EXHIBIT 4(u)
================================================================================
AMENDED AND RESTATED TRUST AGREEMENT
by and among
COMPASS BANCSHARES, INC.,
As Sponsor
XX XXXXXX XXXXX BANK,
As Property Trustee
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION,
As Delaware Trustee
and
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
Dated as of March [___], 2002
COMPASS TRUST [___]
================================================================================
COMPASS TRUST [___]
CROSS REFERENCE TABLE(1)
Section of Trust
Indenture Act of Section of
1939, as amended Agreement
---------------- ---------
310(a).................................................................................................6.3
310(b)......................................................................................6.3(c); 6.3(d)
310(c)........................................................................................Inapplicable
311(a)..............................................................................................2.2(b)
311(b)..............................................................................................2.2(b)
311(c)........................................................................................Inapplicable
312(a)..............................................................................................2.2(a)
312(b)..............................................................................................2.2(b)
312(c)........................................................................................Inapplicable
313(a).................................................................................................2.3
313(b).................................................................................................2.3
313(c).................................................................................................2.3
313(d).................................................................................................2.3
314(a).................................................................................................2.4
314(b)........................................................................................Inapplicable
314(c).................................................................................................2.5
314(d)........................................................................................Inapplicable
314(e).................................................................................................2.5
314(f)........................................................................................Inapplicable
315(a).....................................................................................3.9(b); 3.10(a)
315(b)..............................................................................................2.7(a)
315(c)..............................................................................................3.9(a)
315(d)..............................................................................................3.9(b)
316(a).................................................................................2.6; 7.5(b); 7.6(c)
316(b)........................................................................................Inapplicable
316(c)........................................................................................Inapplicable
317(a)................................................................................................3.16
317(b)........................................................................................Inapplicable
318(a)..............................................................................................2.1(c)
----------
(1) This Cross-Reference Table does not constitute part of the Agreement and
shall not have any bearing upon the interpretation of any of its terms or
provisions.
i
TABLE OF CONTENTS
ARTICLE 1 - INTERPRETATION AND DEFINITIONS...............................................................1
SECTION 1.1. Interpretation and Definitions...........................................................1
ARTICLE 2 - TRUST INDENTURE ACT..........................................................................8
SECTION 2.1. Trust Indenture Act; Application.........................................................8
SECTION 2.2. Lists of Holders of Securities...........................................................9
SECTION 2.3. Reports by the Property Trustee..........................................................9
SECTION 2.4. Periodic Reports to the Property Trustee.................................................9
SECTION 2.5. Evidence of Compliance with Conditions Precedent........................................10
SECTION 2.6. Trust Enforcement Events; Waiver........................................................10
SECTION 2.7. Trust Enforcement Event; Notice.........................................................11
ARTICLE 3 - ORGANIZATION................................................................................12
SECTION 3.1. Name and Organization...................................................................12
SECTION 3.2. Office..................................................................................12
SECTION 3.3. Purpose.................................................................................12
SECTION 3.4. Authority...............................................................................13
SECTION 3.5. Title to Property of the Trust..........................................................13
SECTION 3.6. Powers and Duties of the Administrative Trustees........................................13
SECTION 3.7. Prohibition of Actions by the Trust and the Trustees....................................16
SECTION 3.8. Powers and Duties of the Property Trustee...............................................17
SECTION 3.9. Certain Duties and Responsibilities of the Property Trustee.............................19
SECTION 3.10. Certain Rights of Property Trustee.....................................................20
SECTION 3.11. Delaware Trustee.......................................................................23
SECTION 3.12. Execution of Documents.................................................................23
SECTION 3.13. Not Responsible for Recitals or Issuance of Securities.................................23
SECTION 3.14. Duration of Trust......................................................................23
SECTION 3.15. Mergers................................................................................23
SECTION 3.16. Property Trustee May File Proofs of Claim..............................................25
ARTICLE 4 - SPONSOR.....................................................................................26
SECTION 4.1. Responsibilities of the Sponsor.........................................................26
SECTION 4.2. Indemnification and Fees and Expenses of the Trustees...................................26
SECTION 4.3. Compensation of the Trustees............................................................27
ARTICLE 5 - TRUST COMMON SECURITIES HOLDER..............................................................27
SECTION 5.1. Debenture Issuer's Receipt of Common Securities.........................................27
SECTION 5.2. Covenants of the Common Securities Holder...............................................27
ARTICLE 6 - TRUSTEES....................................................................................27
SECTION 6.1. Number of Trustees......................................................................27
SECTION 6.2. Delaware Trustee; Eligibility...........................................................28
SECTION 6.3. Property Trustee; Eligibility...........................................................28
SECTION 6.4. Qualifications of Administrative Trustees and Delaware Trustee Generally................29
SECTION 6.5. Initial Administrative Trustees.........................................................29
SECTION 6.6. Appointment, Removal and Resignation of Trustees........................................29
SECTION 6.7. Vacancies among Trustees................................................................31
SECTION 6.8. Effect of Vacancies.....................................................................31
ii
SECTION 6.9. Meetings................................................................................31
SECTION 6.10. Delegation of Power....................................................................32
SECTION 6.11. Merger, Conversion, Consolidation or Succession to Business............................32
ARTICLE 7 - TERMS OF SECURITIES.........................................................................32
SECTION 7.1. General Provisions Regarding Securities.................................................32
SECTION 7.2. Distributions...........................................................................34
SECTION 7.3. Redemption of Securities................................................................35
SECTION 7.4. Redemption Procedures...................................................................36
SECTION 7.5. Voting Rights of Capital Securities.....................................................37
SECTION 7.6. Voting Rights of Common Securities......................................................40
SECTION 7.7. Paying Agent............................................................................41
SECTION 7.8. Listing.................................................................................41
SECTION 7.9. Transfer of Securities..................................................................41
SECTION 7.10. Mutilated, Destroyed, Lost or Stolen Certificates......................................42
SECTION 7.11. Deemed Security Holders................................................................43
SECTION 7.12. Global Securities......................................................................43
ARTICLE 8 - DISSOLUTION AND TERMINATION OF TRUST........................................................45
SECTION 8.1. Dissolution and Termination of Trust....................................................45
SECTION 8.2. Liquidation Distribution Upon Dissolution of the Trust..................................46
ARTICLE 9 - LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, DELAWARE TRUSTEES OR OTHERS...............47
SECTION 9.1. Liability...............................................................................47
SECTION 9.2. Exculpation.............................................................................47
SECTION 9.3. Fiduciary Duty..........................................................................48
SECTION 9.4. Indemnification.........................................................................48
SECTION 9.5. Outside Businesses......................................................................51
ARTICLE 10 - ACCOUNTING.................................................................................51
SECTION 10.1. Fiscal Year............................................................................51
SECTION 10.2. Certain Accounting Matters.............................................................51
SECTION 10.3. Banking................................................................................52
SECTION 10.4. Withholding............................................................................52
ARTICLE 11 - AMENDMENTS AND MEETINGS....................................................................52
SECTION 11.1. Amendments.............................................................................52
SECTION 11.2. Meetings of the Holders of Securities; Action by Written Consent.......................54
ARTICLE 12 - REPRESENTATIONS OF PROPERTY TRUSTEE AND DELAWARE TRUSTEE...................................56
SECTION 12.1. Representations and Warranties of the Property Trustee.................................56
SECTION 12.2. Representations and Warranties of the Delaware Trustee.................................57
ARTICLE 13 - MISCELLANEOUS..............................................................................57
SECTION 13.1. Notices................................................................................57
SECTION 13.2. Governing Law..........................................................................58
SECTION 13.3. Intention of the Parties...............................................................58
SECTION 13.4. Headings...............................................................................59
SECTION 13.5. Successors and Assigns.................................................................59
SECTION 13.6. Partial Enforceability.................................................................59
SECTION 13.7. Counterparts...........................................................................59
iii
EXHIBITS
Exhibit A Form of Capital Security Certificate
Exhibit B Form of Common Security Certificate
iv
AMENDED AND RESTATED TRUST AGREEMENT
This AMENDED AND RESTATED TRUST AGREEMENT (this "Trust Agreement"),
dated as of March [___], 2002 is entered into by and among (i) COMPASS
BANCSHARES, INC., a Delaware corporation (the "Sponsor"), (ii) XX XXXXXX XXXXX
BANK, as property trustee, (in each such capacity, the "Property Trustee"),
(iii) CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION, as Delaware trustee (the
"Delaware Trustee"), (iv) [_________________________________________________],
an individual, [_______________], an individual, and [______________], an
individual, each of whose address is c/o Compass Bancshares, Inc., 00 Xxxxx 00xx
Xxxxxx, Xxxxxxxxxx, Xxxxxxx 00000, as administrative trustee (each an
"Administrative Trustee" and collectively the "Administrative Trustees") (the
Property Trustee, the Delaware Trustee and the Administrative Trustees referred
to collectively as the "Trustees") and (v) the several Holders, as hereinafter
defined.
RECITALS
WHEREAS, the Trustees and the Sponsor established Compass Trust [___]
(the "Trust"), a business trust under the Business Trust Act (as defined,
together with other capitalized terms, herein) pursuant to a Trust Agreement
dated as of January 7, 2002 (the "Original Trust Agreement"), and a Certificate
of Trust (the "Certificate of Trust") filed with the Secretary of State of the
State of Delaware on January 4, 2002;
WHEREAS, the sole purpose of the Trust shall be to issue certain
securities representing undivided beneficial interests in the assets of the
Trust, in exchange for the Debt Securities issued by the Debenture Issuer and to
engage in only those activities necessary or incidental thereto; and
WHEREAS, the parties hereto, by this Trust Agreement, amend and restate
each and every term and provision of the Original Trust Agreement;
NOW, THEREFORE, it being the intention of the parties hereto to
continue the Trust as a business trust under the Business Trust Act and that
this Trust Agreement constitute the governing instrument of such business trust,
the Trustees hereby declare that all assets contributed to the Trust be held in
trust for the benefit of the Holders of the Securities representing undivided
beneficial interests in the assets of the Trust issued hereunder, subject to the
provisions of this Trust Agreement.
ARTICLE 1 - INTERPRETATION AND DEFINITIONS
SECTION 1.1. INTERPRETATION AND DEFINITIONS.
Unless the context otherwise requires:
(a) capitalized terms used in this Trust Agreement but not defined in
the preamble above have the meanings assigned to them in this Section 1.1;
1
(b) a term defined anywhere in this Trust Agreement has the same
meaning throughout;
(c) all references to "the Trust Agreement" or "this Trust Agreement"
are to this Trust Agreement as modified, supplemented or amended from time to
time;
(d) all references in this Trust Agreement to Articles, Sections,
Recitals and Exhibits are to Articles and Sections of, or Recitals and Exhibits
to, this Trust Agreement unless otherwise specified;
(e) unless otherwise defined in this Trust Agreement, a term defined in
the Trust Indenture Act has the same meaning when used in this Trust Agreement;
(f) a reference to the singular includes the plural and vice versa and
a reference to any masculine form of a term shall include the feminine form of a
term, as applicable; and
(g) the following terms have the following meanings:
"Administrative Trustee" means any Trustee other than the
Property Trustee and the Delaware Trustee.
"Affiliate" has the same meaning as given to that term in Rule
405 of the Securities Act or any successor rule thereunder.
"Authorized Officer" of a Person means any Person that is
authorized to bind such Person.
"Beneficial Owners" means, for Capital Securities represented
by a Global Security, the Person who acquires an interest in the
Capital Securities which is reflected on the records of the Depositary
through the Depositary Participants.
"Business Day" means any day other than (i) a Saturday or
Sunday, (ii) a day on which banking institutions in the Borough of
Manhattan, The City of New York are authorized or required by law or
executive order to remain closed or (iii) a day on which the Corporate
Trust Office of the Debenture Trustee, or, with respect to the
Securities of a series initially issued to a Trust, the principal
office of the Property Trustee under the related Trust Agreement, is
closed for business.
"Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code Section 3801 et seq., as it may be amended
from time to time, or any successor legislation.
"Capital Security" has the meaning specified in Section 7.1.
"Capital Security Certificate" means a definitive certificate
in fully registered form representing a Capital Security, substantially
in the form of Exhibit A.
2
"Certificate" means a Common Security Certificate or a Capital
Security Certificate.
"Certificate of Trust" has the meaning specified in the
Recitals hereto.
"Closing Date" means the date on which the Capital Securities
are issued and sold.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time, or any successor legislation. A reference to a
specific section of the Code refers not only to such specific section
but also to any corresponding provision of any federal tax statute
enacted after the date of this Trust Agreement, as such specific
section or corresponding provision is in effect on the date of
application of the provisions of this Trust Agreement containing such
reference.
"Commission" means the Securities and Exchange Commission or
any successor thereto.
"Common Securities Holder" means Compass Bancshares, Inc., or
any successor thereto, in its capacity as purchaser and holder of all
of the Common Securities issued by the Trust.
"Common Security" has the meaning specified in Section 7.1.
"Common Security Certificate" means a definitive certificate
in fully registered form representing a Common Security, substantially
in the form of Exhibit B hereto.
"Corporate Trust Office" means the principal office of the
Property Trustee at which at any particular time its corporate trust
business shall be administered, which office at the date of execution
of this Trust Agreement is located at c/o XX Xxxxxx Xxxxx, 0000
Xxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000.
"Covered Person" means (a) any officer, director, shareholder,
partner, member, representative, employee or agent of (i) the Trust or
(ii) the Trust's Affiliates; and (b) any Holder.
"Debenture Issuer" means Compass Bancshares, Inc., or any
successor thereto under the Indenture, in its capacity as issuer of the
Debt Securities under the Indenture.
"Debenture Issuer Indemnified Person" means (a) any
Administrative Trustee; (b) any Affiliate of any Administrative
Trustee; (c) any officers, directors, shareholders, members, partners,
employees, representatives or agents of any Administrative Trustee or
any Affiliate thereof; or (d) any officer, employee or agent of the
Trust or its Affiliates.
3
"Debenture Trustee" means XX Xxxxxx Chase Bank, in its
capacity as trustee under the Indenture until a successor is appointed
thereunder, and thereafter means such successor trustee.
"Debt Securities" means the series of debentures to be issued
by the Debenture Issuer under the Indenture and held by the Property
Trustee.
"Delaware Trustee" means the Trustee meeting the eligibility
requirements set forth in Section 6.2.
"Depositary" means, with respect to Securities issuable in
whole or in part in the form of one or more Global Securities, a
clearing agency registered under the Exchange Act that is designated to
act as Depositary for such Securities.
"Depositary Participant" means a member of, or participant in,
the Depositary.
"Direct Action" has the meaning specified in Section 3.8(e).
"Distribution" means a distribution payable to Holders of
Securities in accordance with Section 7.2.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, or any successor legislation.
"Federal Reserve" means the Board of Governors of the Federal
Reserve System, or any successor thereto.
"Fiduciary Indemnified Person" has the meaning set forth in
Section 9.4(b).
"Fiscal Year" has the meaning specified in Section 10.1.
"Global Security" means a fully registered, global Capital
Security Certificate.
"Guarantee" means the Guarantee Agreement, dated the date
hereof, of the Sponsor in respect of the Securities.
"Holder" means any holder of Securities, as registered on the
books and records of the Trust.
"Indemnified Person" means a Debenture Issuer Indemnified
Person or a Fiduciary Indemnified Person.
"Indenture" means the Indenture, dated as of the date hereof,
between the Debenture Issuer and XX Xxxxxx Xxxxx Bank, as Trustee,
pursuant to which the Debt Securities are to be issued.
4
"Indenture Event of Default" has the meaning given to the term
"Event of Default" in the Indenture.
"Investment Company" means an investment company as defined in
the Investment Company Act and the regulations promulgated thereunder.
"Investment Company Act" means the Investment Company Act of
1940, as amended from time to time, or any successor legislation.
"Investment Company Event" means the receipt by the Sponsor
and the Trust of an opinion of an independent counsel experienced in
matters relating to investment companies, to the effect that, as a
result of the occurrence of a change in law or regulation or a change
in interpretation or application of law or regulation by any
legislative body, court, governmental agency or regulatory authority (a
"Change in 1940 Act Law"), there is more than an insubstantial risk
that the Trust is or will be considered an "investment company" that is
required to be registered under the Investment Company Act, which
Change in 1940 Act Law becomes effective on or after the Closing Date.
"Legal Action" has the meaning specified in Section 3.6(g).
"List of Holders" has the meaning specified in Section 2.2(a).
"Majority in Liquidation Amount" means, except as provided in
the terms of the Capital Securities or by the Trust Indenture Act,
Holder(s) of outstanding Securities, voting together as a single class,
or, as the context may require, Holders of outstanding Capital
Securities or Holders of outstanding Common Securities, voting
separately as a class, who are the record owners of more than 50% of
the aggregate liquidation amount (including the stated amount that
would be paid on redemption, liquidation or otherwise, plus accumulated
and unpaid Distributions to the date upon which the voting percentages
are determined) of all outstanding Securities of the relevant class.
"New York Stock Exchange" means the New York Stock Exchange,
Inc. or any successor thereto.
"Officers' Certificate" means, with respect to any Person, a
certificate signed on behalf of such Person by two Authorized Officers
of such Person. Any Officers' Certificate delivered with respect to
compliance with a condition or covenant provided for in this Trust
Agreement shall include:
(i) a statement that each officer signing the
Officers' Certificate has read the covenant or condition and
the definitions relating thereto;
(ii) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer on
behalf of such Person in rendering the Officers' Certificate;
5
(iii) a statement that each such officer has made
such examination or investigation as, in such officer's
opinion, is necessary to enable such officer on behalf of such
Person to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of
each such officer acting on behalf of such Person, such
condition or covenant has been complied with; provided, that
the term "Officers' Certificate", when used with reference to
Administrative Trustees who are natural persons shall mean a
certificate signed by two or more of the Administrative
Trustees which otherwise satisfies the foregoing requirements.
"Paying Agent" has the meaning specified in Section 3.8(h).
"Payment Amount" has the meaning specified in Section 7.2(c).
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint
stock company, limited liability company, trust, unincorporated
association, or government or any agency or political subdivision
thereof, or any other entity of whatever nature.
"Property Account" has the meaning specified in Section
3.8(c).
"Property Trustee" means the Trustee meeting the eligibility
requirements set forth in Section 6.3.
"Pro Rata" means pro rata to each Holder of Securities
according to the aggregate liquidation amount of the Securities held by
the relevant Holder in relation to the aggregate liquidation amount of
all Securities outstanding.
"Quorum" means a majority of the Administrative Trustees or,
if there are only two Administrative Trustees, both of them.
"Redemption/Distribution Notice" has the meaning specified in
Section 7.4(a).
"Redemption Price" means the amount for which the Securities
will be redeemed, which amount will equal (i) the redemption price paid
by the Debenture Issuer to repay or redeem, in whole or in part, the
Debt Securities held by the Trust which shall include accumulated and
unpaid Distributions on such Securities through the date of their
redemption or (ii) such lesser amount as will be received by the Trust
in respect of the Debt Securities so repaid or redeemed.
"Regulatory Capital Event" means the reasonable determination
by the Sponsor that, as a result of (a) any amendment to, or change
(including any announced prospective change) in, the laws (or any
regulations thereunder) of the United States or (b) any official or
administrative pronouncement or action or judicial decision for
interpreting or
6
applying such laws or regulations, which amendment or change is
effective or such pronouncement or decision is announced on or after
the date of original issuance of the Capital Securities, there is more
than an insubstantial risk of impairment of the Sponsor's ability to
treat the Capital Securities (or any substantial portion thereof) as
Tier 1 capital (or its then equivalent) for purposes of the capital
adequacy guidelines of the Federal Reserve in effect and applicable to
the Sponsor.
"Related Party" means, with respect to the Sponsor, any direct
or wholly owned subsidiary of the Sponsor or any Person that owns,
directly or indirectly, 100% of the outstanding voting securities of
the Sponsor.
"Responsible Officer" means, with respect to the Property
Trustee, any officer with direct responsibility for the administration
of this Trust Agreement and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is
referred because of that officer's knowledge of and familiarity with
the particular subject.
"Securities" means the Common Securities and the Capital
Securities.
"Securities Act" means the Securities Act of 1933, as amended
from time to time, or any successor legislation.
"Special Event" means a Tax Event, a Regulatory Capital Event
or an Investment Company Event.
"Sponsor" means Compass Bancshares, Inc., a Delaware
corporation, or any successor entity in a merger, consolidation,
amalgamation or replacement by or conveyance, transfer or lease of its
properties substantially as an entirety, in its capacity as sponsor of
the Trust.
"Successor Delaware Trustee" has the meaning specified in
Section 6.6(b).
"Successor Entity" has the meaning specified in Section
3.15(b)(i).
"Successor Property Trustee" has the meaning specified in
Section 6.6(b).
"Successor Security" has the meaning specified in Section
3.15(b)(i)b.
"Super Majority" has the meaning specified in Section
2.6(a)(ii).
"Tax Event" means the receipt by the Sponsor or the Trust of
an opinion of tax counsel (which may be the Sponsor's counsel or
counsel of an Affiliate but not an employee and which must be
reasonably acceptable to the Property Trustee) experienced in such
matters, to the effect that, as a result of (a) any amendment to, or
change (including any announced prospective change) in, the laws (or
any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or
7
therein, or (b) any court, governmental agency or regulatory authority
interpreting or applying such laws or regulations, there is more than
an insubstantial risk that (i) the Trust is, or will be within ninety
(90) days of the date of such opinion, subject to the United States
federal income tax with respect to income received or accrued on the
Debt Securities, (ii) interest payable by the Debenture Issuer on the
Debt Securities is not, or within ninety (90) days of the date of such
opinion will not be, deductible, in whole or in part, by the Debenture
Issuer for United States federal income tax purposes, or (iii) the
Trust is, or will be within ninety (90) days of the date of such
opinion, subject to more than a de minimus amount of other taxes,
duties or other governmental charges.
"10% in Liquidation Amount" means, except as provided in the
terms of the Capital Securities or by the Trust Indenture Act,
Holder(s) of outstanding Securities, voting together as a single class,
or, as the context may require, Holders of outstanding Capital
Securities or Holders of outstanding Common Securities, voting
separately as a class, who are the record owners of 10% or more of the
aggregate liquidation amount (including the stated amount that would be
paid on redemption, liquidation or otherwise, plus accumulated and
unpaid Distributions to the date upon which the voting percentages are
determined) of all outstanding Securities of the relevant class.
"Treasury Regulations" means the income tax regulations,
including temporary and proposed regulations, promulgated under the
Code by the United States Treasury, as such regulations may be amended
from time to time (including corresponding provisions of succeeding
regulations).
"Trust" has the meaning specified in the Recitals.
"Trust Enforcement Event" in respect of the Securities means
an Indenture Event of Default has occurred and is continuing in respect
of the Debt Securities.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended from time to time, or any successor legislation.
"Trustee" or "Trustees" means each Person who has signed this
Trust Agreement as a trustee, so long as such Person shall continue as
a trustee in accordance with the terms hereof, and all other Persons
who may from time to time be duly appointed, qualified and serving as
Trustees in accordance with the provisions hereof, and references
herein to a Trustee or the Trustees shall refer to such Person or
Persons solely in their capacity as trustees hereunder.
ARTICLE 2 - TRUST INDENTURE ACT
SECTION 2.1. TRUST INDENTURE ACT; APPLICATION.
(a) This Trust Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Trust Agreement and shall, to
the extent applicable, be governed by such provisions.
8
(b) The Property Trustee shall be the only Trustee which is a Trustee
for the purposes of the Trust Indenture Act.
(c) If and to the extent that any provision of this Trust Agreement
conflicts with the duties imposed by Sections 310 to 317, inclusive, of the
Trust Indenture Act, such imposed duties shall control.
(d) The application of the Trust Indenture Act to this Trust Agreement
shall not affect the Trust's classification as a grantor trust for United States
federal income tax purposes.
SECTION 2.2. LISTS OF HOLDERS OF SECURITIES.
(a) Each of the Sponsor and the Administrative Trustees on behalf
of the Trust shall provide the Property Trustee (i), except while the Capital
Securities are represented by one or more Global Securities, at least five
Business Days prior to the date for payment of Distributions, a list, in such
form as the Property Trustee may reasonably require, of the names and addresses
of the Holders of the Securities ("List of Holders") as of the record date
relating to the payment of such Distributions, and (ii) at any other time,
within thirty (30) days of receipt by the Trust of a written request from the
Property Trustee for a List of Holders, as of a date no more than fifteen (15)
days before such List of Holders is given to the Property Trustee; provided that
neither the Sponsor nor the Administrative Trustees on behalf of the Trust shall
be obligated to provide such List of Holders at any time the List of Holders
does not differ from the most recent List of Holders given to the Property
Trustee by the Sponsor and the Administrative Trustees on behalf of the Trust.
The Property Trustee shall preserve, in as current a form as is reasonably
practicable, all information contained in Lists of Holders given to it or which
it receives in the capacity as Paying Agent (if acting in such capacity),
provided that the Property Trustee may destroy any List of Holders previously
given to it on receipt of a new List of Holders.
(b) The Property Trustee shall comply with its obligations under, and
shall be entitled to the benefits of, Sections 311(a), 311(b) and 312(b) of the
Trust Indenture Act.
SECTION 2.3. REPORTS BY THE PROPERTY TRUSTEE.
Within sixty (60) days after [June 15] of each year (commencing with
the year of the first anniversary of the issuance of the Capital Securities),
the Property Trustee shall provide to the Holders of the Capital Securities such
reports as are required by Section 313 of the Trust Indenture Act, if any, in
the form and in the manner provided by Section 313 of the Trust Indenture Act.
The Property Trustee shall also comply with the requirements of Section 313(d)
of the Trust Indenture Act.
SECTION 2.4. PERIODIC REPORTS TO THE PROPERTY TRUSTEE.
Each of the Sponsor and the Administrative Trustees on behalf of the
Trust shall provide to the Property Trustee such documents, reports and
information as required by Section 314 of the
9
Trust Indenture Act (if any) and the compliance certificate required by Section
314 of the Trust Indenture Act in the form, in the manner and at the times
required by Section 314 of the Trust Indenture Act, but in no event later than
120 days after the end of each calendar year.
SECTION 2.5. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
Each of the Sponsor and the Administrative Trustees on behalf of the
Trust shall provide to the Property Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Trust Agreement that relate
to any of the matters set forth in Section 314(c) of the Trust Indenture Act.
Any certificate or opinion required to be given by an officer pursuant to
Section 314(c)(1) may be given in the form of an Officers' Certificate.
SECTION 2.6. TRUST ENFORCEMENT EVENTS; WAIVER.
(a) The Holders of a Majority in Liquidation Amount of the Capital
Securities may, by vote or written consent, on behalf of the Holders of all of
the Capital Securities, waive any past Trust Enforcement Event in respect of the
Capital Securities and its consequences, provided that, if the underlying
Indenture Event of Default:
(i) is not waivable under the Indenture, the Trust Enforcement
Event under the Trust Agreement shall also not be waivable; or
(ii) requires the consent or vote of the Holders of greater
than a majority in principal amount of the Debt Securities (a "Super
Majority") to be waived under the Indenture, the related Trust
Enforcement Event under the Trust Agreement may only be waived by the
vote or written consent of the Holders of at least the proportion in
liquidation amount of the Capital Securities that the relevant Super
Majority represents of the aggregate principal amount of the Debt
Securities outstanding.
The foregoing provisions of this Section 2.6(a) shall be in lieu of
Section 316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of
the Trust Indenture Act is hereby expressly excluded from this Trust Agreement
and the Securities, as permitted by the Trust Indenture Act. Upon such waiver,
any such default shall cease to exist, and any Trust Enforcement Event with
respect to the Capital Securities arising therefrom shall be deemed to have been
cured, for every purpose of this Trust Agreement and the Capital Securities, but
no such waiver shall extend to any subsequent or other Trust Enforcement Event
with respect to the Capital Securities or impair any right consequent thereon.
Any waiver by the Holders of the Capital Securities of a Trust Enforcement Event
with respect to the Capital Securities shall also be deemed to constitute a
waiver by the Holders of the Common Securities of any such Trust Enforcement
Event with respect to the Common Securities for all purposes of this Trust
Agreement without any further act, vote, or consent of the Holders of the Common
Securities.
(b) The Holders of a Majority in Liquidation Amount of the Common
Securities may, by vote or written consent, on behalf of the Holders of all of
the Common Securities, waive any past Trust Enforcement Event in respect of the
Common Securities and its consequences, provided that, if the underlying
Indenture Event of Default:
10
(i) is not waivable under the Indenture, except where the
Holders of the Common Securities are deemed to have waived such Trust
Enforcement Event under the Trust Agreement as provided below in this
Section 2.6(b), the Trust Enforcement Event under the Trust Agreement
shall also not be waivable; or
(ii) requires the consent or vote of a Super Majority to be
waived under the Indenture, except where the Holders of the Common
Securities are deemed to have waived such Trust Enforcement Event under
the Trust Agreement as provided below in this Section 2.6(b), the Trust
Enforcement Event under the Trust Agreement may only be waived by the
vote or written consent of the Holders of at least the proportion in
liquidation amount of the Common Securities that the relevant Super
Majority represents of the aggregate principal amount of the Debt
Securities outstanding;
provided further, each Holder of Common Securities will be deemed to have waived
any Trust Enforcement Event and all Trust Enforcement Events with respect to the
Common Securities and the consequences thereof until all Trust Enforcement
Events with respect to the Capital Securities have been cured, waived or
otherwise eliminated, and until such Trust Enforcement Events with respect to
the Capital Securities have been so cured, waived or otherwise eliminated, the
Property Trustee will be deemed to be acting solely on behalf of the Holders of
the Capital Securities and only the Holders of the Capital Securities will have
the right to direct the Property Trustee in accordance with the terms of the
Securities. The foregoing provisions of this Section 2.6(b) shall be in lieu of
Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act and such
Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act are hereby
expressly excluded from this Trust Agreement and the Securities, as permitted by
the Trust Indenture Act. Subject to the foregoing provisions of this Section
2.6(b), upon such cure, waiver or other elimination, any such default shall
cease to exist and any Trust Enforcement Event with respect to the Common
Securities arising therefrom shall be deemed to have been cured for every
purpose of this Trust Agreement, but no such waiver shall extend to any
subsequent or other Trust Enforcement Event with respect to the Common
Securities or impair any right consequent thereon.
(c) A waiver of an Indenture Event of Default by the Property Trustee
at the direction of the Holders of the Capital Securities constitutes a waiver
of the corresponding Trust Enforcement Event with respect to the Capital
Securities under this Trust Agreement. The foregoing provisions of this Section
2.6(c) shall be in lieu of Section 316(a)(1)(B) of the Trust Indenture Act and
such Section 316(a)(1)(B) of the Trust Indenture Act is hereby expressly
excluded from this Trust Agreement and the Securities, as permitted by the Trust
Indenture Act.
SECTION 2.7. TRUST ENFORCEMENT EVENT; NOTICE.
(a) The Property Trustee shall, within ninety (90) days after the
occurrence of a Trust Enforcement Event actually known to a Responsible Officer
of the Property Trustee, transmit by mail, first class postage prepaid, to the
Holders of the Securities, notices of all such defaults with respect to the
Securities, unless such defaults have been cured before the giving of such
notice (the term "defaults" for the purposes of this Section 2.7(a) being hereby
defined to be an Indenture Event of Default, not including any periods of grace
provided for therein and
11
irrespective of the giving of any notice provided therein); provided that,
except for a default in the payment of principal of (or premium, if any) or
interest on any of the Debt Securities, the Property Trustee shall be protected
fully in withholding such notice if and so long as a Responsible Officer of the
Property Trustee in good faith determines that the withholding of such notice is
in the interests of the Holders of the Securities.
(b) The Property Trustee shall not be deemed to have knowledge of any
default except:
(i) a default under Sections 5.1(1) and 5.1(2) of the
Indenture; or
(ii) any default as to which the Property Trustee shall have
received written notice or of which a Responsible Officer of the
Property Trustee charged with the administration of this Trust
Agreement shall have actual knowledge.
ARTICLE 3 - ORGANIZATION
SECTION 3.1. NAME AND ORGANIZATION.
The Trust hereby continued is named "Compass Trust [___]" as such name
may be modified from time to time by the Administrative Trustees following
written notice to the Holders of Securities, the Property Trustee and the
Delaware Trustee. The Trust's activities may be conducted under the name of the
Trust or any other name deemed advisable by the Administrative Trustees.
SECTION 3.2. OFFICE.
The address of the principal office of the Trust is c/o Compass
Bancshares, Inc., 00 Xxxxx 00xx Xxxxxx, Xxxxxxxxxx, Xxxxxxx 00000. On ten (10)
Business Days' written notice to the Holders of Securities, each of the Property
Trustee, the Delaware Trustee and the Administrative Trustees may designate
another principal office.
SECTION 3.3. PURPOSE.
The exclusive purposes and functions of the Trust are (a) to issue
Securities in exchange for the Debt Securities, and (b) except as otherwise
limited herein, to engage in only those other activities necessary or incidental
thereto. The Trust shall not borrow money, issue debt or reinvest proceeds
derived from investments, pledge any of its assets or otherwise undertake (or
permit to be undertaken) any activity that would cause the Trust to be
classified as other than a grantor trust for United States federal income tax
purposes.
By the acceptance of this Trust, the Trustees, the Sponsor, the Holders
of the Capital Securities and Common Securities and the Capital Securities
Beneficial Owners will agree to treat the Trust as a grantor trust for United
States federal income tax purposes and not to take any position which is
contrary to such classification.
12
SECTION 3.4. AUTHORITY.
Subject to the limitations provided in this Trust Agreement and to the
specific duties of the Property Trustee, the Administrative Trustees shall have
exclusive authority to carry out the purposes of the Trust. An action taken by
the Administrative Trustees in accordance with their powers shall constitute the
act of and serve to bind the Trust and an action taken by the Property Trustee
on behalf of the Trust in accordance with its powers shall constitute the act of
and serve to bind the Trust. In dealing with the Trustees acting on behalf of
the Trust, no Person shall be required to inquire into the authority of the
Trustees to bind the Trust. Persons dealing with the Trust are entitled to rely
conclusively on the power and authority of the Trustees as set forth in this
Trust Agreement.
(a) Except as expressly set forth in this Trust Agreement and except if
a meeting of the Administrative Trustees is called with respect to any matter
over which the Administrative Trustees have power to act, any power of the
Administrative Trustees may be exercised by, or with the consent of, any one
such Administrative Trustee.
(b) Except as otherwise required by the Business Trust Act or
applicable law, any Administrative Trustee is authorized to execute on behalf of
the Trust any documents which the Administrative Trustees have the power and
authority to cause the Trust to execute pursuant to Section 3.6(b).
(c) An Administrative Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purposes of signing any documents which the Administrative
Trustees have power and authority to cause the Trust to execute pursuant to
Section 3.6; provided that such person is a United States Person as defined in
Section 7701(a)(30) of the Code.
SECTION 3.5. TITLE TO PROPERTY OF THE TRUST.
Except as provided in Section 3.8 with respect to the Debt Securities
and the Property Account or as otherwise provided in this Trust Agreement, legal
title to all assets of the Trust shall be vested in the Trust. The Holders shall
not have legal title to any part of the assets of the Trust, but shall have an
undivided beneficial ownership interest in the assets of the Trust.
SECTION 3.6. POWERS AND DUTIES OF THE ADMINISTRATIVE TRUSTEES.
The Administrative Trustees shall have the exclusive power, duty and
authority, and are hereby authorized and directed, to cause the Trust to engage
in the following activities:
(a) to establish the terms and form of the Capital Securities and the
Common Securities in the manner specified in Section 7.1 and issue the Capital
Securities and the Common Securities in exchange for the Debt Securities in
accordance with this Trust Agreement; provided, however, that the Trust may
issue no more than one series of Capital Securities and no more than one series
of Common Securities, and, provided further, that there shall be no interests in
the Trust other than the Securities, and the issuance of Securities shall be
13
limited to a simultaneous issuance of both Capital Securities and Common
Securities on the Closing Date;
(b) in connection with the issuance of the Capital Securities, at the
direction of the Sponsor, to execute and file any documents prepared by the
Sponsor, or take any acts as determined by the Sponsor to be necessary, in order
to qualify or register all or part of the Capital Securities in any State in
which the Sponsor has determined to qualify or register such Capital Securities
for sale;
(c) to acquire the Debt Securities in exchange for the issuance of the
Capital Securities and the Common Securities; provided, however, that the
Administrative Trustees shall cause legal title to the Debt Securities to be
held of record in the name of the Property Trustee for the benefit of the
Holders of the Capital Securities and the Holders of the Common Securities;
(d) to give the Sponsor and the Property Trustee prompt written notice
of the occurrence of a Special Event; provided that the Administrative Trustees
shall consult with the Sponsor and the Property Trustee before taking or
refraining from taking any action in relation to any such Special Event;
(e) to establish a record date with respect to all actions to be taken
hereunder that require a record date be established, including and with respect
to, for the purposes of Section 316(c) of the Trust Indenture Act,
Distributions, voting rights, redemptions and exchanges, and to issue relevant
notices to the Holders of Capital Securities and Holders of Common Securities as
to such actions and applicable record dates;
(f) to take all actions and perform such duties as may be required of
the Administrative Trustees pursuant to the terms of this Trust Agreement and
the Securities;
(g) to bring or defend, pay, collect, compromise, arbitrate, resort to
legal action or otherwise adjust claims or demands of or against the Trust
("Legal Action"), unless, pursuant to Section 3.8(e), the Property Trustee has
the exclusive power to bring such Legal Action;
(h) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors and
consultants to conduct only those services that the Administrative Trustees have
authority to conduct directly, and to pay reasonable compensation for such
services, provided that such person is a United States Person as defined in
Section 7701(a)(30) of the Code;
(i) to cause the Trust to comply with the Trust's obligations under the
Trust Indenture Act;
(j) to give the certificate required by Section 314(a)(4) of the Trust
Indenture Act to the Property Trustee, which certificate may be executed by any
Administrative Trustee;
14
(k) to incur expenses that are necessary or incidental to carry out any
of the purposes of the Trust;
(l) to act as, or appoint another Person to act as, registrar and
transfer agent for the Securities;
(m) to give prompt written notice to the Holders of the Securities of
any notice received from the Debenture Issuer of its election to defer payments
of interest on the Debt Securities by extending the interest payment period
under the Debt Securities as authorized by the Indenture;
(n) to take all action that may be necessary or appropriate for the
preservation and the continuation of the Trust's valid existence, rights,
franchises and privileges as a statutory business trust under the laws of the
State of Delaware and of each other jurisdiction in which such existence is
necessary to protect the limited liability of the Holders of the Capital
Securities and the Holders of the Common Securities or to enable the Trust to
effect the purposes for which the Trust was created;
(o) to take any action, not inconsistent with applicable law, that the
Administrative Trustees determine in their discretion to be necessary or
desirable in carrying out the purposes and functions of the Trust as set out in
Section 3.3 or the activities of the Trust as set out in this Section 3.6,
including, but not limited to:
(i) causing the Trust not to be deemed to be an Investment
Company required to be registered under the Investment Company Act;
(ii) causing the Trust to be classified as a grantor trust for
United States federal income tax purposes; and
(iii) cooperating with the Debenture Issuer to ensure that the
Debt Securities will be treated as indebtedness of the Debenture Issuer
for United States federal income tax purposes.
(p) to take all action necessary to cause all applicable tax returns
and tax information reports that are required to be filed with respect to the
Trust to be duly prepared and filed by the Administrative Trustees, on behalf of
the Trust; and
(q) to execute and deliver all documents or instruments, perform all
duties and powers, and do all things for and on behalf of the Trust in all
matters necessary or incidental to the foregoing.
The Administrative Trustees shall exercise the powers set forth in this
Section 3.6 in a manner that is consistent with the purposes and functions of
the Trust set out in Section 3.3, and the Administrative Trustees shall have no
power to, and shall not, take any action that is inconsistent with the purposes
and functions of the Trust set forth in Section 3.3.
15
Subject to this Section 3.6, the Administrative Trustees shall have
none of the powers or the authority of the Property Trustee set forth in Section
3.8.
Any expenses incurred by the Administrative Trustees pursuant to this
Section 3.6 shall be reimbursed by the Debenture Issuer.
SECTION 3.7. PROHIBITION OF ACTIONS BY THE TRUST AND THE TRUSTEES.
(a) The Trust shall not, and none of the Trustees (including the
Property Trustee) shall cause the Trust to, engage in any activity other than as
required or authorized by this Trust Agreement. In particular, the Trust shall
not and none of the Trustees (including the Property Trustee) shall cause the
Trust to:
(i) invest any proceeds received by the Trust from holding the
Debt Securities, but shall distribute all such proceeds to Holders of
Securities pursuant to the terms of this Trust Agreement and of the
Securities;
(ii) acquire any assets other than as expressly provided
herein;
(iii) possess Trust property for other than a Trust purpose;
(iv) make any loans (other than those represented by the Debt
Securities) or incur any indebtedness;
(v) possess any power or otherwise act in such a way as to
vary the Trust assets;
(vi) possess any power or otherwise act in such a way as to
vary the terms of the Securities in any way whatsoever (except to the
extent expressly authorized in this Trust Agreement or by the terms of
the Securities);
(vii) issue any securities or other evidences of beneficial
ownership of, or beneficial interest in, the Trust other than the
Securities;
(viii) other than as provided in this Trust Agreement or by
the terms of the Securities, (A) direct the time, method and place of
exercising any trust or power conferred upon the Debenture Trustee with
respect to the Debt Securities, (B) waive any past default that is
waivable under the Indenture, (C) exercise any right to rescind or
annul any declaration that the principal of all the Debt Securities
shall be due and payable, or (D) consent to any amendment, modification
or termination of the Indenture or the Debt Securities where such
consent shall be required unless the Trust shall have received an
opinion of counsel to the effect that such modification will not cause
more than an insubstantial risk that the Trust will be deemed an
Investment Company required to be registered under the Investment
Company Act, or the Trust will be classified as other than a grantor
trust for United States federal income tax purposes;
16
(ix) take any action inconsistent with the status of the Trust
as a grantor trust for United States federal income tax purposes; or
(x) revoke any action previously authorized or approved by
vote of the Holders of the Capital Securities.
SECTION 3.8. POWERS AND DUTIES OF THE PROPERTY TRUSTEE.
(a) The legal title to the Debt Securities shall be owned by and held
of record in the name of the Property Trustee for the benefit of the Trust and
the Holders of the Securities. The right, title and interest of the Property
Trustee to the Debt Securities shall vest automatically in each Person who may
hereafter be appointed as Property Trustee in accordance with Section 6.6. Such
vesting and cessation of title shall be effective whether or not conveyancing
documents with regard to the Debt Securities have been executed and delivered.
(b) The Property Trustee shall not transfer its right, title and
interest in the Debt Securities to the Administrative Trustees or to the
Delaware Trustee (if the Property Trustee does not also act as Delaware
Trustee).
(c) The Property Trustee shall:
(i) establish and maintain a segregated non-interest bearing
trust account (the "Property Account") in the name of and under the
exclusive control of the Property Trustee on behalf of the Holders of
the Securities and, upon the receipt of payments of funds made in
respect of the Debt Securities held by the Property Trustee, deposit
such funds into the Property Account and make payments to the Holders
of the Capital Securities and Holders of the Common Securities from the
Property Account in accordance with Section 7.2. Funds in the Property
Account shall be held uninvested until disbursed in accordance with
this Trust Agreement. The Property Account shall be an account that is
maintained with a banking institution the rating on whose long-term
unsecured indebtedness is at least equal to the rating assigned to the
Capital Securities by a "nationally recognized statistical rating
organization", within the meaning of Rule 436(g)(2) under the
Securities Act;
(ii) engage in such ministerial activities as shall be
necessary or appropriate to effect the redemption of the Capital
Securities and the Common Securities to the extent the Debt Securities
are redeemed or mature; and
(iii) upon written notice of distribution issued by the
Administrative Trustees in accordance with the terms of the Securities,
engage in such ministerial activities as so directed and as shall be
necessary or appropriate to effect the distribution of the Debt
Securities to Holders of Securities upon the occurrence of a Special
Event.
(d) The Property Trustee shall take all actions and perform such duties
as may be specifically required of the Property Trustee pursuant to the terms of
this Trust Agreement and the Securities.
17
(e) The Property Trustee shall take any Legal Action which arises out
of or in connection with a Trust Enforcement Event of which a Responsible
Officer of the Property Trustee has actual knowledge or the Property Trustee's
duties and obligations under this Trust Agreement or the Trust Indenture Act;
provided, however, that if a Trust Enforcement Event has occurred and is
continuing and such event is attributable to the failure of the Debenture Issuer
to pay interest, principal or other required payments on the Debt Securities on
the date such interest, principal or other required payments are otherwise
payable (or in the case of redemption, on the redemption date), then a Holder of
Capital Securities may directly institute a proceeding against the Debenture
Issuer for enforcement of payment to such Holder of the principal of or interest
on Debt Securities having a principal amount equal to the aggregate liquidation
amount of the Capital Securities of such Holder (a "Direct Action") on or after
the respective due date specified in the Debt Securities. Notwithstanding
anything to the contrary in this Trust Agreement or the Indenture, the Debenture
Issuer shall have the right to set-off any payment it is otherwise required to
make under the Indenture in respect of any Capital Security to the extent the
Debenture Issuer has heretofore made, or is currently on the date of such
payment making, a payment under the Guarantee relating to such Capital Security
or under Section 5.8 of the Indenture.
(f) The Property Trustee shall continue to serve as a Trustee until
either:
(i) the Trust has been completely liquidated and the proceeds
of the liquidation distributed to the Holders of Securities pursuant to
the terms of the Securities; or
(ii) a Successor Property Trustee has been appointed and has
accepted that appointment in accordance with Section 6.6.
(g) The Property Trustee shall have the legal power to exercise all of
the rights, powers and privileges of a holder of Debt Securities under the
Indenture and, if a Trust Enforcement Event actually known to a Responsible
Officer of the Property Trustee occurs and is continuing, the Property Trustee
shall, for the benefit of Holders of the Securities, enforce its rights as
holder of the Debt Securities subject to the rights of the Holders pursuant to
the terms of such Securities.
(h) The Property Trustee may authorize one or more Persons (each, a
"Paying Agent") to pay Distributions, redemption payments or liquidation
payments on behalf of the Trust with respect to all Securities and any such
Paying Agent shall comply with Section 317(b) of the Trust Indenture Act. Any
Paying Agent may be removed by the Property Trustee at any time and a successor
Paying Agent or additional Paying Agents may be appointed at any time by the
Property Trustee.
(i) Subject to this Section 3.8, the Property Trustee shall have none
of the duties, liabilities, powers or the authority of the Administrative
Trustees set forth in Section 3.6.
18
The Property Trustee shall exercise the powers set forth in this
Section 3.8 in a manner that is consistent with the purposes and functions of
the Trust set out in Section 3.3, and the Property Trustee shall have no power
to, and shall not, take any action that is inconsistent with the purposes and
functions of the Trust set out in Section 3.3.
SECTION 3.9. CERTAIN DUTIES AND RESPONSIBILITIES OF THE PROPERTY TRUSTEE.
(a) The Property Trustee, before the occurrence of any Trust
Enforcement Event and after the curing of all Trust Enforcement Events that may
have occurred, shall undertake to perform only such duties as are specifically
set forth in this Trust Agreement and no implied covenants shall be read into
this Trust Agreement against the Property Trustee. In case a Trust Enforcement
Event has occurred (that has not been cured or waived pursuant to Section 2.6)
of which a Responsible Officer of the Property Trustee has actual knowledge, the
Property Trustee shall exercise such of the rights and powers vested in it by
this Trust Agreement, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the circumstances in
the conduct of his or her own affairs.
(b) No provision of this Trust Agreement shall be construed to relieve
the Property Trustee from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct, except that:
(i) prior to the occurrence of a Trust Enforcement Event and
after the curing or waiving of all such Trust Enforcement Events that
may have occurred:
a. the duties and obligations of the Property
Trustee shall be determined solely by the express provisions
of this Trust Agreement and the Property Trustee shall not be
liable except for the performance of such duties and
obligations as are specifically set forth in this Trust
Agreement, and no implied covenants or obligations shall be
read into this Trust Agreement against the Property Trustee;
and
b. in the absence of bad faith on the part of the
Property Trustee, the Property Trustee may conclusively rely,
as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions
furnished to the Property Trustee and conforming to the
requirements of this Trust Agreement; but in the case of any
such certificates or opinions that by any provision hereof are
specifically required to be furnished to the Property Trustee,
the Property Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirements
of this Trust Agreement;
(ii) the Property Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Property
Trustee, unless it shall be proved that the Property Trustee was
negligent in ascertaining the pertinent facts;
(iii) the Property Trustee shall not be liable with respect to
any action taken or omitted to be taken by it without negligence, in
good faith in accordance with the
19
direction of the Holders of not less than a Majority in Liquidation
Amount of the Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the Property
Trustee, or exercising any trust or power conferred upon the Property
Trustee under this Trust Agreement;
(iv) no provision of this Trust Agreement shall require the
Property Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or
in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this Trust
Agreement or indemnity reasonably satisfactory to the Property Trustee
against such risk or liability is not reasonably assured to it;
(v) the Property Trustee's sole duty with respect to the
custody, safe-keeping and physical preservation of the Debt Securities
and the Property Account shall be to deal with such property in a
similar manner as the Property Trustee deals with similar property for
its own account, subject to the protections and limitations on
liability afforded to the Property Trustee under this Trust Agreement
and the Trust Indenture Act;
(vi) the Property Trustee shall have no duty or liability for
or with respect to the value, genuineness, existence or sufficiency of
the Debt Securities or the payment of any taxes or assessments levied
thereon or in connection therewith;
(vii) the Property Trustee shall not be liable for any
interest on any money received by it except as it may otherwise agree
with the Sponsor. Money held by the Property Trustee need not be
segregated from other funds held by it except in relation to the
Property Account maintained by the Property Trustee pursuant to Section
3.8(c)(i) and except to the extent otherwise required by law; and
(viii) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrative Trustees or the Sponsor
with their respective duties under this Trust Agreement, nor shall the
Property Trustee be liable for any default or misconduct of the
Administrative Trustees or the Sponsor.
SECTION 3.10. CERTAIN RIGHTS OF PROPERTY TRUSTEE.
(a) Subject to the provisions of Section 3.9:
(i) the Property Trustee may conclusively rely and shall be
fully protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document believed by
it to be genuine and to have been signed, sent or presented by the
proper party or parties;
20
(ii) any direction or act of the Sponsor or the Administrative
Trustees contemplated by this Trust Agreement shall be sufficiently
evidenced by an Officers' Certificate;
(iii) whenever in the administration of this Trust Agreement,
the Property Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting any action hereunder,
the Property Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part, request and
conclusively rely upon an Officers' Certificate which, upon receipt of
such request, shall be promptly delivered by the Sponsor or the
Administrative Trustees;
(iv) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any
financing or continuation statement or any filing under tax or
securities laws) or any rerecording, refiling or registration thereof;
(v) the Property Trustee may consult with counsel of its
choice or other experts and the advice or opinion of such counsel and
experts with respect to legal matters or advice within the scope of
such experts' area of expertise shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in accordance with such
advice or opinion, such counsel may be counsel to the Sponsor or any of
its Affiliates, and may include any of its employees. The Property
Trustee shall have the right at any time to seek instructions
concerning the administration of this Trust Agreement from any court of
competent jurisdiction;
(vi) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Trust
Agreement at the request or direction of any Holder, unless such Holder
shall have provided to the Property Trustee security and indemnity,
reasonably satisfactory to the Property Trustee, against the costs,
expenses (including reasonable attorneys' fees and expenses and the
expenses of the Property Trustee's agents, nominees or custodians) and
liabilities that might be incurred by it in complying with such request
or direction, including such reasonable advances as may be requested by
the Property Trustee; provided that, nothing contained in this Section
3.10(a) shall be taken to relieve the Property Trustee, upon the
occurrence of a Trust Enforcement Event, of its obligation to exercise
the rights and powers vested in it by this Trust Agreement;
(vii) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Property Trustee, in
its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit;
(viii) the Property Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through agents, custodians, nominees or attorneys and the Property
Trustee shall not be responsible for any
21
misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder, provided that such agent, custodian,
nominee or attorney is a United States Person as defined in Section
7701(a)(30) of the Code;
(ix) any authorized or required action taken by the Property
Trustee or its agents hereunder shall bind the Trust and the Holders of
the Securities, and the signature of the Property Trustee or its agents
alone shall be sufficient and effective to perform any such action and
no third party shall be required to inquire as to the authority of the
Property Trustee to so act or as to its compliance with any of the
terms and provisions of this Trust Agreement, both of which shall be
conclusively evidenced by the Property Trustee's or its agent's taking
such action;
(x) whenever in the administration of this Trust Agreement the
Property Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder, the Property Trustee (i) may request instructions from the
Holders of the Securities which instructions may only be given by the
Holders of the same proportion in liquidation amount of the Securities
as would be entitled to direct the Property Trustee under the terms of
the Securities in respect of such remedy, right or action, (ii) may
refrain from enforcing such remedy or right or taking such other action
until such instructions are received, and (iii) shall be protected in
conclusively relying on or acting in or accordance with such
instructions;
(xi) except as otherwise expressly provided by this Trust
Agreement, the Property Trustee shall not be under any obligation to
take any action that is discretionary under the provisions of this
Trust Agreement;
(xii) the Property Trustee shall not be liable for any action
taken, suffered or omitted to be taken by it without negligence or
willful misconduct, in good faith and reasonably believed by it to be
authorized or within the discretion, rights or powers conferred upon it
by this Trust Agreement;
(xiii) without prejudice to any other rights available to the
Property Trustee under applicable law, when the Property Trustee incurs
expenses or renders services in connection with a bankruptcy, such
expenses (including the fees and expenses of its counsel) and the
compensation for such services are intended to constitute expenses of
administration under any bankruptcy law or law relating to creditors
rights generally; and
(xiv) the Property Trustee shall not be charged with knowledge
of a Trust Enforcement Event unless a Responsible Officer of the
Property Trustee obtains actual knowledge of such event or the Property
Trustee receives written notice of such event from Holders holding more
than a Majority in Liquidation Amount of the Capital Securities;
(b) No provision of this Trust Agreement shall be deemed to impose any
duty or obligation on the Property Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in
22
which the Property Trustee shall be unqualified or incompetent in accordance
with applicable law, to perform any such act or acts, or to exercise any such
right, power, duty or obligation. No permissive power or authority available to
the Property Trustee shall be construed to be a duty.
SECTION 3.11. DELAWARE TRUSTEE.
Notwithstanding any other provision of this Trust Agreement, the
Delaware Trustee shall not be entitled to exercise any powers, nor shall the
Delaware Trustee have any of the duties and liabilities of the Administrative
Trustees or the Property Trustee described in this Trust Agreement. Except as
set forth in Section 6.2, the Delaware Trustee shall be a Trustee for the sole
and limited purpose of fulfilling the requirements of Section 3807(a) of the
Business Trust Act. The Delaware Trustee shall have the power and authority to
execute and deliver any certificates required to be filed under the Business
Trust Act in order to maintain the existence of the Trust and shall accept
service of legal process upon the Trust in the State of Delaware. The Delaware
Trustee shall provide prompt notice to the Administrative Trustee of its
performance of any such acts. In the event the Delaware Trustee shall at any
time be required to take any action or perform any duty hereunder with respect
to the Trust, the Delaware Trustee shall be entitled to all of the same rights
as the Property Trustee listed in Section 3.9(b) and Section 3.10.
SECTION 3.12. EXECUTION OF DOCUMENTS.
Except as otherwise required by the Business Trust Act or applicable
law, any Administrative Trustee is authorized to execute on behalf of the Trust
any documents that the Administrative Trustees have the power and authority to
execute pursuant to Section 3.6.
SECTION 3.13. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained in this Trust Agreement and the Securities shall
be taken as the statements of the Sponsor, and the Trustees do not assume any
responsibility for their correctness. The Trustees make no representations as to
the value or condition of the property of the Trust or any part thereof. The
Trustees make no representations as to the validity or sufficiency of this Trust
Agreement, the Securities, the Debt Securities or the Indenture.
SECTION 3.14. DURATION OF TRUST.
The Trust shall exist until dissolved and terminated pursuant to the
provisions of Article 8 hereof.
SECTION 3.15. MERGERS.
(a) The Trust may not consolidate, amalgamate, merge with or into, or
be replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, except as described in Section
3.15(b) and (c) or Section 8.2.
(b) The Trust may, at the request of the Sponsor and with the consent
of the Administrative Trustees or, if there are more than two, a majority of the
Administrative Trustees and without the consent of the Holders of the
Securities, the Delaware Trustee or the Property Trustee, consolidate,
amalgamate, merge with or into, or be replaced by or convey, transfer or
23
lease its properties substantially as an entirety to a trust organized as such
under the laws of any State; provided, that:
(i) if the Trust is not the successor, such successor entity
(the "Successor Entity") either:
a. expressly assumes all of the obligations of the
Trust with respect to the Securities; or
b. substitutes for the Capital Securities other
securities having substantially the same terms as the Capital
Securities (the "Successor Securities") so long as the
Successor Securities rank the same as the Capital Securities
rank in priority with respect to Distributions and payments
upon liquidation, redemption and otherwise;
(ii) the Debenture Issuer expressly appoints a trustee of such
Successor Entity that possesses the same powers and duties as the
Property Trustee as the holder of the Debt Securities;
(iii) the Capital Securities or any Successor Securities are
listed, or any Successor Securities will be listed upon notification of
issuance, on any national securities exchange or with any other or
organization on which the Capital Securities are then listed or quoted;
(iv) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not cause the Capital Securities
(including any Successor Securities) to be downgraded by any nationally
recognized statistical rating organization;
(v) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights,
preferences and privileges of the Holders of the Capital Securities
(including any Successor Securities) in any material respect;
(vi) such Successor Entity has a purpose substantially
identical to that of the Trust;
(vii) prior to such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease the Sponsor has received an
opinion of independent counsel to the Trust experienced in such matters
to the effect that:
a. such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not adversely
affect the rights, preferences and privileges of the Holders
of the Capital Securities (including any Successor Securities)
in any material respect;
24
b. following such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease
neither the Trust nor the Successor Entity will be required to
register as an Investment Company; and
c. following such merger, consolidation, amalgamation
or replacement, the Trust (or the Successor Entity) will
continue to be classified as a grantor trust for United States
federal income tax purposes;
(viii) the Sponsor or any permitted successor or assignee owns
all of the common securities and guarantees the obligations of such
Successor Entity under the Successor Securities at least to the extent
provided by the Securities Guarantee and such Successor Entity
expressly assumes all of the obligations of the Trust with respect to
the Trustees.
(c) Notwithstanding Section 3.15(b), the Trust shall not, except with
the consent of Holders of 100% in aggregate liquidation amount of the
Securities, consolidate, amalgamate, merge with or into, or be replaced by or
convey, transfer or lease its properties and assets substantially as an entirety
to, any other entity or permit any other entity to consolidate, amalgamate,
merge with or into, or replace it, if such consolidation, amalgamation, merger,
replacement, conveyance, transfer or lease would cause the Trust or Successor
Entity to be classified as other than a grantor trust for United States federal
income tax purposes and each Holder of the Securities not to be treated as
owning an undivided interest in the Debt Securities.
SECTION 3.16. PROPERTY TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
similar judicial proceeding relative to the Trust or any other obligor upon the
Securities or the property of the Trust or of such other obligor or their
creditors, the Property Trustee (irrespective of whether any Distributions on
the Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Property Trustee shall
have made any demand on the Trust for the payment of any past due Distributions)
shall be entitled and empowered, to the fullest extent permitted by law, by
intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of any Distributions
owing and unpaid in respect of the Securities (or, if the Securities are
original issue discount Securities, such portion of the liquidation amount as
may be specified in the terms of such Securities) and to file such other papers
or documents as may be necessary or advisable in order to have the claims of the
Property Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Property Trustee, its and counsel) and of the
Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
25
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
Securities or the rights of any Holder thereof or to authorize the Property
Trustee to vote in respect of the claim of any Holder in any such proceeding.
ARTICLE 4 - SPONSOR
SECTION 4.1. RESPONSIBILITIES OF THE SPONSOR.
In connection with the issue of the Capital Securities, the Sponsor
shall have the exclusive right and responsibility to engage in the following
activities:
(a) to prepare for filing by the Trust with the Commission under the
Securities Act or the Exchange Act, and execute on behalf of the Trust, one or
more registration statements on the applicable forms, including any amendments
thereto, pertaining to the Capital Securities, the Guarantee and the Debt
Securities;
(b) to determine the States in which to take appropriate action to
qualify or register for sale all or part of the Capital Securities and to do any
and all such acts, other than actions which must be taken by the Trust, and
advise the Trust of actions it must take, and prepare for execution and filing
any documents to be executed and filed by the Trust, as the Sponsor deems
necessary or advisable in order to comply with the applicable laws of any such
States; and
(c) to negotiate the terms of, and execute, an underwriting agreement
and other related agreements providing for the sale of the Capital Securities.
SECTION 4.2. INDEMNIFICATION AND FEES AND EXPENSES OF THE TRUSTEES.
The Sponsor, in its capacity as Debenture Issuer, agrees to indemnify
the Property Trustee and the Delaware Trustee (which shall include in each case,
their directors, offices, employees and agents) for, and to hold each of them
harmless against, any loss, liability or expense incurred without negligence or
bad faith on the part of the Property Trustee or the Delaware Trustee, as the
case may be, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses of defending either of them against any claim or liability in
connection with the exercise or performance of any of their respective powers or
duties hereunder; the provisions of this Section 4.2 shall survive the
resignation or removal of the Delaware Trustee or the Property Trustee or the
termination of this Trust Agreement.
26
SECTION 4.3. COMPENSATION OF THE TRUSTEES.
The Sponsor agrees to pay the Property Trustee and the Delaware Trustee
from time to time such compensation for all services rendered by the Property
Trustee and the Delaware Trustee hereunder as may be mutually agreed upon in
writing by the Sponsor and the Property Trustee or the Delaware Trustee, as the
case may be, and, except as otherwise expressly provided herein, to reimburse
the Property Trustee and the Delaware Trustee upon its or their request for all
reasonable expenses, disbursements and advances incurred or made by the Property
Trustee or the Delaware Trustee, as the case may be, in accordance with the
provisions of this Trust Agreement, except any such expense, disbursement or
advance as may be attributable to its or their negligence or bad faith.
ARTICLE 5 - TRUST COMMON SECURITIES HOLDER
SECTION 5.1. DEBENTURE ISSUER'S RECEIPT OF COMMON SECURITIES.
On the Closing Date, the Debenture Issuer will receive all of the
Common Securities and all of the Capital Securities issued by the Trust on the
same date in exchange for Debt Securities issued to the Trust by the Debenture
Issuer. The Common Securities will be issued in an amount equal to at least 3%
of the capital of the Trust.
The aggregate stated liquidation amount of Common Securities
outstanding at any time shall not be less than 3% of the capital of the Trust.
SECTION 5.2. COVENANTS OF THE COMMON SECURITIES HOLDER.
For so long as the Capital Securities remain outstanding, the Common
Securities Holder will covenant (i) to maintain directly 100% ownership of the
Common Securities, (ii) to cause the Trust to remain a statutory business trust
and not to voluntarily dissolve, wind up, liquidate or be terminated, except as
permitted by this Trust Agreement, (iii) to use its commercially reasonable
efforts to ensure that the Trust will not be an investment company for purposes
of the Investment Company Act, and (iv) to take no action which would be
reasonably likely to cause the Trust to be classified as other than a grantor
trust for United States federal income tax purposes.
ARTICLE 6 - TRUSTEES
SECTION 6.1. NUMBER OF TRUSTEES.
The number of Trustees initially shall be five, and:
(a) at any time before the issuance of any Securities, the Sponsor may,
by written instrument, increase or decrease the number of Trustees;
(b) after the issuance of any Securities, the number of Trustees may be
increased or decreased by vote of the Holders of a Majority in Liquidation
Amount of the Common Securities
27
voting as a class at a meeting of the Holders of the Common Securities or by
written consent in lieu of such meeting; provided that the number of Trustees
shall be at least three; and provided further that (1) the Delaware Trustee, in
the case of a natural person, shall be a person who is a resident of the State
of Delaware or that, if not a natural person, is an entity which has its
principal place of business in the State of Delaware and otherwise meets the
requirements of applicable law; (2) at least one Administrative Trustee is an
employee or officer of, or is affiliated with, the Sponsor; and (3) one Trustee
shall be the Property Trustee for so long as this Trust Agreement is required to
qualify as an indenture under the Trust Indenture Act, and such Trustee may also
serve as Delaware Trustee if it meets the applicable requirements;
(c) at all times, the Property Trustee must be (i) a bank as defined in
Section 581 of the Code or (ii) a United States government-owned agency or
United States government sponsored enterprise; and
(d) at all times, each Trustee must be a United States Person as
defined in Section 7701(a)(30) of the Code.
SECTION 6.2. DELAWARE TRUSTEE; ELIGIBILITY.
If required by the Business Trust Act, one Trustee (which may be the
Property Trustee) (the "Delaware Trustee") shall be:
(a) a natural person who is a resident of the State of Delaware; or
(b) if not a natural person, an entity which has its principal place of
business in the State of Delaware, and otherwise meets the requirements of
applicable law,
provided that, if the Property Trustee has its principal place of business in
the State of Delaware and otherwise meets the requirements of applicable law,
then the Property Trustee shall also be the Delaware Trustee and Section 3.11
shall have no application.
SECTION 6.3. PROPERTY TRUSTEE; ELIGIBILITY.
(a) There shall at all times be one Trustee (which may be the Delaware
Trustee) which shall act as Property Trustee which shall:
(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation organized and doing business under the
laws of the United States of America or any State or Territory thereof
or of the District of Columbia, or a corporation or other Person
permitted by the Commission to act as an institutional trustee under
the Trust Indenture Act, authorized under such laws to exercise
corporate trust owners, having a combined capital and surplus of at
least $50,000,000, and subject to supervision or examination by
federal, State, Territorial or District of Columbia authority. If such
corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the supervising or examining authority
referred to above,
28
then for the purposes of this Section 6.3(a)(ii), the combined capital
and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition
so published.
(b) If at any time the Property Trustee shall cease to be eligible to
so act under Section 6.3(a), the Property Trustee shall immediately resign in
the manner and with the effect set forth in Section 6.6(c).
(c) If the Property Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Property Trustee and the Holder of the Common Securities (as if it were the
obligor referred to in Section 310(b) of the Trust Indenture Act) shall in all
respects comply with the provisions of Section 310(b) of the Trust Indenture
Act.
(d) The Guarantee shall be deemed to be specifically described in this
Trust Agreement for purposes of clause (i) of the first proviso contained in
Section 310(b) of the Trust Indenture Act.
SECTION 6.4. QUALIFICATIONS OF ADMINISTRATIVE TRUSTEES AND DELAWARE TRUSTEE
GENERALLY.
Each Administrative Trustee and the Delaware Trustee (unless the
Property Trustee also acts as Delaware Trustee) shall be either a natural person
who is at least 21 years of age or a legal entity that shall act through one or
more Authorized Officers.
SECTION 6.5. INITIAL ADMINISTRATIVE TRUSTEES.
The initial Administrative Trustees shall be:
[_______________], [_______________] and [_____________], the business
address of all of whom is c/o Compass Bancshares, Inc., 00 Xxxxx 00xx Xxxxxx,
Xxxxxxxxxx, Xxxxxxx 00000.
SECTION 6.6. APPOINTMENT, REMOVAL AND RESIGNATION OF TRUSTEES.
(a) Subject to Section 6.6(b), Trustees may be appointed or removed
without cause at any time:
(i) until the issuance of any Securities, by written
instrument executed by the Sponsor;
(ii) after the issuance of any Securities (but prior to the
occurrence of an Indenture Event of Default), by vote of the Holders of
a Majority in Liquidation Amount of the Common Securities voting as a
class at a meeting of the Holders of the Common Securities; and
(iii) after the issuance of the Capital Securities and the
occurrence of an Indenture Event of Default, and only with respect to
each of the Property Trustee and
29
Delaware Trustee, by vote of the Holders of a Majority in Liquidation
Amount of the Capital Securities.
(b) The Trustee that acts as Property Trustee shall not be removed in
accordance with Section 6.6(a) until a successor Trustee possessing the
qualifications to act as Property Trustee under Section 6.3(a) (a "Successor
Property Trustee") has been appointed and has accepted such appointment by
written instrument executed by such Successor Property Trustee and delivered to
the Administrative Trustees and the Sponsor. The Trustee that acts as Delaware
Trustee shall not be removed in accordance with Section 6.6(a) until a successor
Trustee possessing the qualifications to act as Delaware Trustee under Sections
6.2 and 6.4 (a "Successor Delaware Trustee") has been appointed and has accepted
such appointment by written instrument executed by such Successor Delaware
Trustee and delivered to the Administrative Trustees and the Sponsor.
(c) A Trustee appointed to office shall hold office until his or its
successor shall have been appointed, until his death or its dissolution or until
his or its removal or resignation. Any Trustee may resign from office (without
need for prior or subsequent accounting) by an instrument in writing signed by
the Trustee and delivered to the Sponsor and the Trust, which resignation shall
take effect upon such delivery or upon such later date as is specified therein;
provided, however, that:
(i) no such resignation of the Trustee that acts as the
Property Trustee shall be effective:
a. until a Successor Property Trustee has been
appointed and has accepted such appointment by instrument
executed by such Successor Property Trustee and delivered to
the Trust, the Sponsor and the resigning Property Trustee; or
b. until the assets of the Trust have been completely
liquidated and the proceeds thereof distributed to the holders
of the Securities; and
(ii) no such resignation of the Trustee that acts as the
Delaware Trustee shall be effective until a Successor Delaware Trustee
has been appointed and has accepted such appointment by instrument
executed by such Successor Delaware Trustee and delivered to the Trust,
the Sponsor and the resigning Delaware Trustee.
(d) The Holders of the Common Securities shall use their best efforts
to promptly appoint a Successor Delaware Trustee or Successor Property Trustee,
as the case may be, if the Property Trustee or the Delaware Trustee delivers an
instrument of resignation in accordance with this Section 6.6.
(e) If no Successor Property Trustee or Successor Delaware Trustee, as
the case may be, shall have been appointed and accepted appointment as provided
in this Section 6.6 within sixty (60) days after delivery to the Sponsor and the
Trust of an instrument of resignation or removal, the resigning or removed
Property Trustee or Delaware Trustee, as applicable, may
30
petition any court of competent jurisdiction in the United States for
appointment of a Successor Property Trustee or Successor Delaware Trustee, as
applicable. Such court may thereupon, after prescribing such notice, if any, as
it may deem proper, appoint a Successor Property Trustee or Successor Delaware
Trustee, as the case may be.
(f) No Property Trustee or Delaware Trustee shall be liable for the
acts or omissions to act of any Successor Property Trustee or Successor Delaware
Trustee, as the case may be.
SECTION 6.7. VACANCIES AMONG TRUSTEES.
If a Trustee ceases to hold office for any reason and the number of
Trustees is not reduced pursuant to Section 6.1, or if the number of Trustees is
increased pursuant to Section 6.1, a vacancy shall occur. A resolution
certifying the existence of such vacancy by the Administrative Trustees or, if
there are more than two, a majority of the Administrative Trustees shall be
conclusive evidence of the existence of such vacancy. The vacancy shall be
filled with a Trustee appointed in accordance with Section 6.6.
SECTION 6.8. EFFECT OF VACANCIES.
The death, resignation, retirement, removal, bankruptcy, dissolution,
liquidation, incompetence or incapacity to perform the duties of a Trustee shall
not operate to annul, dissolve or terminate the Trust. Whenever a vacancy in the
number of Administrative Trustees shall occur, until such vacancy is filled by
the appointment of an Administrative Trustee in accordance with Section 6.6, the
Administrative Trustees in office, regardless of their number, shall have all
the powers granted to the Administrative Trustees and shall discharge all the
duties imposed upon the Administrative Trustees by this Trust Agreement.
SECTION 6.9. MEETINGS.
If there is more than one Administrative Trustee, meetings of the
Administrative Trustees shall be held from time to time upon the call of any
Administrative Trustee. Regular meetings of the Administrative Trustees may be
held at a time and place fixed by resolution of the Administrative Trustees.
Notice of any in-person meetings of the Administrative Trustees shall be hand
delivered or otherwise delivered in writing (including by facsimile, with a hard
copy by overnight courier) not less than 48 hours before such meeting. Notice of
any telephonic meetings of the Administrative Trustees shall be hand delivered
or otherwise delivered in writing (including by facsimile, with a hard copy by
overnight courier) not less than 24 hours before a meeting. Notices shall
contain a brief statement of the time, place and anticipated purposes of the
meeting. The presence (whether in person or by telephone) of an Administrative
Trustee at a meeting shall constitute a waiver of notice of such meeting except
where an Administrative Trustee attends a meeting for the express purpose of
objecting to the transaction of any activity on the ground that the meeting has
not been lawfully called or convened. Unless provided otherwise in this Trust
Agreement, any action of the Administrative Trustees may be taken at a meeting
by vote of a majority of the Administrative Trustees present (whether in person
or by telephone) and eligible to vote with respect to such matter, provided that
a Quorum is present, or without a meeting by the unanimous written consent of
the Administrative Trustees. In the event
31
there is only one Administrative Trustee, any and all action of such
Administrative Trustee shall be evidenced by a written consent of such
Administrative Trustee.
SECTION 6.10. DELEGATION OF POWER.
(a) Any Administrative Trustee may, by power of attorney consistent
with applicable law, delegate to any natural person over the age of 21 his, her
or its power for the purpose of executing any documents contemplated in Section
3.6 or making any governmental filing; provided that such person is a United
States Person as defined in Section 7701(a)(30) of the Code.
(b) The Administrative Trustees shall have power to delegate from time
to time to such of their number or to officers of the Trust the doing of such
things and the execution of such instruments either in the name of the Trust or
the names of the Administrative Trustees or otherwise as the Administrative
Trustees may deem expedient, to the extent such delegation is not prohibited by
applicable law or contrary to the provisions of the Trust, as set forth herein;
provided, that such person is a United States Person as defined in Section
7701(a)(30) of the Code.
SECTION 6.11. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Property Trustee, the Delaware Trustee
or any Administrative Trustee that is not a natural person may be merged or
converted or with such Trustee may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Trustee shall be a
party, or any corporation succeeding to all or substantially all the corporate
trust business of such Trustee shall be the successor of such Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto.
ARTICLE 7 - TERMS OF SECURITIES
SECTION 7.1. GENERAL PROVISIONS REGARDING SECURITIES.
(a) The Administrative Trustees shall on behalf of the Trust issue one
(1) class of capital securities representing undivided beneficial interests in
the assets of the Trust and one class of common securities representing
undivided beneficial interests in the assets of the Trust.
(i) Capital Securities. The Capital Securities of the Trust
have an aggregate liquidation amount with respect to the assets of the
Trust of up to $25 with respect to the closing of the sale of Capital
Securities on one (1) or more occasions. The Capital Securities are
hereby designated for identification purposes only as "[_____]% Capital
Securities" (the "Capital Securities"). The Capital Security
Certificates evidencing the Capital Securities shall be substantially
in the form of EXHIBIT A to this Trust Agreement, with such changes and
additions thereto or deletions therefrom as may be required by
32
ordinary usage, custom or practice or to conform to the rules of any
stock exchange on which the Capital Securities are listed or quoted.
(ii) Common Securities. The Common Securities of the Trust
have an aggregate liquidation amount with respect to the assets of the
Trust of up to $25 with respect to the closing of the sale of Common
Securities on one or more occasions. The Common Securities are hereby
designated for identification purposes only as "[_____]% Common
Securities" (the "Common Securities" and, together with the Capital
Securities, the "Securities"). The Common Security Certificates
evidencing the Common Securities shall be substantially in the form of
EXHIBIT B to this Trust Agreement, with such changes and additions
thereto or deletions therefrom as may be required by ordinary usage,
custom or practice.
(b) Payment of Distributions on, and payment of the Redemption Price
upon a redemption of, the Capital Securities and the Common Securities, as
applicable, shall be made Pro Rata based on the liquidation amount of such
Capital Securities and Common Securities; provided, however, that if on any date
on which amounts payable on distribution or redemption, an Indenture Event of
Default shall have occurred and be continuing, no payment of any Distribution
on, or Redemption Price of, any of the Common Securities, and no other payment
on account of the redemption, liquidation or other acquisition of such Common
Securities, shall be made unless payment in full in cash of all accumulated and
unpaid Distributions on all of the outstanding Capital Securities for all
Distribution periods terminating on or prior thereto, or, in the case of amounts
payable on redemption, the full amount of the Redemption Price for all of the
outstanding Capital Securities then called for redemption, shall have been made
or provided for, and all funds available to the Property Trustee shall first be
applied to the payment in full in cash of all Distributions on, or the
Redemption Price of, the Capital Securities then due and payable. The Trust
shall issue no securities or other interests in the assets of the Trust other
than the Capital Securities and the Common Securities.
(c) The Certificates shall be signed on behalf of the Trust by an
Administrative Trustee. Such signature shall be the manual or facsimile
signature of any present or any future Administrative Trustee. In case an
Administrative Trustee of the Trust who shall have signed any of the
Certificates shall cease to be such Administrative Trustee before the
Certificates so signed shall be delivered by the Trust, such Certificates
nevertheless may be delivered as though the person who signed such Certificates
had not ceased to be such Administrative Trustee; and any Certificate may be
signed on behalf of the Trust by such persons who, at the actual date of
execution of such Certificate, shall be the Administrative Trustees of the
Trust, although at the date of the execution and delivery of the Trust Agreement
any such person was not such an Administrative Trustee. Certificates shall be
printed, lithographed or engraved or may be produced in any other manner as is
reasonably acceptable to the Administrative Trustees, as evidenced by their
execution thereof, and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements as the
Administrative Trustees may deem appropriate, or as may be required to comply
with any law or with any rule or regulation of any stock exchange on which
Securities may be listed, or to conform to usage.
33
A Certificate representing Capital Securities shall not be valid until
authenticated by the manual signature of an authorized officer of the Property
Trustee. Such signature shall be conclusive evidence that such Certificate has
been authenticated under this Trust Agreement.
Upon a written order of the Trust signed by one Administrative Trustee,
the Property Trustee shall authenticate the Certificates representing Capital
Securities for original issue. The aggregate amount of Capital Securities
outstanding at any time shall not exceed the liquidation amount set forth in
Section 7.1(a)(i).
The Property Trustee may appoint an authenticating agent acceptable to
the Trust to authenticate Certificates. An authenticating agent may authenticate
Certificates whenever the Property Trustee may do so. Each reference in this
Trust Agreement to authentication by the Property Trustee includes
authentication by such agent. An authenticating agent has the same rights as the
Property Trustee to deal with the Sponsor or an Affiliate of the Sponsor.
(d) The consideration received by the Trust for the issuance of the
Securities shall constitute a contribution to the capital of the Trust and shall
not constitute a loan to the Trust.
(e) Upon issuance of the Securities as provided in this Trust
Agreement, the Securities so issued shall be deemed to be validly issued, fully
paid and non-assessable undivided beneficial interests in the assets of the
Trust.
(f) Every Person, by virtue of having become a Holder or a Capital
Security Beneficial Owner in accordance with the terms of this Trust Agreement,
shall be deemed to have expressly assented and agreed to the terms of, and shall
be bound by, this Trust Agreement and the terms of the Securities.
(g) The holders of the Securities shall have no preemptive or similar
rights.
SECTION 7.2. DISTRIBUTIONS.
(a) As owners of undivided beneficial ownership interests in the Debt
Securities, holders of Securities shall be entitled to receive cumulative cash
Distributions at the rate per annum of [_____]% of the stated liquidation amount
of $25 per Security. Pursuant to the Indenture, the amount of interest on the
Debt Securities payable for any period shorter than a full quarterly interest
period, and, as a result, Distributions on the Securities payable for any period
shorter than a full quarterly distribution period shall be computed on the basis
of a 30-day month and for periods of less than a month, the actual number of
days elapsed per 30-day month. Subject to Section 7.1(b), Distributions shall be
made on the Capital Securities and the Common Securities on a Pro Rata basis.
Pursuant to the Indenture, interest on the Debt Securities shall, from the date
of original issue, accrue and be cumulative, and, as a result Distributions on
the Securities shall, from the date of original issue, accumulate and be
cumulative. Distributions shall be payable quarterly in arrears on each
[_______], [_______], [_________] and [__________] of each year, commencing
[ ], 2002, when, as and if available for payment, by the Property Trustee,
except as otherwise described below. Distributions are payable only to the
extent that payments are made in respect of the Debt Securities held by the
34
Property Trustee and to the extent that the Trust has funds available for the
payment of such Distributions in the Property Account.
(b) Pursuant to the Indenture, interest not paid on the scheduled
payment date will accrue and compound quarterly at the rate of [_____]% per
annum, and, as a result, interests on the Debt Securities not paid on the
scheduled payment date will accrue and compound quarterly at the rate of
[_____]% per annum (and, as a result) the Distributions on the Securities will
accumulate and compound at the rate of [_____]% per annum ("Compounded
Distributions"). "Distributions" shall mean ordinary cumulative distributions
together with any Compounded Distributions.
(c) If and to the extent that the Debenture Issuer makes a payment of
interest, premium and/or principal on the Debt Securities held by the Property
Trustee (the amount of any such payment being a "Payment Amount"), the Property
Trustee shall and is directed, to the extent funds are available for that
purpose, make a Pro Rata distribution of the Payment Amount to Holders, subject
to Section 7.1(b).
(d) Distributions on the Securities shall be payable to the Holders
thereof as they appear on the register of the Trust as of the close of business
on the relevant record dates. While the Capital Securities are represented by
one or more Global Securities, the relevant record dates shall be the close of
business the Business Day preceding such Distribution payment date; otherwise
the relevant record date shall be the fifteenth day (whether or not a Business
Day) preceding such Distribution payment date. At all times, the Distribution
payment dates shall correspond to the interest payment dates on the Debt
Securities. Distributions payable on any Securities that are not punctually paid
on any Distribution payment date, as a result of the Debenture Issuer having
failed to make a payment under the Debt Securities, shall cease to be payable to
the Person in whose name such Securities are registered on the relevant record
date, and such defaulted Distribution will instead be payable to the Person in
whose name such Securities are registered on the special record date or other
specified date determined in accordance with this Trust Agreement. If any date
on which Distributions are payable on the Securities is not a Business Day, then
payment of the Distribution payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest or other payment
in respect of any such delay), with the same force and effect as if made on such
payment date.
(e) In the event that there is any money or other property held by or
for the Trust that is not accounted for hereunder, such property shall be
distributed Pro Rata among the Holders of the Securities except as provided in
Section 7.1(b).
SECTION 7.3. REDEMPTION OF SECURITIES.
(a) Upon the repayment or redemption, in whole or in part, of the Debt
Securities held by the Trust, whether at the stated maturity of the Debt
Securities or upon earlier redemption as provided in the Indenture, the proceeds
from such repayment or redemption shall be simultaneously applied Pro Rata
(subject to Section 7.1(b)) to redeem Securities having an aggregate liquidation
amount equal to the aggregate principal amount of the Debt Securities so
35
repaid or redeemed at the Redemption Price. Holders shall be given not less than
thirty (30) nor more than sixty (60) days notice of such redemption in
accordance with Section 7.4.
(b) On the date fixed for any distribution of Debt Securities, upon
dissolution of the Trust, (i) the Securities will no longer be deemed to be
outstanding and (ii) certificates representing Securities will be deemed to
represent the Debt Securities having an aggregate principal amount equal to the
stated liquidation amount of, and bearing accrued and unpaid interest equal to
accumulated and unpaid distributions on, such Securities until such certificates
are presented to the Sponsor or its agent for transfer or reissuance.
SECTION 7.4. REDEMPTION PROCEDURES.
(a) Notice of any redemption of, or notice of distribution of Debt
Securities in exchange for, the Securities (a "Redemption/Distribution Notice"),
which notice shall be irrevocable, will be given by the Trust by mail to each
Holder of Securities to be redeemed or exchanged not fewer than thirty (30) nor
more than sixty (60) days before the date fixed for redemption or exchange
thereof which, in the case of a redemption, will be the date fixed for
redemption of the Debt Securities. For purposes of the calculation of the date
of redemption or exchange and the dates on which notices are given pursuant to
this Section 7.4(a), a Redemption/Distribution Notice shall be deemed to be
given on the day such notice is first mailed by first-class mail, postage
prepaid, to Holders of Securities. Each Redemption/Distribution Notice shall be
addressed to the Holders of Securities at the address of each such Holder
appearing in the register of the Trust. No defect in the Redemption/Distribution
Notice or in the mailing of either thereof with respect to any Holder shall
affect the validity of the redemption or exchange proceedings with respect to
any other Holder.
(b) If fewer than all the outstanding Securities are to be so redeemed,
the Common Securities and the Capital Securities will be redeemed Pro Rata
(subject to Section 7.1(b)) and the Capital Securities to be redeemed will be
redeemed as described in Section 7.4(c) below. The particular Capital Securities
to be redeemed will be selected on a Pro Rata basis by the Property Trustee from
the outstanding Capital Securities not previously called for redemption, by such
method (including, without limitation, by lot) as the Property Trustee shall
deem fair and appropriate. The Trust may not redeem the Securities in part
unless all accumulated and unpaid Distributions to the date of redemption have
been paid in full on all Securities then outstanding. For all purposes of this
Trust Agreement, unless the context otherwise requires, all provisions relating
to the redemption of Capital Securities shall relate, in the case of any Capital
Security redeemed or to be redeemed only in part, to the portion of the
aggregate liquidation amount of Capital Securities which has been or is to be
redeemed.
(c) Subject to the Trust's fulfillment of the notice requirements set
forth in Section 7.4(a) above, if Securities are to be redeemed, then (i) with
respect to Capital Securities represented by one or more Global Securities, by
12:00 noon, New York City time, on the redemption date, provided that the
Debenture Issuer has paid the Property Trustee a sufficient amount of cash in
connection with the related redemption or maturity of the Debt Securities, the
Property Trustee will deposit irrevocably with the Depositary or its nominee (or
successor Clearing Agency or its nominee) funds sufficient to pay the applicable
Redemption Price with
36
respect to the Capital Securities and will give the Depositary irrevocable
instructions and authority to pay the Redemption Price to the Holders of the
Capital Securities and (ii) with respect to Securities not represented by one or
more Global Securities, provided that the Debenture Issuer has paid the Property
Trustee a sufficient amount of cash in connection with the related redemption or
maturity of the Debt Securities, the Property Trustee will give the Paying Agent
irrevocable instructions and authority to pay the relevant Redemption Price to
the Holders of such Securities upon surrender of their certificates evidencing
the Capital Securities. Payment of the Redemption Price on the Capital
Securities will be made to the recordholders thereof as they appear on the
register of the Trust on the relevant record date, which shall be one Business
Day prior to the relevant redemption date; provided, however, that with respect
to the Capital Securities not represented by one or more Global Securities, the
relevant record date shall be the date fifteen days prior to the relevant
redemption date. If any date fixed for redemption of Securities is not a
Business Day, then payment of the Redemption Price payable on such date will be
made on the next succeeding day that is a Business Day (and without any interest
or other payment in respect of any such delay) with the same force and effect as
if made on such date fixed for redemption. If, however, the Business Day falls
in the next calendar year, then payment of the Redemption Price will be made on
the immediately preceding Business Day with the same force and effect as if made
on such date fixed for redemption. If payment of the Redemption Price in respect
of any Securities is not paid because the payment of the Redemption Price on the
Debt Securities is not made, interest will continue to accrue on the Debt
Securities, and, as a result, Distributions on such Securities will continue to
accumulate at the then applicable rate from the original redemption date to the
actual date of payment, in which case the actual payment date will be considered
the date fixed for redemption for purposes of calculating the Redemption Price.
For these purposes, the applicable Redemption Price shall not include
Distributions which are being paid to Holders who were Holders on a relevant
record date. If a Redemption/Distribution Notice shall have been given and funds
deposited or paid as required, then immediately prior to the close of business
on the date of such deposit or payment, Distributions will cease to accumulate
on the Securities called for redemption and all rights of Holders of such
Securities so called for redemption will cease, except the right of the Holders
to receive the Redemption Price, but without interest on such Redemption Price,
and from and after the date fixed for redemption, such Securities will cease to
be outstanding.
Neither the Administrative Trustees nor the Trust shall be required to
register or cause to be registered the transfer of any Securities that have been
called for redemption, except in the case of any Securities being redeemed in
part, any portion thereof not to be redeemed.
(d) Subject to the foregoing and applicable law (including, without
limitation, United States federal securities laws), the Debenture Issuer or its
subsidiaries may at any time and from time to time purchase outstanding Capital
Securities by tender, in the open market or by private agreement.
SECTION 7.5. VOTING RIGHTS OF CAPITAL SECURITIES.
(a) Except as provided under Section 6.6, Section 11.1 and this Article
7 and as otherwise required by the Business Trust Act, the Trust Indenture Act
and other applicable law, the Holders of the Capital Securities shall have no
voting rights.
37
(b) Subject to the requirement of the Property Trustee obtaining a tax
opinion in certain circumstances set forth in Section 7.5(d) below, the Holders
of a Majority in Liquidation Amount of the Capital Securities voting separately
as a class have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Property Trustee, or to direct the
exercise of any trust or power conferred upon the Property Trustee under the
Trust Agreement, including the right to direct the Property Trustee, as Holder
of the Debt Securities, to (i) exercise the remedies available to it under the
Indenture as a Holder of the Debt Securities; (ii) consent to any amendment or
modification of the Indenture or the Debt Securities where such consent shall be
required or (iii) waive any past default and its consequences that is waivable
under Section 5.13 of the Indenture; provided, however, that if an Indenture
Event of Default has occurred and is continuing, then the Holders of 25% of the
aggregate liquidation amount of the Capital Securities may direct the Property
Trustee to declare the principal of and interest on the Debt Securities due and
payable; provided, further, that where a consent or action under the Indenture
would require the consent or act of the Holders of more than a majority of the
aggregate principal amount of Debt Securities affected thereby, only the Holders
of the percentage of the aggregate stated liquidation amount of the Capital
Securities which is at least equal to the percentage required under the
Indenture may direct the Property Trustee to give such consent to take such
action.
(c) If the Property Trustee fails to enforce its rights under the Debt
Securities after a Holder of Capital Securities has made a written request, such
Holder of Capital Securities may, to the extent permitted by applicable law,
institute a legal proceeding directly against the Debenture Issuer to enforce
the Property Trustee's rights under the Indenture without first instituting any
legal proceeding against the Property Trustee or any other Person. In addition,
if a Trust Enforcement Event has occurred and is continuing and such event is
attributable to the failure of the Debenture Issuer to make any interest,
principal or other required payments when due under the Indenture, then a Holder
of Capital Securities may directly institute a Direct Action against the
Debenture Issuer on or after the respective due date specified in the Debt
Securities.
(d) The Property Trustee shall notify all Holders of the Capital
Securities of any notice of any Indenture Event of Default received from the
Debenture Issuer with respect to the Debt Securities. Such notice shall state
that such Indenture Event of Default also constitutes a Trust Enforcement Event.
Except with respect to directing the time, method, and place of conducting a
proceeding for a remedy, the Property Trustee shall be under no obligation to
take any of the actions described in clause 7.5(b)(i) and (ii) above unless the
Property Trustee has obtained an opinion of independent tax counsel to the
effect that the Trust will not be classified as an association or publicly
traded partnership taxable as a corporation for United States federal income tax
purposes as a result of such action.
(e) In the event the consent of the Property Trustee, as the Holder of
the Debt Securities, is required under the Indenture with respect to any
amendment or modification of the Indenture, the Property Trustee shall request
the direction of the Holders of the Capital Securities with respect to such
amendment or modification and shall vote with respect to such amendment or
modification as directed by not less than a majority in liquidation amount of
the Capital
38
Securities voting together as a single class; provided, however, that where a
consent under the Indenture would require the consent of the Holders of more
than a majority of the aggregate principal amount of the Debt Securities, the
Property Trustee may only give such consent at the direction of the Holders of
at least the same proportion in aggregate stated liquidation amount of the
Securities. The Property Trustee shall not take any such action in accordance
with the directions of the Holders of the Securities unless the Property Trustee
has obtained an opinion of independent tax counsel to the effect that the Trust
will not be classified as an association or publicly traded partnership taxable
as a corporation for United States federal income tax purposes as a result of
such action.
(f) A waiver of an Indenture Event of Default with respect to the Debt
Securities will constitute a waiver of the corresponding Trust Enforcement
Event.
(g) Any required approval or direction of Holders of Capital Securities
may be given at a separate meeting of Holders of Capital Securities convened for
such purpose, at a meeting of all of the Holders of Securities or pursuant to
written consent. The Administrative Trustees will cause a notice of any meeting
at which Holders of Capital Securities are entitled to vote to be mailed to each
Holder of record of Capital Securities. Each such notice will include a
statement setting forth (i) the date of such meeting, (ii) a description of any
resolution proposed for adoption at such meeting on which such Holders are
entitled to vote and (iii) instructions for the delivery of proxies.
(h) No vote or consent of the Holders of Capital Securities shall be
required for the Trust to redeem and cancel Capital Securities or distribute
Debt Securities in accordance with this Trust Agreement and the terms of the
Securities.
(i) Notwithstanding that Holders of Capital Securities are entitled to
vote or consent under any of the circumstances described above, any of the
Securities that are owned at such time by the Debenture Issuer, any
Administrative Trustee or any entity directly or indirectly controlled by, or
under direct or indirect common control with, the Debenture Issuer or any
Administrative Trustee, shall not be entitled to vote or consent and shall, for
purposes of such vote or consent, be treated as if such Securities were not
outstanding; provided, however, that Persons otherwise eligible to vote to whom
the Debenture Issuer or any of its subsidiaries have pledged Capital Securities
may vote or consent with respect to such pledged Capital Securities under any of
the circumstances described herein.
(j) Subject to Sections 6.6(a) and 7.5(k), Holders of the Capital
Securities shall have no rights to appoint or remove the Trustees, who may be
appointed, removed or replaced solely by the Common Securities Holder.
(k) If an Indenture Event of Default has occurred and is continuing,
the Property Trustee and the Delaware Trustee may be removed at such time only
by a Majority in Liquidation Amount of the Capital Securities.
39
(l) The Trustees shall not revoke any action previously authorized or
approved by a vote of the Holders of the Securities, except by a subsequent vote
of the Holders of the Securities.
SECTION 7.6. VOTING RIGHTS OF COMMON SECURITIES.
(a) Except as provided under Section 6.1(b), this Section 7.6 or
Section 11.1 or as otherwise required by the Business Trust Act, the Trust
Indenture Act or other applicable law or provided by the Trust Agreement, the
Holders of the Common Securities will have no voting rights.
(b) Subject to Sections 6.6(a) and 7.5(k), the Holders of the Common
Securities shall be entitled, in accordance with Article VI of this Trust
Agreement, to vote to appoint, remove or replace any Trustee or to increase or
decrease the number of Trustees.
(c) Subject to Section 2.6 and only after all Trust Enforcement Events
with respect to the Capital Securities have been cured, waived, or otherwise
eliminated and subject to the requirement of the Property Trustee obtaining a
tax opinion in certain circumstances set forth in this paragraph (c), the
Holders of a Majority in Liquidation Amount of the Common Securities have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Property Trustee, or direct the exercise of any trust or
power conferred upon the Property Trustee under this Trust Agreement, including
the right to direct the Property Trustee, as Holder of the Debt Securities, to
(i) exercise the remedies available to it under the Indenture as a Holder of the
Debt Securities, (ii) consent to any amendment or modification of the Indenture
or the Debt Securities where such consent shall be required or (iii) waive any
past default and its consequences that is waivable under Section 5.13 of the
Indenture; provided, however, that where a consent or action under the Indenture
would require the consent or act of the Holders of more than a majority of the
aggregate principal amount of Debt Securities affected thereby, only the Holders
of the percentage of the aggregate stated liquidation amount of the Common
Securities which is at least equal to the percentage required under the
Indenture may direct the Property Trustee to have such consent or take such
action. Except with respect to directing the time, method, and place of
conducting a proceeding for a remedy, the Property Trustee shall be under no
obligation to take any of the actions described in clause 7.6(c)(i) and (ii)
above unless the Property Trustee has obtained an opinion of independent tax
counsel to the effect that, as a result of such action, for United States
federal income tax purposes the Trust will not be classified as other than a
grantor trust.
(d) If the Property Trustee fails to enforce its rights under the Debt
Securities after a Holder of Common Securities has made a written request, such
Holder of Common Securities may, to the extent permitted by applicable law,
directly institute a legal proceeding directly against the Debenture Issuer to
enforce the Property Trustee's rights under the Debt Securities without first
instituting any legal proceeding against the Property Trustee or any other
Person.
(e) A waiver of an Indenture Event of Default with respect to the Debt
Securities will constitute a waiver of the corresponding Trust Enforcement
Event.
40
(f) Any required approval or direction of Holders of Common Securities
may be given at a separate meeting of Holders of Common Securities convened for
such purpose, at a meeting of all of the Holders of Securities or pursuant to
written consent. The Administrative Trustees will cause a notice of any meeting
at which Holders of Common Securities are entitled to vote to be mailed to each
Holder of record of Common Securities. Each such notice will include a statement
setting forth (i) the date of such meeting, (ii) a description of any resolution
proposed for adoption at such meeting on which such Holders are entitled to vote
and (iii) instructions for the delivery of proxies.
(g) No vote or consent of the Holders of the Common Securities will be
required for the Trust to redeem and cancel Common Securities or to distribute
Debt Securities in accordance with the Trust Agreement and the terms of the
Securities.
SECTION 7.7. PAYING AGENT.
In the event that any Capital Securities are not in book-entry only
form, the Trust shall maintain in the Borough of Manhattan, City of New York,
State of New York, an office or agency where the Capital Securities may be
presented for payment ("Paying Agent"). The Trust may appoint the paying agent
and may appoint one or more additional paying agents in such other locations as
it shall determine. The term "Paying Agent" includes any additional paying
agent. The Trust may change any Paying Agent without prior notice to the
Holders. The Trust shall notify the Property Trustee of the name and address of
any Paying Agent not a party to this Trust Agreement. If the Trust fails to
appoint or maintain another entity as Paying Agent, the Property Trustee shall
act as such. The Trust or any of its Affiliates may act as Paying Agent. The
Property Trustee shall initially act as Paying Agent for the Securities. In the
event the Property Trustee shall no longer be the Paying Agent, the
Administrative Trustees shall appoint a successor (which shall be a bank or
trust company acceptable to the Debenture Issuer) to act as Paying Agent. The
Paying Agent shall be permitted to resign as Paying Agent upon thirty (30) days'
written notice to the Property Trustee and the Debenture Issuer.
SECTION 7.8. LISTING.
The Sponsor shall use its best efforts to cause the Capital Securities
to be listed for quotation on the New York Stock Exchange.
SECTION 7.9. TRANSFER OF SECURITIES.
(a) Securities may only be transferred, in whole or in part, in
accordance with the terms and conditions set forth in this Trust Agreement and
in the terms of the Securities. To the fullest extent permitted by law, any
transfer or purported transfer of any Security not made in accordance with this
Trust Agreement shall be null and void.
(b) (i) Subject to this Article 7, Capital Securities shall be
freely transferable.
(ii) The Holder of the Common Securities may not transfer the
Common Securities except (A) in compliance with a consolidation,
merger, sale, conveyance or
41
lease of the Sponsor in compliance with Article VIII of the Indenture
or (B) to the Sponsor or an Affiliate thereof in compliance with
applicable law, including the Securities Act and applicable state
securities and blue sky laws. To the fullest extent permitted by law,
any attempted transfer of the Common Securities other than as set forth
in the immediately preceding sentence shall be null and void.
(c) The Trust shall cause to be kept at the Corporate Trust Office of
the Property Trustee a register (the register maintained in such office being
herein sometimes referred to as the "Security Register") in which, subject to
such reasonable regulations as it may prescribe, the Trust shall provide for the
registration of Capital Securities and of transfers of Capital Securities. The
Property Trustee is hereby appointed "Security Registrar" for the purpose of
registering Capital Securities and transfers of Capital Securities as herein
provided.
(d) Upon surrender for registration of transfer of any Security at an
office or agency of the Trust designated for such purpose, the Trust shall
execute, and the Property Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Securities of any
authorized denominations and of a like aggregate principal amount.
(e) At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denominations and of a like aggregate principal
amount, upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the Trust shall
execute, and in the case of Capital Securities the Property Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
(f) Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Trust or the Property
Trustee) be duly endorsed, or be accompanied by a written instrument of transfer
in form satisfactory to the Trust and the Security Registrar duly executed, by
the Holder thereof or his attorney duly authorized in writing.
(g) No service charge shall be made for any registration of transfer or
exchange of Securities, but the Trust may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities.
(h) If the Securities are to be redeemed in part, the Trust shall not
be required (A) to issue, register the transfer of or exchange any Securities
during a period beginning at the opening of business fifteen (15) days before
the day of the mailing of a notice of redemption of any such Securities selected
for redemption under Section 7.4 and ending at the close of business on the day
of such mailing, or (B) to register the transfer or exchange of any Security so
selected for redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part.
SECTION 7.10. MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES.
If:
42
(a) any mutilated Certificates should be surrendered to the
Administrative Trustees, or if the Administrative Trustees shall receive
evidence to their satisfaction of the destruction, loss or theft of any
Certificate; and
(b) there shall be delivered to the Administrative Trustees such
security or indemnity as may be required by them to keep each of the Trustees,
the Sponsor and the Trust harmless, then, in the absence of notice that such
Certificate shall have been acquired by a protected purchaser, any
Administrative Trustee on behalf of the Trust shall execute and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of like denomination. In connection with the
issuance of any new Certificate under this Section 7.10, the Administrative
Trustees may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith. Any duplicate
Certificate issued pursuant to this Section shall constitute conclusive evidence
of an ownership interest in the relevant Securities, as if originally issued,
whether or not the lost, stolen or destroyed Certificate shall be found at any
time.
SECTION 7.11. DEEMED SECURITY HOLDERS.
The Trustees may treat the Person in whose name any Certificate shall
be registered on the register of the Trust as the sole holder of such
Certificate and of the Securities represented by such Certificate for purposes
of receiving Distributions and for all other purposes whatsoever and,
accordingly, shall not be bound to recognize any equitable or other claim to or
interest in such Certificate or in the Securities represented by such
Certificate on the part of any Person, whether or not the Trust shall have
actual or other notice thereof.
SECTION 7.12. GLOBAL SECURITIES.
On initial issuance, the Capital Securities shall be issued in
definitive form to the Sponsor. Upon transfer by the Sponsor of the Capital
Securities, the Capital Securities may be issued in the form of one or more
Global Securities. If the Capital Securities are to be issued in the form of one
or more Global Securities, then an Administrative Trustee on behalf of the Trust
shall execute and the Property Trustee shall authenticate and deliver one or
more Global Securities that (i) shall represent and shall be denominated in an
amount equal to the aggregate liquidation amount of all of the Capital
Securities to be issued in the form of Global Securities and not yet cancelled,
(ii) shall be registered in the name of the Depositary for such Global Security
or the nominee of such Depositary, and (iii) shall be delivered by the Property
Trustee to such Depositary or pursuant to such Depositary's instructions. Global
Securities shall bear a legend substantially to the following effect:
"This Capital Security is a Global Security within the meaning
of the Trust Agreement hereinafter referred to and is registered in the
name of The Depository Trust Company, a New York corporation (the
"Depositary"), or a nominee of the Depositary. This Capital Security is
exchangeable for Capital Securities registered in the name of a person
other than the Depositary or its nominee only in the limited
circumstances described in the Trust Agreement and no transfer of this
Capital Security (other than a
43
transfer of this Capital Security as a whole by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary) may be registered
except in limited circumstances.
Unless this Capital Security Certificate is presented by an
authorized representative of the Depositary to Compass Trust [___] or
its agent for registration of transfer, exchange or payment, and any
Capital Security Certificate issued is registered in the name of Cede &
Co. or such other name as requested by an authorized representative of
the Depositary (and any payment hereon is made to Cede & Co. or to such
other entity as is requested by an authorized representative of the
Depositary), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein."
Capital Securities not represented by a Global Security issued in
exchange for all or a part of a Global Security pursuant to this Section 7.12
shall be registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Property Trustee. Upon execution and
authentication, the Property Trustee shall deliver such Capital Securities not
represented by a Global Security to the Persons in whose names such definitive
Capital Securities are so registered.
At such time as all interests in Global Securities have been redeemed,
repurchased or cancelled, such Global Securities shall be, upon receipt thereof,
cancelled by the Property Trustee in accordance with standing procedures of the
Depositary. At any time prior to such cancellation, if any interest in Global
Securities is exchanged for Capital Securities not represented by a Global
Security, redeemed, cancelled or transferred to a transferee who receives
Capital Securities not represented by a Global Security therefor or any Capital
Security not represented by a Global Security is exchanged or transferred for
part of Global Securities, the principal amount of such Global Securities shall,
in accordance with the standing procedures of the Depositary, be reduced or
increased, as the case may be, and an endorsement shall be made on such Global
Securities by the Property Trustee to reflect such reduction or increase.
The Trust and the Property Trustee may for all purposes, including the
making of payments due on the Capital Securities, deal with the Depositary as
the authorized representative of the Holders for the purposes of exercising the
rights of Holders hereunder. The rights of the owner of any beneficial interest
in a Global Security shall be limited to those established by law and agreements
between such owners and depository participants provided, that no such agreement
shall give any rights to any Person against the Trust or the Property Trustee
without the written consent of the parties so affected. Multiple requests and
directions from and votes of the Depositary as holder of Capital Securities in
global form with respect to any particular matter shall not be deemed
inconsistent to the extent they do not represent an amount of Capital Securities
in excess of those held in the name of the Depositary or its nominee.
If at any time the Depositary for any Capital Securities represented by
one or more Global Securities notifies the Trust that it is unwilling or unable
to continue as Depositary for
44
such Capital Securities or if at any time the Depositary for such Capital
Securities shall no longer be eligible under this Section 7.12, the Trust shall
appoint a successor Depositary with respect to such Capital Securities. If a
successor Depositary for such Capital Securities is not appointed by the Trust
within ninety (90) days after the Trust receives such notice or becomes aware of
such ineligibility, the Trust's election that such Capital Securities be
represented by one or more Global Securities shall no longer be effective and
the Trust shall execute, and the Property Trustee will authenticate and deliver,
Capital Securities in definitive registered form, in any authorized
denominations, in an aggregate liquidation amount equal to the principal amount
of the Global Security or Capital Securities representing such Capital
Securities in exchange for such Global Security or Capital Securities.
The Trust may at any time and in its sole discretion determine that the
Capital Securities issued in the form of one or more Global Securities shall no
longer be represented by a Global Security or Capital Securities. In such event
the Trust shall execute, and the Property Trustee, shall authenticate and
deliver, Capital Securities in definitive registered form, in any authorized
denominations, in an aggregate liquidation amount equal to the principal amount
of the Global Security or Capital Securities representing such Capital
Securities, in exchange for such Global Security or Capital Securities.
Notwithstanding any other provisions of this Trust Agreement (other
than the provisions set forth in Section 7.9), Global Securities may not be
transferred as a whole except by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary or
a nominee of such successor Depositary.
Interests of beneficial owners in a Global Security may be transferred
or exchanged for Capital Securities not represented by a Global Security and
Capital Securities not represented by a Global Security may be transferred or
exchange for Global Securities in accordance with rules of the Depositary and
the provisions of Section 7.9.
ARTICLE 8 - DISSOLUTION AND TERMINATION OF TRUST
SECTION 8.1. DISSOLUTION AND TERMINATION OF TRUST.
(a) The Trust shall dissolve upon the earliest of:
(i) the bankruptcy of the Holder of the Common Securities or
the Sponsor;
(ii) the filing of a certificate of dissolution or its
equivalent with respect to the Sponsor or the revocation of the
Sponsor's charter and the expiration of ninety (90) days after the
revocation without a reinstatement thereof;
(iii) the entry of a decree of judicial dissolution of the
Sponsor or the Trust;
45
(iv) the time when all of the Securities shall have been
called for redemption and the amounts then due shall have been paid to
the Holders in accordance with the terms of the Securities;
(v) at the Sponsor's election by notice and direction to the
Property Trustee to distribute the Debt Securities to the Holders of
the Securities in exchange for all of the Securities, subject to the
receipt of any necessary approvals by the Federal Reserve that may then
be required under the applicable capital guidelines or policies of the
Federal Reserve; provided that the Sponsor will be required to obtain
an opinion of an independent counsel that the distribution of the Debt
Securities will not be taxable to the Holders of the Capital Securities
for United States federal income tax purposes; or
(vi) the time when all of the Administrative Trustees and the
Sponsor shall have consented to dissolution of the Trust provided such
action is taken before the issuance of any Securities.
(b) As soon as is practicable after the occurrence of an event referred
to in Section 8.1(a) and upon completion of the winding up and liquidation of
the Trust, the Trustees shall terminate the Trust by filing a certificate of
cancellation with the Secretary of State of the State of Delaware.
(c) The provisions of Section 4.2 and Article 9 shall survive the
termination of the Trust.
SECTION 8.2. LIQUIDATION DISTRIBUTION UPON DISSOLUTION OF THE TRUST.
(a) In the event of any voluntary or involuntary liquidation,
dissolution, or winding-up of the Trust (each a "Liquidation"), the Holders of
the Securities on the date of the Liquidation will be entitled to receive, out
of the assets of the Trust available for distribution to Holders of Securities
after satisfaction of the Trust's liabilities to creditors, if any,
distributions in cash or other immediately available funds in an amount equal to
the aggregate of the stated liquidation amount of $_____ per Security plus
accumulated and unpaid Distributions thereon to the date of payment (such amount
being the "Liquidation Distribution"), unless, in connection with such
Liquidation, Debt Securities in an aggregate stated principal amount equal to
the aggregate stated liquidation amount of, with an interest rate identical to
the distribution rate of, and accumulated and unpaid interest equal to accrued
and unpaid Distributions on, such Securities shall be distributed on a Pro Rata
basis to the Holders of the Securities in exchange for such Securities.
(b) If, upon any such Liquidation, the Liquidation Distribution can be
paid only in part because the Trust has insufficient assets available to pay in
full the aggregate Liquidation Distribution, then the amounts payable directly
by the Trust on the Securities shall be paid on a Pro Rata basis. The Holders of
the Common Securities will be entitled to receive distributions upon any such
Liquidation Pro Rata with the Holders of the Capital Securities except that if
an Indenture Event of Default has occurred and is continuing, the Capital
Securities shall have a
46
preference over the Common Securities with regard to such distributions as
provided for in Section 7.1(b).
ARTICLE 9 - LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES,
DELAWARE TRUSTEES OR OTHERS
SECTION 9.1. LIABILITY.
(a) Except as expressly set forth in this Trust Agreement, the
Guarantee and the terms of the Securities, the Sponsor:
(i) shall not be personally liable for the return of any
portion of the capital contributions (or any return thereon) of the
Holders of the Securities which shall be made solely from assets of the
Trust; and
(ii) shall not be required to pay to the Trust or to any
Holder of Securities any deficit upon dissolution of the Trust or
otherwise.
(b) Pursuant to Section 3803(a) of the Business Trust Act, the Holder
of the Common Securities shall be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware; provided, however,
the Holders of the Common Securities shall be liable for all of the debts and
obligations of the Trust (other than with respect to the Securities) to the
extent not satisfied out of the Trust's assets.
(c) Pursuant to Section 3803(a) of the Business Trust Act, the Holders
of the Capital Securities shall be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware.
SECTION 9.2. EXCULPATION.
(a) No Indemnified Person shall be liable, responsible or accountable
in damages or otherwise to the Trust or any Covered Person for any loss, damage
or claim incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Trust Agreement or by law, except
that an Indemnified Person shall be liable for any such loss, damage or claim
incurred by reason of such Indemnified Person's negligence or willful misconduct
with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Trust and upon such information, opinions,
reports or statements presented to the Trust by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Trust, including information, opinions, reports or
statements as to the
47
value and amount of the assets, liabilities, profits, losses or any other facts
pertinent to the existence and amount of assets from which Distributions to
Holders of Securities might properly be paid.
SECTION 9.3. FIDUCIARY DUTY.
(a) To the extent that, at law or in equity, an Indemnified Person has
duties (including fiduciary duties) and liabilities relating thereto to the
Trust or to any other Covered Person, an Indemnified Person acting under this
Trust Agreement shall not be liable to the Trust or to another Covered Person
for its good faith reliance on the provisions of this Trust Agreement. The
provisions of this Trust Agreement, to the extent that they restrict the duties
and liabilities of an Indemnified Person otherwise existing at law or in equity
(other than the duties imposed on the Property Trustee under the Trust Indenture
Act), are agreed by the parties hereto to replace such other duties and
liabilities of such Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between
any Covered Person and any Indemnified Person; or
(ii) whenever this Trust Agreement or any other agreement
contemplated herein or therein provides that an Indemnified Person
shall act in a manner that is, or provides terms that are, fair and
reasonable to the Trust or any Holder of Securities, the Indemnified
Person shall resolve such conflict of interest, take such action or
provide such terms, considering in each case the relative interest of
each party (including its own interest) to such conflict, agreement,
transaction or situation and the benefits and burdens relating to such
interests, any customary or accepted industry practices and any
applicable generally accepted accounting practices or principles. In
the absence of bad faith by the Indemnified Person, the resolution,
action or term so made, taken or provided by the Indemnified Person
shall not constitute a breach of this Trust Agreement or any other
agreement contemplated herein or of any duty or obligation of the
Indemnified Person at law or in equity or otherwise.
(c) Whenever in this Trust Agreement an Indemnified Person is permitted
or required to make a decision:
(i) in its "discretion" or under a grant of similar authority,
the Indemnified Person shall be entitled to consider such interests and
factors as it desires, including its own interests, and shall have no
duty or obligation to give any consideration to any interest of or
factors affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express standard,
the Indemnified Person shall act under such express standard and shall
not be subject to any other or different standard imposed by this Trust
Agreement or by applicable law.
48
SECTION 9.4. INDEMNIFICATION.
(a) The Debenture Issuer shall indemnify, to the full extent permitted
by law, any Debenture Issuer Indemnified Person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Trust) by reason of the fact
that he is or was a Debenture Issuer Indemnified Person against expenses
(including attorney fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Trust, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the Debenture Issuer
Indemnified Person did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the Trust, and, with
respect to any criminal action or proceeding, had reasonable cause to believe
that his conduct was unlawful.
(b) The Debenture Issuer shall indemnify, to the full extent permitted
by law, any Debenture Issuer Indemnified Person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the Trust to procure a judgment in its favor by
reason of the fact that he is or was a Debenture Issuer Indemnified Person
against expenses (including attorneys' fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Trust and except that no such
indemnification shall be made in respect of any claim, issue or matter as to
which such Debenture Issuer Indemnified Person shall have been adjudged to be
liable to the Trust unless and only to the extent that the Court of Chancery of
Delaware or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which such Court of Chancery or such other court
shall deem proper.
(c) Any indemnification under paragraphs (a) and (b) of this Section
9.4 (unless ordered by a court) shall be made by the Debenture Issuer only as
authorized in the specific case upon a determination that indemnification of the
Debenture Issuer Indemnified Person is proper in the circumstances because he
has met the applicable standard of conduct set forth in paragraphs (a) and (b).
Such determination shall be made (1) by the Administrative Trustees by a
majority vote of a quorum consisting of such Administrative Trustees who were
not parties to such action, suit or proceeding, (2) if such a quorum is not
obtainable, or, even if obtainable, if a quorum of disinterested Administrative
Trustees so directs, by independent legal counsel in a written opinion, or (3)
by the Common Security Holder of the Trust.
(d) Expenses (including attorneys' fees) incurred by a Debenture Issuer
Indemnified Person in defending a civil, criminal, administrative or
investigative action, suit or proceeding referred to in paragraphs (a) and (b)
of this Section 9.4 shall be paid by the Debenture Issuer in
49
advance of the final disposition of such action, suit or proceeding upon receipt
of an undertaking by or on behalf of such Debenture Issuer Indemnified Person to
repay such amount if it shall ultimately be determined that he is not entitled
to be indemnified by the Debenture Issuer as authorized in this Section 9.4.
Notwithstanding the foregoing, no advance shall be made by the Debenture Issuer
if a determination is reasonably and promptly made (1) by the Administrative
Trustees by a majority vote of a quorum of disinterested Administrative
Trustees, (2) if such a quorum is not obtainable, or, even if obtainable, if a
quorum of disinterested Administrative Trustees so directs, by independent legal
counsel in a written opinion or (3) the Common Security Holder of the Trust,
that, based upon the facts known to the Administrative Trustees, counsel or the
Common Security Holder at the time such determination is made, such Debenture
Issuer Indemnified Person acted in bad faith or in a manner that such person did
not believe to be in or not opposed to the best interests of the Trust, or, with
respect to any criminal proceeding, that such Debenture Issuer Indemnified
Person believed or had reasonable cause to believe his conduct was unlawful. In
no event shall any advance be made in instances where the Administrative
Trustees, independent legal counsel or Common Security Holder reasonably
determine that such person deliberately breached his duty to the Trust or its
Common or Capital Security Holders.
(e) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other paragraphs of this Section 9.4 shall not be
deemed exclusive of any other rights to which those seeking indemnification and
advancement of expenses may be entitled under any agreement, vote of
stockholders or disinterested directors of the Debenture Issuer or Capital
Security Holders of the Trust or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office. All
rights to indemnification under this Section 9.4 shall be deemed to be provided
by a contract between the Debenture Issuer and each Debenture Issuer Indemnified
Person who serves in such capacity at any time while this Section 9.4 is in
effect. Any repeal or modification of this Section 9.4 shall not affect any
rights or obligations then existing.
(f) The Debenture Issuer or the Trust may purchase and maintain
insurance on behalf of any person who is or was a Debenture Issuer Indemnified
Person against any liability asserted against him and incurred by him in any
such capacity, or arising out of his status as such, whether or not the
Debenture Issuer would have the power to indemnify him against such liability
under the provisions of this Section 9.4.
(g) For purposes of this Section 9.4, references to "the Trust" shall
include, in addition to the resulting or surviving entity, any constituent
entity (including any constituent of a constituent) absorbed in a consolidation
or merger, so that any person who is or was a director, trustee, officer or
employee of such constituent entity, or is or was serving at the request of such
constituent entity as a director, trustee, officer, employee or agent of another
entity, shall stand in the same position under the provisions of this Section
9.4 with respect to the resulting or surviving entity as he would have with
respect to such constituent entity if its separate existence had continued.
(h) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Section 9.4 shall, unless otherwise provided when
authorized or ratified,
50
continue as to a person who has ceased to be a Debenture Issuer Indemnified
Person and shall inure to the benefit of the heirs, executors and administrators
of such a person. The obligation to indemnify as set forth in this Section 9.4
shall survive the resignation or removal of the Delaware Trustee or the Property
Trustee or the termination of this Trust Agreement.
SECTION 9.5. OUTSIDE BUSINESSES.
Subject to the provisions of Section 6.3, any Covered Person, the
Sponsor, the Delaware Trustee and the Property Trustee may engage in or possess
an interest in other business ventures of any nature or description,
independently or with others, similar or dissimilar to the activities of the
Trust, and the Trust and the Holders of Securities shall have no rights by
virtue of this Trust Agreement in and to such independent ventures or the income
or profits derived therefrom, and the pursuit of any such venture, even if
competitive with the activities of the Trust, shall not be deemed wrongful or
improper. No Covered Person, the Sponsor, the Delaware Trustee or the Property
Trustee shall be obligated to present any particular investment or other
opportunity to the Trust even if such opportunity is of a character that, if
presented to the Trust, could be taken by the Trust, and any Covered Person, the
Sponsor, the Delaware Trustee and the Property Trustee shall have the right to
take for its own account (individually or as a partner or fiduciary) or to
recommend to others any such particular investment or other opportunity. Any
Covered Person, the Delaware Trustee and the Property Trustee may engage or be
interested in any financial or other transaction with the Sponsor or any
Affiliate of the Sponsor, or may act as depositary for, trustee or agent for, or
act on any committee or body of holders of, securities or other obligations of
the Sponsor or its Affiliates.
ARTICLE 10 - ACCOUNTING
SECTION 10.1. FISCAL YEAR.
The fiscal year ("Fiscal Year") of the Trust shall be the calendar
year, or such other year as is required by the Code.
SECTION 10.2. CERTAIN ACCOUNTING MATTERS.
(a) At all times during the existence of the Trust, the Administrative
Trustees shall keep, or cause to be kept, full books of account, records and
supporting documents, which shall reflect in reasonable detail, each transaction
of the Trust. The books of account shall be maintained on the accrual method of
accounting, in accordance with generally accepted accounting principles,
consistently applied. The Trust shall use the accrual method of accounting for
United States federal income tax purposes. The books of account and the records
of the Trust shall be examined by and reported upon as of the end of each Fiscal
Year of the Trust by a firm of independent certified public accountants selected
by the Administrative Trustees.
(b) The Administrative Trustees shall cause to be prepared and
delivered to each of the Holders of Securities, within ninety (90) days after
the end of each Fiscal Year of the Trust, annual financial statements of the
Trust, including a balance sheet of the Trust as of the end of such Fiscal Year,
and the related statements of income or loss.
51
(c) The Administrative Trustees shall cause to be duly prepared and
delivered to each of the Holders of Securities, an annual United States federal
income tax information statement, required by the Code, containing such
information with regard to the Securities held by each Holder as is required by
the Code and the Treasury Regulations. Notwithstanding any right under the Code
to deliver any such statement at a later date, the Administrative Trustees shall
endeavor to deliver all such statements within thirty (30) days after the end of
each Fiscal Year of the Trust.
(d) The Administrative Trustees shall cause to be duly prepared and
filed with the appropriate taxing authority, an annual United States federal
income tax return, on a Form 1041 or such other form required by United States
federal income tax law, and any other annual income tax returns required to be
filed by the Administrative Trustees on behalf of the Trust with any state or
local taxing authority.
SECTION 10.3. BANKING.
The Trust shall maintain one or more bank accounts in the name and for
the sole benefit of the Trust; provided, however, that all payments of funds in
respect of the Debt Securities held by the Property Trustee shall be made
directly to the Property Account and no other funds of the Trust shall be
deposited in the Property Account. The sole signatories for such accounts shall
be designated by the Administrative Trustees; provided, however, that the
Property Trustee shall designate the signatories for the Property Account.
SECTION 10.4. WITHHOLDING.
The Trust and the Administrative Trustees shall comply with all
withholding requirements under United States federal, state and local law. The
Trust shall request, and the Holders shall provide to the Trust, such forms or
certificates as are necessary to establish an exemption from withholding with
respect to each Holder, and any representations and forms as shall reasonably be
requested by the Trust to assist it in determining the extent of, and in
fulfilling, its withholding obligations. The Administrative Trustees shall file
required forms with applicable jurisdictions and, unless an exemption from
withholding is properly established by a Holder, shall remit amounts withheld
with respect to the Holder to applicable jurisdictions. To the extent that the
Trust is required to withhold and pay over any amounts to any authority with
respect to distributions or allocations to any Holder, the amount withheld shall
be deemed to be a distribution in the amount of the withholding to the Holder.
In the event of any claimed over withholding, Holders shall be limited to an
action against the applicable jurisdiction. If the amount required to be
withheld was not withheld from actual Distributions made, the Trust may reduce
subsequent Distributions by the amount of such withholding.
52
ARTICLE 11 - AMENDMENTS AND MEETINGS
SECTION 11.1. AMENDMENTS.
(a) Except as otherwise provided in this Trust Agreement or by any
applicable terms of the Securities, this Trust Agreement may only be amended by
a written instrument approved and executed by the Sponsor and (i) the
Administrative Trustees (or, if there are more than two Administrative Trustees,
a majority of the Administrative Trustees) and (ii) the Property Trustee if the
amendment affects the rights, powers, duties, obligations or immunities of the
Property Trustee; and (iii) the Delaware Trustee if the amendment affects the
rights, powers, duties, obligations or immunities of the Delaware Trustee.
(b) No amendment shall be made, and any such purported amendment shall
be void and ineffective:
(i) unless, in the case of any proposed amendment, the
Property Trustee shall have first received an Officers' Certificate
from each of the Trust and the Sponsor that such amendment is permitted
by, and conforms to, the terms of this Trust Agreement (including the
terms of the Securities);
(ii) unless, in the case of any proposed amendment which
affects the rights, powers, duties, obligations or immunities of the
Property Trustee, the Property Trustee shall have first received:
a. an Officers' Certificate from each of the Trust
and the Sponsor that such amendment is permitted by, and
conforms to, the terms of this Trust Agreement (including the
terms of the Securities) and that all conditions precedent to
the execution and delivery of such amendment have been
satisfied; and
b. an opinion of counsel (who may be counsel to the
Sponsor or the Trust) that such amendment is permitted by, and
conforms to, the terms of this Trust Agreement (including the
terms of the Securities) and that all conditions precedent to
the execution and delivery of such amendment have been
satisfied; and
(iii) to the extent the result of such amendment would be to:
a. cause the Trust to be classified as other than a
grantor trust for United States federal income tax purposes;
b. reduce or otherwise adversely affect the powers of
the Property Trustee in contravention of the Trust Indenture
Act; or
c. cause the Trust to be deemed to be an Investment
Company required to be registered under the Investment Company
Act.
53
(c) If the Trust has issued any Securities that remain outstanding:
(i) any amendment that would (a) change the amount or timing
of any distribution of the Securities or otherwise adversely affect the
amount of any distribution required to be made in respect of the
Securities as of a specified date or (b) restrict the right of a Holder
of Securities to institute suit for the enforcement of any such payment
on or after such date, will entitle the Holders of such Securities,
voting together as a single class, to vote on such amendment or
proposal and such amendment or proposal shall not be effective except
with the approval of each of the Holders of the Securities affected
thereby; and
(ii) Except as provided in Section 11.1(c)(i) hereof, any
provision of this Trust Agreement may be amended by the Trustee and the
Sponsor with (i) the consent of the Holders representing not less than
a Majority in Liquidation Amount of the Securities outstanding and (ii)
receipt by the Trustees of an opinion of counsel to the effect that
such amendment or the exercise of any power granted to the Trustees in
accordance with such amendment will not affect the Trust's status as a
grantor trust for United States federal income tax purposes or the
Trust's exemption from status of an Investment Company.
(d) This Section 11.1 shall not be amended without the consent of all
of the Holders of the Securities.
(e) Article 4 shall not be amended without the consent of the Holders
of a Majority in Liquidation Amount of the Common Securities.
(f) The rights of the Holders of the Common Securities under Article 5
to increase or decrease the number of, and appoint and remove Trustees shall not
be amended without the consent of the Holders of a Majority in Liquidation
Amount of the Common Securities.
(g) Notwithstanding Section 11.1(c), this Trust Agreement may be
amended without the consent of the Holders of the Securities, if such amendment
does not adversely affect in any material respect the rights of the holders of
the Securities, to:
(i) cure any ambiguity;
(ii) correct or supplement any provision in this Trust
Agreement that may be defective or inconsistent with any other
provision of this Trust Agreement;
(iii) add to the covenants, restrictions or obligations of the
Sponsor;
(iv) to conform to any change in Rule 3a-5 of the Investment
Company Act or written change in interpretation or application of Rule
3a-5 of the Investment Company Act by any legislative body, court,
government agency or regulatory authority; or
54
(v) to modify, eliminate and add to any provision of this
Trust Agreement to ensure that the Trust will be classified as a
grantor trust for United States federal income tax purposes at all
times that any Securities are outstanding or to ensure that the Trust
will not be required to register as an Investment Company under the
Investment Company Act.
SECTION 11.2. MEETINGS OF THE HOLDERS OF SECURITIES; ACTION BY WRITTEN CONSENT.
(a) Meetings of the Holders of any class of Securities may be called at
any time by the Administrative Trustees (or as provided in the terms of the
Securities) to consider and act on any matter on which Holders of such class of
Securities are entitled to act under the terms of this Trust Agreement, the
terms of the Securities or the rules of any stock exchange on which the Capital
Securities are listed or admitted for trading. The Administrative Trustees shall
call a meeting of the Holders of such class if directed to do so by the Holders
of at least 10% in Liquidation Amount of such class of Securities. Such
direction shall be given by delivering to the Administrative Trustees one or
more calls in a writing stating that the signing Holders of Securities wish to
call a meeting and indicating the general or specific purpose for which the
meeting is to be called. Any Holders of Securities calling a meeting shall
specify in writing the Certificates held by the Holders of Securities exercising
the right to call a meeting and only those Securities specified shall be counted
for purposes of determining whether the required percentage set forth in the
second sentence of this paragraph has been met.
(b) Except to the extent otherwise provided in the terms of the
Securities, the following provisions shall apply to meetings of Holders of
Securities:
(i) notice of any such meeting shall be given to all the
Holders of Securities having a right to vote thereat at least 7 days
and not more than sixty (60) days before the date of such meeting.
Whenever a vote, consent or approval of the Holders of Securities is
permitted or required under this Trust Agreement or the rules of any
stock exchange on which the Capital Securities are listed or admitted
for trading, such vote, consent or approval may be given at a meeting
of the Holders of Securities. Any action that may be taken at a meeting
of the Holders of Securities may be taken without a meeting and without
prior notice if a consent in writing setting forth the action so taken
is signed by the Holders of Securities owning not less than the minimum
amount of Securities in liquidation amount that would be necessary to
authorize or take such action at a meeting at which all Holders of
Securities having a right to vote thereon were present and voting.
Prompt notice of the taking of action without a meeting shall be given
to the Holders of Securities entitled to vote who have not consented in
writing. The Administrative Trustees may specify that any written
ballot submitted to the Security Holders for the purpose of taking any
action without a meeting shall be returned to the Trust within the time
specified by the Administrative Trustees;
(ii) each Holder of a Security may authorize any Person to act
for it by proxy on all matters in which a Holder of Securities is
entitled to participate, including waiving notice of any meeting, or
voting or participating at a meeting. No proxy shall be valid after the
expiration of 11 months from the date thereof unless otherwise provided
in the
55
proxy. Every proxy shall be revocable at the pleasure of the Holder of
Securities executing such proxy. Except as otherwise provided herein,
all matters relating to the giving, voting or validity of proxies shall
be governed by the General Corporation Law of the State of Delaware
relating to proxies, and judicial interpretations thereunder, as if the
Trust were a Delaware corporation and the Holders of the Securities
were stockholders of a Delaware corporation;
(iii) each meeting of the Holders of the Securities shall be
conducted by the Administrative Trustees or by such other Person that
the Administrative Trustees may designate; and
(iv) unless the Business Trust Act, this Trust Agreement, the
terms of the Securities, the Trust Indenture Act or the listing rules
of any stock exchange on which the Capital Securities are then listed
for trading, otherwise provides, the Administrative Trustees, in their
sole discretion, shall establish all other provisions relating to
meetings of Holders of Securities, including notice of the time, place
or purpose of any meeting at which any matter is to be voted on by any
Holders of Securities, waiver of any such notice, action by consent
without a meeting, the establishment of a record date, quorum
requirements, voting in person or by proxy or any other matter with
respect to the exercise of any such right to vote.
ARTICLE 12 - REPRESENTATIONS OF PROPERTY TRUSTEE AND DELAWARE TRUSTEE
SECTION 12.1. REPRESENTATIONS AND WARRANTIES OF THE PROPERTY TRUSTEE.
The Trustee that acts as initial Property Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Trust Agreement,
and each Successor Property Trustee represents and warrants to the Trust and the
Sponsor at the time of the Successor Property Trustee's acceptance of its
appointment as Property Trustee that:
(a) the Property Trustee is a banking corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation or organization, with trust power and authority to execute and
deliver, and to carry out and perform its obligations under the terms of, this
Trust Agreement;
(b) the Property Trustee satisfies the requirements set forth in
Section 6.3(a); and
(c) the execution, delivery and performance by the Property Trustee of
this Trust Agreement have been duly authorized by all necessary corporate action
on the part of the Property Trustee. This Trust Agreement has been duly executed
and delivered by the Property Trustee, and it constitutes a legal, valid and
binding obligation of the Property Trustee, enforceable against it in accordance
with its terms, subject to applicable bankruptcy, reorganization, moratorium,
insolvency and other similar laws affecting creditors' rights generally and to
general principles of equity and the discretion of the court (regardless of
whether the enforcement of such remedies is considered in a proceeding in equity
or at law.
56
SECTION 12.2. REPRESENTATIONS AND WARRANTIES OF THE DELAWARE TRUSTEE.
The Trustee that acts as initial Delaware Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Trust Agreement,
and each Successor Delaware Trustee represents and warrants to the Trust and the
Sponsor at the time of the Successor Delaware Trustee's acceptance of its
appointment as Delaware Trustee that:
(a) the Delaware Trustee satisfies the requirements set forth in
Section 6.2, satisfies Section 3807(a) of the Business Trust Act and has
the power and authority to execute and deliver, and to carry out and perform its
obligations under the terms of, this Trust Agreement and, if it is not a natural
person, is duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation or organization;
(b) the Delaware Trustee has been authorized to perform its obligations
under the Certificate of Trust and this Trust Agreement. This Trust Agreement
under Delaware law constitutes a legal, valid and binding obligation of the
Delaware Trustee, enforceable against it in accordance with its terms, subject
to applicable bankruptcy, reorganization, moratorium, insolvency and
other similar laws affecting creditors' rights generally and to general
principles of equity and the discretion of the court (regardless of whether the
enforcement of such remedies is considered in a proceeding in equity or at law);
and
(c) no consent, approval or authorization of, or registration with or
notice to, any Delaware or federal banking authority is required for the
execution, delivery or performance by the Delaware Trustee of this Trust
Agreement.
ARTICLE 13 - MISCELLANEOUS
SECTION 13.1. NOTICES.
All notices provided for in this Trust Agreement shall be in writing,
duly signed by the party giving such notice, and shall be delivered, telecopied
or mailed by registered or certified mail, as follows:
(a) if given to the Trust, in care of the Administrative Trustees at
the Trust's mailing address set forth below (or such other address as the Trust
may give notice of to the Property Trustee, the Delaware Trustee and the Holders
of the Securities):
57
c/o Compass Bancshares, Inc.
00 Xxxxx 00xx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Secretary
Facsimile No: (000) 000-0000
(b) if given to the Delaware Trustee, at the mailing address set forth
below (or such other address as the Delaware Trustee may give notice of to the
Administrative Trustees, the Property Trustee and the Holders of the
Securities):
Chase Manhattan Bank USA, National Association
c/o XX Xxxxxx Xxxxx
000 Xxxxxxx Xxxxxxxxxx Xxxx
0xx Xxxxx/XXX0
Xxxxxx, Xxxxxxxx 00000
Attention: Institutional Trust Services
Facsimile No: (000) 000-0000
(c) if given to the Property Trustee, at its Corporate Trust Office (or
such other address as the Property Trustee may give notice of to the
Administrative Trustees, the Delaware Trustee and the Holders of the
Securities).
(d) if given to the Holder of the Common Securities, at the mailing
address of the Sponsor set forth below (or such other address as the Holder of
the Common Securities may give notice of to the Property Trustee, the Delaware
Trustee and the Trust):
c/o Compass Bancshares, Inc.
00 Xxxxx 00xx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Secretary
Facsimile No: (000) 000-0000
(e) if given to any other Holder, at the address set forth on the
register of the Trust. All such notices shall be deemed to have been given when
received in person, telecopied with receipt confirmed or mailed by first class
mail, postage prepaid except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address of which no notice
was given, such notice or other document shall be deemed to have been delivered
on the date of such refusal or inability to deliver.
SECTION 13.2. GOVERNING LAW.
This Trust Agreement and the Securities and the rights of the parties
hereunder and thereunder shall be governed by and interpreted in accordance with
the laws of the State of Delaware.
58
SECTION 13.3. INTENTION OF THE PARTIES.
It is the intention of the parties hereto that the Trust be classified
for United States federal income tax purposes as a grantor trust. The provisions
of this Trust Agreement shall be interpreted in a manner consistent with such
classification.
SECTION 13.4. HEADINGS.
Headings contained in this Trust Agreement are inserted for convenience
of reference only and do not affect the interpretation of this Trust Agreement
or any provision hereof.
SECTION 13.5. SUCCESSORS AND ASSIGNS.
Whenever in this Trust Agreement any of the parties hereto is named or
referred to, the successors and assigns of such party shall be deemed to be
included, and all covenants and agreements in this Trust Agreement by the
Sponsor and the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether so expressed.
SECTION 13.6. PARTIAL ENFORCEABILITY.
If any provision of this Trust Agreement, or the application of such
provision to any Person or circumstance, shall be held invalid, the remainder of
this Trust Agreement, or the application of such provision to persons or
circumstances other than those to which it is held invalid, shall not be
affected thereby.
SECTION 13.7. COUNTERPARTS.
This Trust Agreement may contain more than one counterpart of the
signature page and this Trust Agreement may be executed by the affixing of the
signature of each of the Trustees to one of such counterpart signature pages.
All of such counterpart signature pages shall be read as though one, and they
shall have the same force and effect as though all of the signers had signed a
single signature page.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE(S)]
59
IN WITNESS WHEREOF, the undersigned have caused these presents to be
executed as of the day and year first above written.
COMPASS BANCSHARES, INC., as Sponsor, as Common
Securities Holder and as Debenture Issuer
By:
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
XX XXXXXX XXXXX BANK, as Property Trustee
By:
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION,
as Delaware Trustee
By:
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
------------------------------------------------
[_________________], as Administrative Trustee
------------------------------------------------
[_________________], as Administrative Trustee
------------------------------------------------
[_________________], as Administrative Trustee
------------------------------------------------
[_________________], as Administrative Trustee
60
EXHIBIT A
[IF THE CAPITAL SECURITY IS TO BE A GLOBAL CAPITAL SECURITY, INSERT THE
FOLLOWING: THIS CAPITAL SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
TRUST AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE "DEPOSITARY"), OR A
NOMINEE OF THE DEPOSITARY. THIS CAPITAL SECURITY IS EXCHANGEABLE FOR CAPITAL
SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS
NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE TRUST AGREEMENT AND
NO TRANSFER OF THIS CAPITAL SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS
A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE
REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS CAPITAL SECURITY CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITARY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CAPITAL SECURITY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REGISTERED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT HEREON IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
A-1
CERTIFICATE NO. ___________ NUMBER OF CAPITAL SECURITIES: _____________
CUSIP NO. _________________
CERTIFICATE EVIDENCING [______]% CAPITAL SECURITIES
OF
COMPASS TRUST [___]
[______]% CAPITAL SECURITIES
FULLY AND UNCONDITIONALLY
GUARANTEED BY COMPASS BANCSHARES, INC.
COMPASS TRUST [___], a statutory business trust created under the laws of the
State of Delaware (the "Trust"), hereby certifies that __________ (the "Holder")
is the registered owner of __________ capital securities of the Trust
representing undivided beneficial ownership interests in the assets of the Trust
designated the "[_____]% Capital Securities" (the "Capital Securities"). The
Capital Securities are transferable on the register of the Trust, in person or
by a duly authorized attorney, upon surrender of this certificate duly endorsed
and in proper form for transfer as provided in the Trust Agreement (as defined
below). The designation, rights, privileges, restrictions, preferences and other
terms and provisions of the Capital Securities represented hereby are issued and
shall in all respects be subject to the provisions of the Amended and Restated
Trust Agreement of the Trust, dated as of March [___], 2002, as the same may be
amended from time to time (the "Trust Agreement"), by and among COMPASS
BANCSHARES, INC., [_______________], [_________________] and [____________], as
Administrative Trustees, [XX XXXXXX XXXXX BANK], as Property Trustee, and CHASE
MANHATTAN BANK USA, NATIONAL ASSOCIATION, as Delaware Trustee, and the holders
of undivided beneficial ownership interests in the assets of the Trust.
Capitalized terms used herein but not defined shall have the meaning given them
in the Trust Agreement. The Holder is entitled to the benefits of the Guarantee
to the extent described therein. The Sponsor will provide a copy of the Trust
Agreement, the Guarantee and the Indenture to a Holder without charge upon
written request to the Sponsor at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States federal,
state and local income tax purposes, the Debt Securities as indebtedness and the
Capital Securities as evidence of undivided beneficial ownership interests in
the Debt Securities.
A-2
IN WITNESS WHEREOF, the Trust has executed this certificate this [___]
day of [_________], 20[__].
COMPASS TRUST [___]
By:
----------------------------------------
Name:
--------------------------------------
Title: Administrative Trustee
This is one of the Capital Securities referred to in the within-mentioned Trust
Agreement.
XX XXXXXX XXXXX BANK,
as Property Trustee
By:
----------------------------------------
Authorized Officer
A-3
EXHIBIT B
TRANSFER OF THIS CERTIFICATE IS SUBJECT TO THE CONDITIONS SET FORTH IN THE TRUST
AGREEMENT REFERRED TO BELOW.
CERTIFICATE NO. ________ NUMBER OF COMMON SECURITIES: ________
CERTIFICATE EVIDENCING COMMON SECURITIES
OF
COMPASS TRUST [___]
[_____]% COMMON SECURITIES
COMPASS TRUST [___], a statutory business trust created under the laws
of the State of Delaware (the "Trust"), hereby certifies that COMPASS
BANCSHARES, INC. (the "Holder") is the registered owner of common securities of
the Trust representing an undivided beneficial ownership interest in the assets
of the Trust designated the "[_____]% Common Securities" (the "Common
Securities"). The Common Securities are not transferable and any attempted
transfer thereof shall be void except as permitted by applicable law and by
Section 7.9(b)(ii) of the Trust Agreement (as defined below). The designation,
rights, privileges, restrictions, preferences and other terms and provisions of
the Common Securities represented hereby are issued and shall in all respects be
subject to the provisions of the Amended and Restated Trust Agreement of the
Trust, dated as of March [___], 2002 (as the same may be amended from time to
time, the "Trust Agreement"), by and among COMPASS BANCSHARES, INC.,
[________________], [_________________] and [____________], as Administrative
Trustees, [XX XXXXXX CHASE BANK], as Property Trustee, and CHASE MANHATTAN BANK
USA, NATIONAL ASSOCIATION, as Delaware Trustee, and the holders of undivided
beneficial ownership interests in the assets of the Trust. The Holder is
entitled to the benefits of the Guarantee to the extent described therein.
Capitalized terms used herein but not defined shall have the meaning given them
in the Trust Agreement. The Sponsor will provide a copy of the Trust Agreement,
the Guarantee and the Indenture to the Holder without charge upon written
request to the Sponsor at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States federal,
state and local income tax purposes, the Debt Securities as indebtedness and the
Common Securities as evidence of an undivided indirect beneficial ownership
interest in the Debt Securities.
B-1
IN WITNESS WHEREOF, the Trust has executed this certificate this [___]
day of [_________], 20__.
COMPASS TRUST [___]
By:
----------------------------------------
Name:
--------------------------------------
Title: Administrative Trustee
B-2
