred Security (or any
portion thereof) in accordance with the instructions of the Clearing Agency. The
Property Trustee shall not be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be fully protected in
relying on, such instructions.
(d) Every Preferred Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a Global
Preferred Security or any portion thereof, whether pursuant to this Article V or
Article IV or otherwise, shall be authenticated and delivered in the form of,
and shall be, a Global Preferred Security, unless such Global Preferred Security
is registered in the name of a Person other than the Clearing Agency for such
Global Preferred Security or a nominee thereof.
(e) The Clearing Agency or its nominee, as the registered owner of a
Global Preferred Security, shall be considered the Holder of the Preferred
Securities represented by such Global Preferred Security for all purposes under
this Trust Agreement and the Preferred Securities, and owners of beneficial
interests in such Global Preferred Security shall hold such interests pursuant
to the Applicable Procedures and, except as otherwise provided herein, shall not
be entitled to receive physical delivery of any such Preferred Securities in
definitive form and 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 Success
Bancshares 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
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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 Administrative Trustees and the Property Trustee shall execute, authenticate
and deliver, in the name of the designated transferee or transferees, one or
more new Preferred Securities of the same series of any authorized denominations
of like tenor and aggregate principal amount and bearing such legends as may be
required by this Trust Agreement
At the option of the Holder, Preferred Securities may be exchanged for
other Preferred Securities of any authorized denominations, of like tenor and
aggregate Liquidation Amount and bearing such legends as may be required by this
Trust Agreement, upon surrender of the Preferred Securities to be exchanged at
such office or agency. Whenever any securities are so surrendered for exchange,
the Administrative Trustees shall execute and the Property Trustee shall
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 Success Capital,
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 Success Capital 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.
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(b) Certain Transfers and Exchanges. Trust Securities may only be
transferred, in whole or in part, in accordance with the terms and conditions
set forth in this Trust Agreement. Any transfer or purported transfer of any
Trust Security not made in accordance with this Trust Agreement shall be null
and void.
(i) Non Global Security to Non Global Security. A Trust
Security that is not a Global Preferred Security may be transferred, in
whole or in part, to a Person who takes delivery in the form of another
Trust Security that is not a Global Security as provided in Section
5.5(a).
(ii) Free Transferability. Subject to this Section 5.5,
Preferred Securities shall be freely transferable.
(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 Administrative Trustees 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 Administrative Trustees, or any one of them, on behalf of Success
Capital 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 Administrative Trustees
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 Success Capital 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 Administrative Trustees, the Securities
Registrar or Success Bancshares 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 Administrative Trustees, the Securities Registrar nor
Success Bancshares shall be bound by any notice to the contrary.
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
Success Bancshares, the Property Trustee, or the Administrative Trustees
accountable by reason of the
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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
Administrative Trustees, 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 Success Bancshares, the Administrative Trustees 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 Administrative Trustees. 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
Administrative Trustees, 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 Administrative Trustees
shall appoint a successor to act as Paying Agent. Such successor Paying Agent or
any additional Paying Agent appointed by the Administrative Trustees 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 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, Success Bancshares shall acquire and retain
beneficial and record ownership of the Common Securities except (i) in
connection with a consolidation or merger of Success Bancshares into another
corporation or any conveyance, transfer or lease by Success Bancshares 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 Success
Bancshares
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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 Administrative
Trustees shall cause each Common Securities Certificate issued to Success
Bancshares to contain a legend stating "THIS CERTIFICATE IS NOT TRANSFERABLE
EXCEPT TO A SUCCESSOR IN INTEREST TO SUCCESS BANCSHARES OR AN AFFILIATE OF
SUCCESS BANCSHARES 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 Administrative Trustees 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 interest in the assets of Success Capital conferred by their Trust
Securities and they shall have no right to call for any partition or division of
property, profits or rights of Success Capital except as described below. The
Trust Securities shall be personal property giving only the rights specifically
set forth therein and in this Trust Agreement. The Trust Securities shall have
no preemptive or similar rights and when issued and delivered to Holders against
payment of the purchase price therefor will be fully paid and nonassessable by
Success Capital. Subject to Section 4.8 hereof, 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 Indenture 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,
Success Bancshares and the Indenture 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 Indenture 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, Success
Bancshares and the Indenture Trustee, may rescind and annul such declaration and
its consequences if:
(i) Success Bancshares has paid or deposited with the
Indenture Trustee a sum sufficient to pay
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(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 Indenture
Trustee under the Indenture and the reasonable compensation,
expenses, disbursements and advances of the Indenture
Trustee and the Property Trustee, their agents and counsel;
and
(ii) all Events of Default with respect to the Junior
Subordinated Debentures, other than the non-payment of the principal of
the Junior Subordinated Debentures which has become due solely by such
acceleration, have been cured or waived as provided in Section 5.13 of
the Indenture.
If the Property Trustee fails to annul any such declaration and waive
such default, the Holders of at least a Majority in Liquidation Amount of the
Preferred Securities shall also have the right to rescind and annul such
declaration and its consequences by written notice to Success Bancshares, the
Property Trustee and the Indenture 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 Indenture 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 affected thereby. 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.
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Nothing in this paragraph shall prevent a Holder, or a proxy of a Holder, from
giving, after expiration of such 90-day period, a new written notice of
declaration of acceleration, or rescission and annulment thereof, as the case
may be, that is identical to a written notice which has been canceled pursuant
to the proviso to the preceding sentence, in which event a new record date shall
be established pursuant to the provisions of this Section 5.13(b).
(c) For so long as any Preferred Securities remain Outstanding, to the
fullest extent permitted by law and subject to the terms of this Trust Agreement
and the Indenture, upon a Debenture Event of Default specified in Section 5.1(1)
or 5.1(2) of the Indenture, any Holder of Preferred Securities shall have the
right to institute a proceeding directly against Success Bancshares, pursuant to
Section 5.9 of the Indenture, for enforcement of payment to such Holder of the
principal amount of or interest on Junior Subordinated Debentures having an
aggregate principal amount equal to the aggregate Liquidation Amount of the
Preferred Securities of such Holder (a "Direct Action"). Except as set forth in
Sections 5.13(b) and 5.13 (c), the Holders of Preferred Securities shall have no
right to exercise directly any right or remedy available to the holders of, or
in respect of, the Junior Subordinated Debentures.
ARTICLE VI
ACTS OF HOLDERS; MEETINGS; VOTING
SECTION 6.1. LIMITATIONS ON HOLDER'S VOTING RIGHTS.
(a) Except as provided in this Trust Agreement and in the Indenture and
as otherwise required by law, no Holder of Preferred Securities shall have any
right to vote or in any manner otherwise control the administration, operation
and management of Success Capital 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 Success Capital, the Property Trustee shall not
(i) direct the time, method and place of conducting any proceeding for any
remedy available to the Indenture 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 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
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foregoing actions, the Issuer Trustees shall, at the expense of Success
Bancshares, obtain an Opinion of Counsel experienced in such matters to the
effect that such action will not cause Success Capital 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
Success Capital 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 Success Capital, 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 Success Capital 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 Administrative Trustees or the
Property Trustee may, at any time in their discretion, call a meeting of Holders
of Preferred Securities to vote on any matters as to which Holders are entitled
to vote.
Holders of at least a Majority in Liquidation Amount of the Preferred
Securities, present in person or represented by proxy, shall constitute a quorum
at any meeting of Holders of the Preferred Securities.
If a quorum is present at a meeting, an affirmative vote by the Holders
of record present, in person or by proxy, holding Preferred Securities
representing at least a Majority in Liquidation Amount of the Preferred
Securities held by the Holders present, either in person or by proxy, at such
meeting shall constitute the action of the Holders of Preferred Securities,
unless this Trust Agreement requires a greater number of affirmative votes.
SECTION 6.4. VOTING RIGHTS.
Holders shall be entitled to one vote for each $10 of Liquidation
Amount represented by their Outstanding Trust Securities in respect of any
matter as to which such Holders are entitled to vote.
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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 Success Capital 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.
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 Administrative Trustees or Property Trustee may from time to time
fix a date, not more than 90 days prior to the date of any meeting of Holders or
the payment of a Distribution or other action, as the case may be, as a record
date for the determination of the identity of the Holders of record for such
purposes.
SECTION 6.8. ACTS OF HOLDERS.
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Trust Agreement to be given, made
or taken by Holders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Holders in person or by an agent
duly appointed in writing; and, except as otherwise expressly provided herein,
such action shall become effective when such instrument or instruments are
delivered to the Property Trustee. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Trust Agreement and (subject to Section
8.1) conclusive in favor of the Issuer Trustees, if made in the manner provided
in this Section.
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The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which any Issuer Trustee or Administrative Trustee 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 Administrative Trustees or Success Capital 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 Administrative
Trustees 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 Success
Bancshares 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), Success Capital, any
Issuer Trustee, any Administrative Trustee or any person or entity.
SECTION 6.9. INSPECTION OF RECORDS.
Upon reasonable notice to the Administrative Trustees and the Property
Trustee, the records of Success Capital 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 Success
Bancshares 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.
(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.
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(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.
Success Bancshares 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 Success Capital 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
Success Capital (or the Issuer Trustees on behalf of Success Capital) under the
laws of the State of Delaware or any political subdivision thereof in connection
with the execution, delivery and performance by either the Property Trustee or
the Delaware Trustee, as the case may be, of this Trust Agreement.
ARTICLE VIII
ISSUER TRUSTEES: THE ADMINISTRATIVE TRUSTEES
SECTION 8.1. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) The duties and responsibilities of the Issuer Trustees and the
Administrative Trustees 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 Administrative Trustees 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 Administrative Trustees shall
be subject to the provisions of this Section. Nothing in this Trust Agreement
shall be construed to release an Administrative Trustee or the Issuer Trustees
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 Administrative Trustee has duties and
liabilities relating to Success Capital or to the Holders, such Issuer Trustee
or Administrative Trustee shall not be liable to Success Capital or to any
Holder for such Issuer Trustee's or Administrative Trustee'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 Administrative Trustees otherwise existing at law or in
equity, are agreed by Success
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Bancshares and the Holders to replace his or such other duties and liabilities
of the Issuer Trustees and Administrative Trustees.
(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 Administrative Trustees 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 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
Success Bancshares; 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 Administrative Trustees or Success
Bancshares 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 Administrative Trustees or Success
Bancshares; 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 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 Administrative Trustees shall not be responsible for monitoring
the compliance by the Issuer Trustees or Success Bancshares with their
respective duties under this Trust Agreement, nor shall any Administrative
Trustee be liable for the default or misconduct of any other Administrative
Trustee, the Issuer Trustees or Success Bancshares.
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 Administrative
Trustees, unless such Event of Default shall have been cured or waived.
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Within five Business Days after the receipt of notice of Success
Bancshares'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 Administrative Trustees, 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 Success Bancshares 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 registration thereof;
(d) the Property Trustee may consult with counsel of its own choosing
(which counsel may be counsel to Success Bancshares 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
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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 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 Administrative Trustee to perform any act
or acts or exercise any right, power, duty or obligation conferred or imposed on
it, in any jurisdiction in which it shall be illegal, or in which the Property
Trustee shall be unqualified or incompetent in accordance with applicable law,
to perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to any Issuer Trustee or
Administrative Trustee 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 Success Capital, and the Issuer Trustees and
the Administrative Trustees do not assume any responsibility for their
correctness. The Issuer Trustees and the Administrative Trustees shall not be
accountable for the use or application by Success Bancshares 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 Administrative Trustees, any Issuer Trustee or any other agent of
any Issuer Trustee or Success Capital, 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 Success Capital with the same rights it would
have if it were not an Administrative Trustee, Issuer Trustee or such other
agent.
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SECTION 8.6. COMPENSATION; INDEMNITY; FEES.
Success Bancshares agrees:
(a) to pay to the Issuer Trustees from time to time reasonable
compensation for all services rendered by them hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(b) to reimburse the Issuer Trustees and the Administrative 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 Administrative Trustee, (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 Success Capital, (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 Success Capital or
any act or omission performed or omitted by such Indemnified Person in good
faith on behalf of Success Capital 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.
Success Bancshares, any Administrative Trustee 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 Success Capital, and Success Capital 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 Success Capital,
shall not be deemed wrongful or improper. Neither Success Bancshares, any
Administrative Trustee, nor any Issuer Trustee shall be obligated to present any
particular investment or other opportunity to Success Capital even if such
opportunity is of a character that, if presented to Success Capital, could be
taken by Success Capital, and Success Bancshares, any Administrative Trustee or
any Issuer Trustee shall have the right to take for its own account
(individually or as a partner or fiduciary) or to recommend to others any such
particular investment or other opportunity. Any Issuer Trustee may engage or be
interested in any financial or other transaction with Success Bancshares or any
Affiliate of Success Bancshares, 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 Success Bancshares or its Affiliates.
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SECTION 8.7 CORPORATE PROPERTY TRUSTEE REQUIRED; ELIGIBILITY OF TRUSTEES.
(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 Administrative Trustees
hereunder. Each Administrative Trustee shall be either a natural person who is
at least 21 years of age or a legal entity that shall act through one or more
persons authorized to bind that entity. An employee, officer or Affiliate of
Success Bancshares may serve as an Administrative Trustee.
(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.
(b) The Guarantee Agreement and the Indenture shall be deemed to be
specifically 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, Success
Bancshares and the Administrative Trustees 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
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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 Success Bancshares 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 Success Bancshares.
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
Administrative Trustees, and the Trust Securities shall be countersigned,
registered and delivered and all rights, powers, duties, and obligations
hereunder in respect of the custody of securities, cash and other personal
property held by, or required to be deposited or pledged with, the Property
Trustees specified hereunder, shall be exercised, solely by the Property Trustee
and not by such co-trustee or separate trustee.
(b) The rights, powers, duties, and obligations hereby conferred or
imposed upon the Property Trustee in respect of any property covered by such
appointment shall be conferred or imposed upon and exercised or performed by the
Property Trustee and such co-trustee or separate trustee jointly, as shall be
provided in the instrument appointing such co-trustee or separate trustee,
except to the extent that under any law of any jurisdiction in which any
particular act is to be performed, the Property Trustee shall be incompetent or
unqualified to perform such act, in which event such rights, powers, duties and
obligations shall be exercised and performed by such co-trustee or separate
trustee.
(c) The Property Trustee at any time, by an instrument in writing
executed by it, with the written concurrence of Success Bancshares, 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
Success Bancshares. Upon the written request of the Property Trustee, Success
Bancshares 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.
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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 Holders
of the Common Securities shall appoint a successor by requesting from at least
three Persons meeting the eligibility requirements its expenses and charges to
serve as the successor Trustee on a form provided by the Administrative
Trustees, 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 Success Capital, any court of competent jurisdiction
for the appointment of a successor Trustee.
Unless a Debenture Event of Default shall have occurred and be
continuing, any of the Issuer Trustees may be removed at any time by the Holder
of the Common Securities. If a Debenture Event of Default has occurred and is
continuing, the Issuer Trustees may be removed at such time by the Holders of a
Majority in Liquidation Amount of the Preferred Securities.
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 Common Securities 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 Common 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 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 Success
Bancshares and to the Administrative Trustees. 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
and charges set forth above (with the successor in each case being a Person who
satisfies the eligibility requirement for Administrative Trustees or Delaware
Trustee, as the case may be, set forth in Section 8.7).
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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 instrument wherein
each successor Trustee shall accept such appointment and which 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 Success
Capital, and upon the execution and delivery of such instrument 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 Success Capital 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, Success Capital 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 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 SUCCESS
CAPITAL.
If and when the Property Trustee shall be or become a creditor of
Success Bancshares (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 Success Bancshares (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 Success Capital or any other obligor upon the Trust
Securities or the property of Success Capital 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 Success Capital for the payment
of any past due Distributions) shall
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be entitled and empowered, to the fullest extent permitted by law, by
intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of any Distributions
owing and unpaid in respect of the Trust Securities and to file such other
papers or documents as may be necessary or advisable in order to have the claims
of the Property Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Property Trustee, its agents and
counsel) and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder to make such
payments to the Property Trustee and, in the event the Property Trustee shall
consent to the making of such payments directly to the Holders, to pay to the
Property Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Property Trustee, its agents and counsel, and
any other amounts due the Property Trustee.
Nothing herein contained shall be deemed to authorize the Property
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or compensation affecting
the Trust Securities or the rights of any Holder thereof or to authorize the
Property Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 8.15. REPORTS BY PROPERTY TRUSTEE.
(a) Within 60 days of January 31 of each year commencing with January
31, 1999, the Property Trustee shall transmit to all Holders in accordance with
Section 10.8, and to Success Bancshares, 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 Success Bancshares.
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SECTION 8.16. REPORTS TO THE PROPERTY TRUSTEE.
Success Bancshares and the Administrative Trustees on behalf of Success
Capital 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. Success
Bancshares and the Administrative Trustees shall annually file with the Property
Trustee a certificate specifying whether such Person is in compliance with all
the terms and covenants applicable to such Person hereunder.
SECTION 8.17. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
Each of Success Bancshares and the Administrative Trustees on behalf of
Success Capital 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 Success Capital.
SECTION 8.19. DELEGATION OF POWER.
(a) Any Administrative Trustee may, by power of attorney consistent
with applicable law, delegate to any other natural person over the age of 21 his
or her power for the purpose of executing any documents contemplated in Section
2.7(a) or making any governmental filing; and
(b) The Administrative Trustees 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 Success Capital or the names of the
Administrative Trustees or otherwise as the Administrative Trustees may deem
expedient, to the extent such delegation is not prohibited by applicable law or
contrary to the provisions of this Trust Agreement.
SECTION 8.20. APPOINTMENT OF ADMINISTRATIVE TRUSTEES.
(a) The Administrative Trustees (other than the initial Administrative
Trustees) shall be appointed by the Holders of a Majority in Liquidation Amount
of the Common Securities and all Administrative Trustees (including the initial
Administrative Trustees) 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 Administrative Trustee shall sign this Trust Agreement.
If at any time there is no Administrative Trustee, 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
Administrative Trustees.
(b) Whenever a vacancy in the number of Administrative Trustees shall
occur, until such vacancy is filled by the appointment of an Administrative
Trustee in accordance with this Section 8.20, the Administrative Trustees in
office, regardless of their number (and notwithstanding any other provision of
this Trust Agreement), shall have all the powers granted to the Administrative
Trustees and shall discharge all the duties imposed upon the Administrative
Trustees by this Trust Agreement.
(c) Notwithstanding the foregoing, or any other provision of this Trust
Agreement, in the event any Administrative Trustee 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 Administrative Trustees, if there were at least two of them prior to
such vacancy, and by Success Bancshares, if there were not two such
Administrative Trustees immediately prior to such vacancy (with the successor in
each case being a Person who satisfies the eligibility requirement for
Administrative Trustees 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 Administrative Trustee may execute any document or
otherwise take any action which the Administrative Trustees are authorized to
take under this Trust Agreement.
(e) In no event will the Holders of the Preferred Securities have the
right to vote to appoint, remove or replace the Administrative Trustees, which
voting rights are vested exclusively in Success Bancshares as the Holder of the
Common Securities.
ARTICLE IX
DISSOLUTION, LIQUIDATION AND MERGER
SECTION 9.1. DISSOLUTION UPON EXPIRATION DATE.
Unless earlier dissolved, Success Capital shall automatically dissolve
on ____________, 2029 (the "Expiration Date").
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
Success Bancshares 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
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days, unless Success Bancshares 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 Success Capital 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 Success Capital by a court
of competent jurisdiction.
SECTION 9.3. DISSOLUTION.
The respective obligations and responsibilities of the Issuer Trustees,
the Administrative Trustees and Success Capital 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 Success Capital 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 Success Capital, (c) the discharge of all
administrative duties of the Administrative Trustees, including the performance
of any tax reporting obligations with respect to Success Capital or the Holders
and (d) the filing by the Issuer Trustees of a certificate of cancellation with
the Delaware Secretary of State.
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, Success Capital shall be
liquidated by the Property Trustee as expeditiously as the Property Trustee
determines to be possible by distributing, after paying or making reasonable
provision to pay all claims and obligations of Success Capital in accordance
with Delaware law, to each Holder a Like Amount of Junior Subordinated
Debentures, subject to Section 9.4(d). If a Like Amount of Junior Subordinated
Debentures are distributed to the Holders, Success Bancshares will use its best
efforts to list the Junior Subordinated Debentures on the Nasdaq National Market
or such other stock exchange or automated quotation system, if any, on which the
Preferred Securities are then listed or quoted. The Property Trustee, the
Delaware Trustee, the Guarantee Trustee and the Indenture Trustee shall have no
obligation to list the Junior Subordinated Debentures on any stock exchange or
automated quotation system. 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;
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(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 Administrative Trustees 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 Success Capital 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.
(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 Success Capital
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 Success
Capital, Holders will be entitled to receive out of the assets of Success
Capital available for distribution to Holders, after paying or making reasonable
provision to pay all claims and obligations of Success Capital in accordance
with Delaware 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
Success Capital has insufficient assets available to pay in full the aggregate
Liquidation Distribution, then, subject to the next succeeding sentence, the
amounts payable by Success Capital 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,
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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 SUCCESS
CAPITAL.
Success Capital 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, Success Capital 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
Success Capital with respect to the Preferred Securities or (b) substitutes for
the Preferred Securities other securities having substantially the same terms as
the Preferred Securities (the "Successor Securities") so long as the Successor
Securities have the same priority as the Preferred Securities with respect to
distributions and payments upon liquidation, redemption and otherwise, (ii) a
trustee of such successor entity possessing the same powers and duties as the
Property Trustee is appointed to hold the Junior Subordinated Debentures, (iii)
the Successor Securities are listed, or any Successor Securities will be listed
upon notification of issuance, on any national securities exchange or other
organization on which the Preferred Securities are then listed, if any, (iv)
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, (v) 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, (vi) such successor entity has a purpose substantially identical to
that of Success Capital, (vii) Success Bancshares 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 Success Capital nor such
successor entity will be required to register as an "investment company" under
the Investment Company Act, and (viii) Success Bancshares 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, Success
Capital 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
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lease would cause Success Capital or the successor entity to be taxable as a
corporation for United States federal income tax purposes.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. LIMITATION OF RIGHTS OF HOLDERS.
Except as set forth in Section 9.2, the death or incapacity of any
person having an interest, beneficial or otherwise, in Trust Securities shall
not operate to dissolve 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 Administrative
Trustees on behalf of Success Capital.
SECTION 10.2. AMENDMENT.
(a) This Trust Agreement may be amended from time to time by Success
Bancshares, the Property Trustee and the Administrative Trustees without the
consent of the Holders 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 Success Capital
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
Success Capital 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 Issuer Trustees and Success Bancshares
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
Success Capital to be taxable as a corporation for United States federal income
tax purposes or affect Success Capital's exemption from status of an "investment
company" under the Investment Company Act.
(c) In addition to and notwithstanding any other provision in this
Trust Agreement, without the consent of each affected Holder (such consent being
obtained in accordance with Section 6.3 or 6.6 hereof), this Trust Agreement may
not be amended to (i) change the amount or timing of any Distribution or other
payment on the Trust Securities or otherwise adversely affect the amount of any
Distribution or other payment 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.
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(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 Success Capital 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 Success Bancshares and the Administrative Trustees, this
Trust Agreement may not be amended in a manner which imposes any additional
obligation on Success Bancshares or the Administrative Trustees.
(f) In the event that any amendment to this Trust Agreement is made,
the Administrative Trustees or the Property Trustee shall promptly provide to
Success Bancshares 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.
SECTION 10.4. GOVERNING LAW.
THIS TRUST AGREEMENT AND THE RIGHTS OF THE PARTIES HEREUNDER SHALL BE
GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE
AND ALL RIGHTS AND REMEDIES SHALL BE GOVERNED BY SUCH LAWS WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICT OF LAWS OF THE STATE OF DELAWARE OR ANY OTHER
JURISDICTION THAT WOULD CALL FOR THE APPLICATION OF THE LAW OF ANY JURISDICTION
OTHER THAN THE STATE OF DELAWARE; PROVIDED, HOWEVER, THAT THERE SHALL NOT BE
APPLICABLE TO THE PARTIES HEREUNDER OR THIS TRUST AGREEMENT ANY PROVISION OF THE
LAWS (STATUTORY OR COMMON) OF THE STATE OF DELAWARE PERTAINING TO TRUSTS THAT
RELATE TO OR REGULATE, IN A MANNER INCONSISTENT WITH THE TERMS HEREOF (A) THE
FILING WITH ANY COURT OR GOVERNMENTAL BODY OR AGENCY OF TRUSTEE ACCOUNTS OR
SCHEDULES OF TRUSTEE FEES AND CHARGES, (B) AFFIRMATIVE REQUIREMENTS TO POST
BONDS FOR TRUSTEES, OFFICERS, AGENTS OR EMPLOYEES OF A TRUST, (C) THE NECESSITY
FOR OBTAINING COURT OR OTHER GOVERNMENTAL APPROVAL CONCERNING THE ACQUISITION,
HOLDING OR DISPOSITION OF REAL OR PERSONAL PROPERTY, (D) FEES OR OTHER SUMS
PAYABLE TO TRUSTEES, OFFICERS, AGENTS OR EMPLOYEES OF A TRUST, (E) THE
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ALLOCATION OF RECEIPTS AND EXPENDITURES TO INCOME OR PRINCIPAL, (F) RESTRICTIONS
OR LIMITATIONS ON THE PERMISSIBLE NATURE, AMOUNT OR CONCENTRATION OF TRUST
INVESTMENTS, OR REQUIREMENTS RELATING TO THE TITLING, STORAGE OR OTHER MANNER OF
HOLDING OR INVESTING TRUST ASSETS OR (G) THE ESTABLISHMENT OF FIDUCIARY OR OTHER
STANDARDS OF RESPONSIBILITY OR LIMITATIONS ON THE ACTS OR POWERS OF TRUSTEES
THAT ARE INCONSISTENT WITH THE LIMITATIONS OR LIABILITIES OR AUTHORITIES AND
POWERS OF THE TRUSTEES HEREUNDER AS SET FORTH OR REFERENCED IN THIS DECLARATION.
SECTION 3540 OF TITLE 12 OF THE DELAWARE CODE SHALL NOT APPLY TO THE TRUST.
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 Success Bancshares, Success Capital, the
Administrative Trustees and any Issuer Trustee, including any successor by
operation of law. Except in connection with a consolidation, merger or sale
involving Success Bancshares that is permitted under Article VIII of the
Indenture and pursuant to which the assignee agrees in writing to perform
Success Bancshares's obligations hereunder, Success Bancshares 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 Success Bancshares 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 Success Bancshares, to Success Bancshares, Inc., Xxx
Xxxxxxxx Xxxxx, Xxxxxxxxxxxx, Xxxxxxxx 00000, Attention: Xxxx X. Xxxxxx,
Facsimile no.: (000) 000-0000 or to such other address as may be specified in a
written notice by Success Bancshares to the Property Trustee. Such notice,
demand or other communication to or upon a Holder shall be deemed to have been
sufficiently given or made, for all purposes, upon hand delivery, mailing or
transmission. Such notice, demand or other communication to or upon Success
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Bancshares shall be deemed to have been sufficiently given or made only upon
actual receipt of the writing by Success Bancshares.
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
Success Capital, the Property Trustee, the Delaware Trustee, the Administrative
Trustees, or Success Capital shall be given in writing addressed (until another
address is published by Success Capital) 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 Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Xxxx
Xxxxxxx; and (c) with respect to the Administrative Trustees, to them at the
address above for notices to Success Bancshares, marked "Attention: Office of
the Secretary". Such notice, demand or other communication to or upon Success
Capital or the Property Trustee shall be deemed to have been sufficiently given
or made only upon actual receipt of the writing by Success Capital, the Property
Trustee, or such Administrative Trustee.
SECTION 10.9. AGREEMENT NOT TO PETITION.
Each of the Issuer Trustees, the Administrative Trustees and Success
Bancshares agree for the benefit of the Holders that, until at least one year
and one day after Success Capital has been dissolved in accordance with Article
IX, they shall not file, or join in the filing of, a petition against Success
Capital 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 Success Capital under any Bankruptcy Law. In the event
Success Bancshares takes action in violation of this Section 10.9, the Property
Trustee agrees, for the benefit of Holders, that at the expense of Success
Bancshares, it shall file an answer with the bankruptcy court or otherwise
properly contest the filing of such petition by Success Bancshares against
Success Capital or the commencement of such action and raise the defense that
Success Bancshares 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
Success Bancshares or Success Capital may assert. If any Issuer Trustee or
Administrative Trustee takes action in violation of this Section 10.9, Success
Bancshares agrees, for the benefit of the Holders, that at the expense of
Success Bancshares, it shall file an answer with the bankruptcy court or
otherwise properly contest the filing of such petition by such Person against
Success Bancshares or the commencement of such action and raise the defense that
such Person has agreed in writing not to take such action and should be estopped
and precluded therefrom and such other defenses, if any, as counsel for Success
Bancshares or Success Capital 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
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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 Success
Capital.
(b) Lists of Holders of Preferred Securities. (i) Each of Success
Bancshares and the Administrative Trustees 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 Success Bancshares
and the Administrative Trustees on behalf of Success Capital 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 314(a)(4) of
the Trust Indenture Act shall be provided within 120 days of the end of each
fiscal year of Success Capital).
(e) Evidence of Compliance with Conditions Precedent. Each of Success
Bancshares and the Administrative Trustees on behalf of Success Capital 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. COUNTERPARTS.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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SECTION 10.12. 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 SUCCESS CAPITAL, SUCH HOLDER AND SUCH OTHERS THAT THE TERMS AND
PROVISIONS OF THIS TRUST AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS
BETWEEN SUCCESS CAPITAL AND SUCH HOLDER AND SUCH OTHERS.
(Signature page attached)
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IN WITNESS WHEREOF, the parties hereto have executed this Trust
Agreement as of the date first above written.
SUCCESS BANCSHARES, INC.,
AS DEPOSITOR
By:
------------------------------------------------ ---------------------------
Xxxx X. Xxxxxx, not individually, but solely as Name:
Administrative Trustee -------------------------
Title:
------------------------
BANKERS TRUST COMPANY,
(DELAWARE), NOT
INDIVIDUALLY, BUT SOLELY AS
PROPERTY TRUSTEE
----------------------------------------------- By:
Xxxxxxx Xxxxx, not individually, but solely as ---------------------------
Administrative Trustee Name:
-------------------------
Title:
------------------------
BANKERS TRUST (DELAWARE), NOT
INDIVIDUALLY, BUT SOLELY AS
DELAWARE TRUSTEE
----------------------------------------------- By:
Xxxxxx X. Xxxxxxx, not individually, but solely ---------------------------
as Administrative Trustee Name:
-------------------------
Title:
------------------------
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EXHIBIT A
CERTIFICATE OF TRUST
OF
SUCCESS CAPITAL TRUST I
THIS CERTIFICATE OF TRUST of Success Capital Trust I (the "Trust"), dated
April 21, 1998, is being duly executed and filed by Bankers Trust Company and
Bankers Trust (Delaware), and Xxxx X. Xxxxxx, Xxxxxxx Xxxxx and Xxxxxx X.
Xxxxxxx, each an individual, as trustees, to form a business trust under the
Delaware Business Trust Act (12 Del. C. Section 3801 et seq.).
1. Name. The name of the business trust formed hereby is "Success
Capital Trust I".
2. Delaware Trustee. The name and address of the trustee of the Trust
in the State of Delaware are:
Bankers Trust (Delaware)
0000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
3. Effective. This Certificate of Trust shall be effective immediately
upon filing in the Office of the Secretary of State of the State of Delaware.
4. Counterparts. This Certificate of Trust may be executed in one or
more counterparts.
IN WITNESS WHEREOF, the undersigned, being the sole trustees of the Trust,
have executed this Certificate of Trust as of the date first written above.
BANKERS TRUST COMPANY,
as Property Trustee
By: /s/ Xxxxx Xxxxxxx
--------------------------------
Name: XXXXX XXXXXXX
Title: ASSISTANT VICE PRESIDENT
BANKERS TRUST (DELAWARE),
as Delaware Trustee
By: /s/ M. Xxxx Xxxxxxx
--------------------------------
Name: M. XXXX XXXXXXX
Title: ASSISTANT SECRETARY
-----------------------------------
Xxxx X. Xxxxxx, as Trustee
-----------------------------------
Xxxxxxx Xxxxx, as Trustee
-----------------------------------
Xxxxxx X. Xxxxxxx, as Trustee
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EXHIBIT B
[FORM OF CERTIFICATE DEPOSITARY AGREEMENT]
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EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT TO SUCCESS BANCSHARES OR AN
AFFILIATE OF SUCCESS BANCSHARES IN COMPLIANCE WITH APPLICABLE LAW AND SECTION
5.11 OF THE TRUST AGREEMENT
Certificate Number Number of Common Securities
C-__
Certificate Evidencing Common Securities
of
Success Capital Trust I
____% Common Securities
(liquidation amount $10 per Common Security)
Success Capital Trust I, a statutory business trust formed under the
laws of the State of Delaware ("Success Capital"), hereby certifies that Success
Bancshares, Inc. (the "Holder") is the registered owner of _________ (_____)
common securities of Success Capital representing undivided beneficial interests
in the assets of Success Capital and has designated the ____% Common Securities
(liquidation amount $10 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 Success
Capital, dated as of __________________, 1998, as the same may be amended from
time to time (the "Trust Agreement") among Success Bancshares, Inc. as
Depositor, Bankers Trust Company, as Property Trustee, Bankers Trust (Delaware),
as Delaware Trustee, the Administrative Trustees named therein, and the Holders
of Trust Securities, including the designation of the terms of the Common
Securities as set forth therein. Success Capital will furnish a copy of the
Trust Agreement to the Holder without charge upon written request to Success
Capital at its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
Terms used but not defined herein have the meanings set forth in the
Trust Agreement.
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IN WITNESS WHEREOF, one of the Administrative Trustees of Success
Capital has executed this certificate this ___ day of ______________, ____.
SUCCESS CAPITAL TRUST I
By:
-----------------------------------
Name:
----------------------------------
Administrative Trustee
AUTHENTICATED:
BANKERS TRUST COMPANY,
AS SECURITIES REGISTRAR
By:
------------------------------------------------------
Name:
-----------------------------------------------------
Signatory Officer
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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 Depository Trust Company, a New York Corporation
("DTC"), to Success Capital Trust I or its agent for registration of transfer,
exchange or payment, and any Preferred Security Certificate issued is registered
in the name of such nominee as is requested by an authorized representative of
DTC (and any payment is made to such entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO A PERSON IS WRONGFUL inasmuch as the registered owner hereof,
has an interest herein.]
NO EMPLOYEE BENEFIT OR OTHER PLAN OR INDIVIDUAL RETIREMENT ACCOUNT
SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE") (EACH, A "PLAN"), NO ENTITY WHOSE UNDERLYING ASSETS INCLUDE
"PLAN ASSETS" BY REASON OF ANY PLAN'S INVESTMENT IN THE ENTITY (A "PLAN ASSET
ENTITY"), AND NO PERSON INVESTING "PLAN ASSETS" OF ANY PLAN, MAY ACQUIRE OR HOLD
THIS PREFERRED SECURITIES CERTIFICATE OR ANY INTEREST HEREIN, UNLESS SUCH
PURCHASE OR HOLDING IS COVERED BY THE EXEMPTIVE RELIEF AVAILABLE UNDER U.S.
DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 96-23,
95-60, 91-38, 90-1 OR 84-14 OR ANOTHER APPLICABLE EXEMPTION WITH RESPECT TO SUCH
PURCHASE OR HOLDING AND, IN THE CASE OF ANY PURCHASER OR HOLDER RELYING ON ANY
EXEMPTION OTHER THAN PTCE 96-23, 95-60, 91-38, 90-1 OR 84-14, HAS COMPLIED WITH
ANY REQUEST BY SUCCESS BANCSHARES OR SUCCESS CAPITAL FOR AN OPINION OF COUNSEL
OR OTHER EVIDENCE WITH RESPECT TO THE APPLICABILITY OF SUCH EXEMPTION. ANY
PURCHASER OR HOLDER OF THIS PREFERRED SECURITIES CERTIFICATE OR ANY INTEREST
HEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING HEREOF
THAT EITHER (A) THE PURCHASER AND HOLDER ARE NOT A PLAN OR A PLAN ASSET ENTITY
AND IS NOT PURCHASING SUCH SECURITIES ON BEHALF OF OR WITH "PLAN ASSETS" OF ANY
PLAN, OR (B) THE PURCHASE AND HOLDING OF THE PREFERRED SECURITIES IS COVERED BY
THE EXEMPTIVE RELIEF PROVIDED BY PTCE 96-23, 95-60, 91-38, 90-1 OR 84-14 OR
ANOTHER APPLICABLE EXEMPTION.
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CERTIFICATE NUMBER NUMBER OF PREFERRED SECURITIES
P-__
CUSIP NO. ________________________
CERTIFICATE EVIDENCING PREFERRED SECURITIES
OF
SUCCESS CAPITAL TRUST I
____% PREFERRED SECURITIES
(LIQUIDATION AMOUNT $10 PER PREFERRED SECURITY)
Success Capital Trust I, a statutory business trust formed under the
laws of the State of Delaware ("Success Capital"), hereby certifies that
_______________ (the "Holder") is the registered owner of ( ) preferred
securities of Success Capital representing a preferred undivided beneficial
interest in the assets of Success Capital and has designated the Success Capital
Trust I ____ % Preferred Securities (liquidation amount $10 per Preferred
Security) (the "Preferred Securities"). The Preferred Securities are
transferable on the books and records of Success Capital, 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 Success Capital, dated as of __________________,
1998, as the same may be amended from time to time (the "Trust Agreement"),
among Success 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 Success Bancshares, Inc., an Illinois corporation, and
Bankers Trust Company, as guarantee trustee, dated as of __________________,
1998 (the "Guarantee Agreement"), to the extent provided therein. Success
Capital will furnish a copy of Success Capital Agreement and the Guarantee
Agreement to the Holder without charge upon written request to Success Capital
at its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees of Success
Capital has executed this certificate this _______ day of ____________, 19__.
SUCCESS CAPITAL TRUST I
By:
-------------------------------
Name:
-----------------------------
Administrative Trustee
AUTHENTICATED:
BANKERS TRUST COMPANY,
AS SECURITIES REGISTRAR
By:
------------------------------------------------------
Name:
----------------------------------------------------
Authorized Signatory
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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)
irrevocably appoints
------------------------------------------------------------
--------------------------------------------------------------------------------
agent to transfer this Preferred Security Certificate on the books of Success
Capital. 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.
63
