EXHIBIT 10.9
PARADIGM CAPITAL TRUST I
AMENDED AND RESTATED TRUST AGREEMENT
among
PARADIGM BANCORPORATION, INC., as Depositor,
FIRST UNION TRUST COMPANY, NATIONAL ASSOCIATION, as Property Trustee,
FIRST UNION TRUST COMPANY, NATIONAL ASSOCIATION, as Delaware Trustee,
and
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
Dated as of December 1, 1999
TABLE OF CONTENTS
Page
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ARTICLE I
DEFINED TERMS.................................................................... 2
Section 101. Definitions........................................................ 2
ARTICLE II
ESTABLISHMENT OF THE TRUST....................................................... 10
Section 201. Name............................................................... 10
Section 202. Office of the Delaware Trustee; Principal Place of Business........ 10
Section 203. Initial Contribution of Trust Property; Organizational Expenses.... 10
Section 204. Issuance of the Trust Preferred Securities......................... 11
Section 205. Issuance of the Common Securities; Subscription and Purchase
of Debentures...................................................... 11
Section 206. Declaration of Trust............................................... 11
Section 207. Authorization to Enter into Certain Transactions................... 11
Section 208. Assets of Trust.................................................... 15
Section 209. Title to Trust Property............................................ 15
ARTICLE III
PAYMENT ACCOUNT.................................................................. 15
Section 301. Payment Account.................................................... 15
ARTICLE IV
DISTRIBUTIONS; REDEMPTION........................................................ 15
Section 401. Distributions...................................................... 15
Section 402. Redemption......................................................... 16
Section 403. Subordination of Common Securities................................. 18
Section 404. Payment Procedures................................................. 19
Section 405. Tax Returns and Reports............................................ 19
Section 406. Payment of Taxes, Duties, etc. of the Trust........................ 20
Section 407. Payments Under Indenture........................................... 20
ARTICLE V
TRUST SECURITIES CERTIFICATES.................................................... 20
Section 501. Initial Ownership.................................................. 20
Section 502. The Trust Securities Certificates.................................. 20
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Section 503. Execution, Authentication and Delivery of Trust Securities
Certificates....................................................... 20
Section 504. Registration of Transfer and Exchange of Trust Preferred
Securities Certificates............................................ 21
Section 505. Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates....................................................... 22
Section 506. Persons Deemed Securityholders..................................... 23
Section 507. Access to List of Securityholders' Names and Addresses............. 23
Section 508. Maintenance of Office or Agency.................................... 23
Section 509. Appointment of Paying Agent........................................ 24
Section 510. Ownership of Common Securities by Depositor........................ 24
Section 511. Trust Securities Certificates...................................... 24
Section 512. Reserved........................................................... 25
Section 513. Rights of Securityholders.......................................... 25
ARTICLE VI
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING........................................ 26
Section 601. Limitations on Voting Rights....................................... 26
Section 602. Notice of Meetings................................................. 27
Section 603. Meetings of Trust Preferred Securityholders........................ 27
Section 604. Voting Rights...................................................... 27
Section 605. Proxies, etc....................................................... 28
Section 606. Securityholder Action by Written Consent........................... 28
Section 607. Record Date for Voting and Other Purposes.......................... 28
Section 608. Acts of Securityholders............................................ 28
Section 609. Inspection of Records.............................................. 29
ARTICLE VII
REPRESENTATIONS AND WARRANTIES................................................... 30
Section 701. Representations and Warranties of the Bank and the Property
Trustee............................................................ 30
Section 702. Representations and Warranties of the Delaware Bank and the
Delaware Trustee................................................... 31
Section 703. Representations and Warranties of Depositor........................ 32
ARTICLE VIII
TRUSTEES......................................................................... 33
Section 801. Certain Duties and Responsibilities................................ 33
Section 802. Certain Notices.................................................... 34
Section 803. Certain Rights of Property Trustee................................. 35
Section 804. Not Responsible for Recitals or Issuance of Securities............. 37
Section 805. May Hold Securities................................................ 37
Section 806. Compensation; Indemnity; Fees...................................... 37
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Section 807. Corporate Property Trustee Required; Eligibility of Trustees....... 38
Section 808. Conflicting Interests.............................................. 38
Section 809. Co-Trustees and Separate Trustee................................... 38
Section 810. Resignation and Removal; Appointment of Successor.................. 40
Section 811. Acceptance of Appointment by Successor............................. 41
Section 812. Merger, Conversion, Consolidation or Succession to Business........ 42
Section 813. Preferential Collection of Claims Against Depositor or Trust....... 42
Section 814. Reports by Property Trustee........................................ 42
Section 815. Reports to the Property Trustee.................................... 43
Section 816. Evidence of Compliance with Conditions Precedent................... 43
Section 817. Number of Trustees................................................. 43
Section 818. Delegation of Power................................................ 44
Section 819. Voting............................................................. 44
ARTICLE IX
TERMINATION, LIQUIDATION AND MERGER.............................................. 44
Section 901. Termination Upon Expiration Date................................... 44
Section 902. Early Termination.................................................. 44
Section 903. Termination........................................................ 45
Section 904. Liquidation........................................................ 45
Section 905. Mergers, Consolidations, Amalgamations or Replacements of
the Trust.......................................................... 47
ARTICLE X
MISCELLANEOUS PROVISIONS......................................................... 48
Section 1001. Limitation of Rights of Securityholders............................ 48
Section 1002. Amendment.......................................................... 48
Section 1003. Separability....................................................... 49
Section 1004. Governing Law...................................................... 49
Section 1005. Payments Due on Non-Business Day................................... 49
Section 1006. Successors......................................................... 50
Section 1007. Headings........................................................... 50
Section 1008. Reports, Notices and Demands....................................... 50
Section 1009. Agreement not to Petition.......................................... 51
Section 1010. Trust Indenture Act; Conflict with Trust Indenture Act............. 51
Section 1011. Acceptance of Terms of Trust Agreement, Guarantee and Indenture.... 51
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EXHIBITS
Exhibit A Certificate of Trust
Exhibit B Form of Common Securities Certificate
Exhibit C Form of Expense Agreement
Exhibit D Form of Trust Preferred Securities Certificate
Exhibit E Form of Trust Preferred Securities Certificate of Authentication
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CROSS-REFERENCE TABLE
Section of Amended
Section of Trust Indenture and Restated
Act of 1939, as amended Trust Agreement
----------------------- ------------------
310(a)(1)............................................... 807
310(a)(2)............................................... 807
310(a)(3)............................................... 807
310(a)(4)............................................... 207(a)(ii)
310(b).................................................. 808
311(a).................................................. 813
311(b).................................................. 813
312(a).................................................. 507
312(b).................................................. 507
312(c).................................................. 507
313(a).................................................. 814(a)
313(a)(4)............................................... 814(b)
313(b).................................................. 814(b)
313(c).................................................. 1008
313(d).................................................. 814(c)
314(a).................................................. 815
314(b).................................................. Not Applicable
314(c)(1)............................................... 816
314(c)(2)............................................... 816
314(c)(3)............................................... Not Applicable
314(d).................................................. Not Applicable
314(e).................................................. 101, 816
315(a).................................................. 801(a), 803(a)
315(b).................................................. 802, 1008
315(c).................................................. 801(a)
315(d).................................................. 801, 803
316(a)(2)............................................... Not Applicable
316(b).................................................. Not Applicable
316(c).................................................. 607
317(a)(1)............................................... Not Applicable
317(a)(2)............................................... Not Applicable
317(b).................................................. 509
318(a................................................... 1010
Note: This Cross-Reference Table does not constitute part of this Agreement and
shall not affect the interpretation of any of its terms or provisions.
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AMENDED AND RESTATED TRUST AGREEMENT
AMENDED AND RESTATED TRUST AGREEMENT, dated as of December 1, 1999, among
(i) PARADIGM BANCORPORATION, INC., a Texas corporation (including any successors
or assigns, the "Depositor"), (ii) FIRST UNION TRUST COMPANY, NATIONAL
ASSOCIATION, a national banking association with its principal place of business
in the State of Delaware, as property trustee (the "Property Trustee" and, in
its separate corporate capacity and not in its capacity as Property Trustee, the
"Bank"), (iii) FIRST UNION TRUST COMPANY, NATIONAL ASSOCIATION, a national
banking association with its principal place of business in the State of
Delaware, as Delaware trustee (the "Delaware Trustee," and, in its separate
corporate capacity and not in its capacity as Delaware Trustee, the "Delaware
Bank") (iv) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, M.D., an individual, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, an
individual, and ▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., an individual, each of whose address is c/o
Company (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 Depositor, the Delaware Trustee, and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, M.D.,
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, and ▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., each as an Administrative Trustee, have
heretofore duly declared and established a business trust pursuant to the
Delaware Business Trust Act by the entering into of that certain Trust
Agreement, dated as of November 24, 1999 (the "Original Trust Agreement"), and
by the execution and filing by the Delaware Trustee and the Administrative
Trustees with the Secretary of State of the State of Delaware of the Certificate
of Trust, filed on November 24, 1999, the form of which is attached as Exhibit
A; and
WHEREAS, the Depositor, the Delaware Trustee, the Property Trustee and the
Administrative Trustees desire to amend and restate the Original Trust Agreement
in its entirety as set forth herein to provide for, among other things, (i) the
issuance of the Common Securities (as defined herein) by the Trust (as defined
herein) to the Depositor; (ii) the issuance and sale of the Trust Preferred
Securities as defined herein) by the Trust; (iii) the acquisition by the Trust
from the Depositor of all of the right, title and interest in the Debentures (as
defined herein); and (iv) the appointment of the Trustees;
NOW THEREFORE, in consideration of the agreements and obligations set forth
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each party, for the benefit of the
other parties and for the benefit of the Securityholders (as defined herein),
hereby amends and restates the Original Trust Agreement in its entirety and
agrees as follows:
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ARTICLE I
DEFINED TERMS
Section 101. Definitions.
-----------
For all purposes of this Trust Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article I have the meanings assigned to
them in this Article I and include the plural as well as the singular;
(b) all other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may
be, of this Trust Agreement; and
(d) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Trust Agreement as a whole and not to any
particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 608.
"Additional Amount" means, with respect to Trust Securities of a given
Liquidation Amount and/or a given period, the amount of additional interest
accrued on interest in arrears and paid by the Depositor on a Like Amount of
Debentures for such period.
"Additional Interest" has the meaning specified in Section 1.1 of the
Indenture.
"Administrative Trustee" means each of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, M.D., ▇▇▇▇▇ ▇.
▇▇▇▇▇▇, ▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., solely in his capacity as Administrative Trustee of
the Trust formed and continued hereunder and not in his or her individual
capacity, or such Administrative Trustee's successor in interest in such
capacity, or any successor trustee appointed as herein provided.
"Affiliate" means, with respect to a specified Person, (a) any Person
directly or indirectly owning, controlling or holding with power to vote 10% or
more of the outstanding voting securities or other ownership interests of the
specified Person, any Person 10% or more of whose outstanding voting securities
or other ownership interests are directly or indirectly owned, controlled or
held with power to vote by the specified Person; (b) any Person directly or
indirectly controlling, controlled by, or under common control with the
specified Person; (c) a partnership in which the specified Person is a general
partner; (d) any officer or director of the specified Person; and (e) if the
specified Person is an individual, any entity of which the specified Person is
an officer, director or general partner.
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"Authenticating Agent" means an authenticating agent with respect to the
Trust Preferred Securities appointed by the Property Trustee pursuant to Section
503.
"Bank" has the meaning specified in the Preamble to this Trust Agreement.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having jurisdiction in
the premises adjudging such Person a bankrupt or insolvent, or approving as
properly filed a petition seeking liquidation or reorganization of or in
respect of such Person under the United States Bankruptcy Code of 1978, as
amended, or any other similar applicable federal or state law, and the
continuance of any such decree or order unvacated and unstayed for a period
of 90 days; or the commencement of an involuntary case under the United
States Bankruptcy Code of 1978, as amended, in respect of such Person,
which shall continue undismissed for a period of 90 days or entry of an
order for relief in such case; or the entry of a decree or order of a
court having jurisdiction in the premises for the appointment on the ground
of insolvency or bankruptcy of a receiver, custodian, liquidator, trustee
or assignee in bankruptcy or insolvency of such Person or of its property,
or for the winding up or liquidation of its affairs, and such decree or
order shall have remained in force unvacated and unstayed for a period of
90 days; or
(b) the institution by such Person of proceedings to be adjudicated a
voluntary bankrupt, or the consent by such Person to the filing of a
bankruptcy proceeding against it, or the filing by such Person of a
petition or answer or consent seeking liquidation or reorganization under
the United States Bankruptcy Code of 1978, as amended, or other similar
applicable Federal or State law, or the consent by such Person to the
filing of any such petition or to the appointment on the ground of
insolvency or bankruptcy of a receiver or custodian or liquidator or
trustee or assignee in bankruptcy or insolvency of such Person or of its
property, or shall make a general assignment for the benefit of creditors.
"Bankruptcy Laws" has the meaning specified in Section 1009.
"Board Resolution" means a copy of a resolution certified by the Secretary
of the Depositor to have been duly adopted by the Depositor's Board of
Directors, or such committee of the Board of Directors or officers of the
Depositor to which authority to act on behalf of the Board of Directors has been
delegated, and to be in full force and effect on the date of such certification,
and delivered to the appropriate Trustee.
"Business Day" means a day other than a Saturday or Sunday, a day on which
banking institutions in New York, New York or Wilmington, Delaware are
authorized or required by law, executive order or regulation to remain closed,
or a day on which the Property Trustee's Corporate Trust Office or the Corporate
Trust Office of the Debenture Trustee is closed for business.
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"Certificate of Trust" means the certificate of trust filed with the
Secretary of State of the State of Delaware with respect to the Trust, as
amended or restated from time to time.
"Change in 1940 Act Law" shall have the meaning set forth in the definition
of "Investment Company Event."
"Closing Date" means the date of execution and delivery of this Trust
Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Security" means an undivided beneficial interest in the assets of
the Trust, having a Liquidation Amount of $10 and having the rights provided
therefor in this Trust Agreement, including the right to receive Distributions
and a Liquidation Distribution as provided herein.
"Common Securities Certificate" means a certificate evidencing ownership of
Common Securities, substantially in the form attached as Exhibit C.
"Company" means Paradigm Bancorporation, Inc.
"Corporate Trust Office" means the office at which, at any particular time,
the corporate trust business of the Property Trustee or the Debenture Trustee,
as the case may be, shall be principally administered, which office at the date
hereof, in each such case, is located at One ▇▇▇▇▇▇ Square, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇/▇/ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: Corporate Trust Administration.
"Debenture Event of Default" means an "Event of Default" as defined in
Section 7.1 of the Indenture.
"Debenture Redemption Date" means, with respect to any Debentures to be
redeemed under the Indenture, the date fixed for redemption under the Indenture.
"Debenture Tax Event" means a "Tax Event" as specified in Section 1.1 of
the Indenture.
"Debenture Trustee" means First Union Trust Company, National Association,
a national banking association with its principal place of business in the State
of Delaware and any successor thereto, acting not in its individual capacity but
solely as trustee under the Indenture
"Debentures" means the $5,285,000 aggregate principal amount of the
Depositor 10.375% Subordinated Debentures due 2029, issued pursuant to the
Indenture.
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"Definitive Trust Preferred Securities Certificates" means Trust Preferred
Securities Certificates issued in certified, fully registered form as provided
in Section 513.
"Delaware Bank" has the meaning specified in the Preamble to this Trust
Agreement.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the Delaware
Code, 12 Delaware Code Sections 3801 et seq. as it may be amended from time to
time.
"Delaware Trustee" means the commercial bank or trust company identified as
the "Delaware Trustee" in the Preamble to this Trust Agreement solely in its
capacity as Delaware Trustee of the Trust formed and continued hereunder and not
in its individual capacity, or its successor in interest in such capacity, or
any successor trustee appointed as herein provided.
"Depositor" has the meaning specified in the Preamble to this Trust
Agreement.
"Distribution Date" has the meaning specified in Section 401(a).
"Distributions" means amounts payable in respect of the Trust Securities as
provided in Section 401.
"Event of Default" means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) the occurrence of a Debenture Event of Default; or
(b) default by the Trust in the payment of any Distribution when it
becomes due and payable, and continuation of such default for a period of
30 days; or
(c) default by the Trust in the payment of any Redemption Price of
any Trust Security when it becomes due and payable; or
(d) default in the performance, or breach, in any material respect,
of any covenant or warranty of the Trustees in this Trust Agreement (other
than a covenant or warranty a default in the performance of which or the
breach of which is dealt with in clause (b) or (c), above) and continuation
of such default or breach for a period of 60 days after there has been
given, by registered or certified mail, to the defaulting Trustee or
Trustees by the Holders of at least 25% in aggregate liquidation preference
of the Outstanding Trust Preferred Securities a written notice specifying
such default or breach and requiring it to be remedied and stating that
such notice is a "Notice of Default" hereunder; or
(e) the occurrence of a Bankruptcy Event with respect to the Property
Trustee and the failure by the Depositor to appoint a successor Property
Trustee within 60 days thereof.
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"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Expense Agreement" means the Agreement as to Expenses and Liabilities
between the Depositor and the Trust, substantially in the form attached as
Exhibit C, as amended from time to time.
"Expiration Date" has the meaning specified in Section 901.
"Extended Interest Payment Period" has the meaning specified in Section 4.1
of the Indenture.
"Guarantee" means the Trust Preferred Securities Guarantee Agreement
executed and delivered by the Depositor and First Union Trust Company, National
Association, as trustee, contemporaneously with the execution and delivery of
this Trust Agreement, for the benefit of the holders of the Trust Preferred
Securities, as amended from time to time.
"Indenture" means the Indenture, dated as of December 1, 1999, between the
Depositor and the Debenture Trustee, as trustee, as amended or supplemented from
time to time.
"Investment Company Act," means the Investment Company Act of 1940, as
amended, as in effect at the date of execution of this instrument.
"Investment Company Event" means the receipt by the Trust and the Depositor
of an Opinion of Counsel, rendered by a law firm having a recognized national
tax and securities law practice, 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"), the Trust is or
shall 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 date of original issuance of the Trust Preferred Securities
under this Trust Agreement; provided, however, that the Depositor or the Trust
shall have requested and received such an Opinion of Counsel with regard to such
matters within a reasonable period of time after the Depositor or the Trust
shall have become aware of the possible occurrence of any such event.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security interest
or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of Trust Securities,
Trust Securities having an aggregate Liquidation Amount equal to the aggregate
principal amount of Debentures to be contemporaneously redeemed in accordance
with the Indenture and the proceeds of which shall be used to pay the Redemption
Price of such Trust Securities; and (b) with respect to a distribution of
Debentures to Holders of Trust Securities in connection with a termination or
liquidation of the Trust, Debentures having a principal amount equal to the
Liquidation Amount of the Trust Securities
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of the Holder to whom such Debentures are distributed. Each Debenture
distributed pursuant to clause (b) above shall carry with it accrued interest in
an amount equal to the accrued and unpaid interest then due on such Debentures.
"Liquidation Amount" means the stated amount of $10 per Trust Security.
"Liquidation Date" means the date on which Debentures are to be distributed
to Holders of Trust Securities in connection with a termination and liquidation
of the Trust pursuant to Section 904(a).
"Liquidation Distribution" has the meaning specified in Section 904(d).
"Officers' Certificate" means a certificate signed by the President or an
Executive Vice President and by the Treasurer or the Vice President--Finance or
the Secretary, of the Depositor, and delivered to the appropriate Trustee. One
of the officers signing an Officers' Certificate given pursuant to Section 816
shall be the principal executive, financial or accounting officer of the
Depositor. Any Officers' Certificate delivered with respect to compliance with a
condition or covenant provided for in this Trust Agreement shall include:
(a) a statement that each officer signing the Officers' Certificate
has read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Opinion of Counsel" means an opinion in writing of independent, outside
legal counsel for the Trust, the Property Trustee, the Delaware Trustee or the
Depositor, who shall be reasonably acceptable to the Property Trustee.
"Original Trust Agreement" has the meaning specified in the Recitals to
this Trust Agreement.
"Outstanding", when used with respect to Trust Preferred Securities, means,
as of the date of determination, all Trust Preferred Securities theretofore
executed and delivered under this Trust Agreement, except:
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(a) Trust Preferred Securities theretofore canceled by the Property
Trustee or delivered to the Property Trustee for cancellation;
(b) Trust Preferred Securities for whose payment or redemption money
in the necessary amount has been theretofore deposited with the Property
Trustee or any Paying Agent for the Holders of such Trust Preferred
Securities; provided that, if such Trust Preferred Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this
Trust Agreement; and
(c) Trust Preferred Securities which have been paid or in exchange
for or in lieu of which other Trust Preferred Securities have been executed
and delivered pursuant to Sections 504, 505, 511 and 513; provided,
however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Trust Preferred Securities have given
any request, demand, authorization, direction, notice, consent or waiver
hereunder, Trust Preferred Securities owned by the Depositor, any Trustee
or any Affiliate of the Depositor or any Trustee shall be disregarded and
deemed not to be Outstanding, except that (a) in determining whether any
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Trust Preferred
Securities that such Trustee knows to be so owned shall be so disregarded;
and (b) the foregoing shall not apply at any time when all of the
outstanding Trust Preferred Securities are owned by the Depositor, one or
more of the Trustees and/or any such Affiliate. Trust Preferred Securities
so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the
Administrative Trustees the pledgee's right so to the Depositor or any
Affiliate of the Depositor.
"Paying Agent" means any paying agent or co-paying agent appointed pursuant
to Section 509 and shall initially be the Bank.
"Payment Account" means a segregated non-interest-bearing corporate trust
account maintained by the Property Trustee with the Bank in its trust department
for the benefit of the Securityholders in which all amounts paid in respect of
the Debentures shall be held and from which the Property Trustee shall make
payments to the Securityholders in accordance with Sections 401 and 402.
"Person" means any individual, corporation, partnership, joint venture,
trust, limited liability company or corporation, unincorporated organization or
government or any agency or political subdivision thereof.
"Property Trustee" means the commercial bank or trust company identified as
the "Property Trustee," in the Preamble to this Trust Agreement solely in its
capacity as Property Trustee of the Trust heretofore formed and continued
hereunder and not in its individual capacity, or its successor in interest in
such capacity, or any successor property trustee appointed as herein provided.
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"Redemption Date" means, with respect to any Trust Security to be redeemed,
the date fixed for such redemption by or pursuant to this Trust Agreement;
provided that each Debenture Redemption Date and the stated maturity of the
Debentures shall be a Redemption Date for a Like Amount of Trust Securities.
"Redemption Price" means, with respect to any Trust Security, the
Liquidation Amount of such Trust Security, plus accumulated and unpaid
Distributions to the Redemption Date, plus the related amount of the premium, if
any, paid by the Depositor upon the concurrent redemption of a Like Amount of
Debentures, allocated on a pro rata basis (based on Liquidation Amounts) among
the Trust Securities.
"Relevant Trustee" shall have the meaning specified in Section 810.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 504.
"Securityholder" or "Holder" means a Person in whose name a Trust Security
or Trust Securities is registered in the Securities Register; any such Person is
a beneficial owner within the meaning of the Delaware Business Trust Act.
"Trust" means the Delaware business trust created and continued hereby and
identified on the cover page to this Trust Agreement.
"Trust Agreement" means this Amended and Restated Trust Agreement, as the
same may be modified, amended or supplemented in accordance with the applicable
provisions hereof, including all exhibits hereto, including, for all purposes of
this Trust Agreement and any such modification, amendment or supplement, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this Trust Agreement and any such modification, amendment or supplement,
respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended, as
in force at the date as of which this instrument was executed; provided,
however, that in the event the Trust Indenture Act of 1939, as amended, is
amended after such date, "Trust Indenture Act" means, to the extent required by
any such amendment, the Trust Indenture Act of 1939 as so amended.
"Trust Preferred Securities Certificate" means a certificate evidencing
ownership of Trust Preferred Securities, substantially in the form attached as
Exhibit D.
"Trust Preferred Security" means a preferred undivided beneficial interest
in the assets of the Trust, having a Liquidation Amount of $10 and having the
rights provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
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"Trust Property" means (a) the Debentures; (b) the rights of the Property
Trustee under the Guarantee; (c) any cash on deposit in, or owing to, the
Payment Account; and (d) all proceeds and rights in respect of the foregoing and
any other property and assets for the time being held or deemed to be held by
the Property Trustee pursuant to the trusts of this Trust Agreement.
"Trust Security" means any one of the Common Securities or the Trust
Preferred Securities.
"Trust Securities Certificate" means any one of the Common Securities
Certificates or the Trust Preferred Securities Certificates.
"Trustees" means, collectively, the Property Trustee, the Delaware Trustee
and the Administrative Trustees.
ARTICLE II
ESTABLISHMENT OF THE TRUST
Section 201. Name.
----
The Trust continued hereby shall be known as "Paradigm Capital Trust I," as
such name may be modified from time to time by the Administrative Trustees
following written notice to the Holders of Trust Securities and the other
Trustees, in which name the Trustees may engage in the transactions contemplated
hereby, make and execute contracts and other instruments on behalf of the Trust
and ▇▇▇ and be sued.
Section 202. Office of the Delaware Trustee; Principal Place of Business.
-----------------------------------------------------------
The address of the Delaware Trustee in the State of Delaware is c/o First
Union Trust Company, National Association, One ▇▇▇▇▇▇ Square, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇/▇▇/ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: Corporate Trust Administration,
or such other address in the State of Delaware as the Delaware Trustee may
designate by written notice to the Securityholders and the Depositor. The
principal executive office of the Trust is c/o Paradigm Bancorporation, Inc.,
▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇.
Section 203. Initial Contribution of Trust Property; Organizational
------------------------------------------------------
Expenses.
--------
The Trustees acknowledge receipt in trust from the Depositor in connection
with the Original Trust Agreement of the sum of $10, which constituted the
initial Trust Property. The Depositor shall pay organizational expenses of the
Trust as they arise or shall, upon request of any Trustee, promptly reimburse
such Trustee for any such expenses paid by such Trustee. The Depositor shall
make no claim upon the Trust Property for the payment of such expenses.
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Section 204. Issuance of the Trust Preferred Securities.
------------------------------------------
Contemporaneously with the execution and delivery of this Trust Agreement,
an Administrative Trustee, on behalf of the Trust, shall execute in accordance
with Section 502 and deliver Trust Preferred Securities Certificates, registered
in the name of Woodforest National Bank in an aggregate amount of 512,500 Trust
Preferred Securities having an aggregate Liquidation Amount of $5,125,000
against receipt of the aggregate purchase price of such Trust Preferred
Securities of $5,125,000, which amount such Administrative Trustee shall
promptly deliver to the Property Trustee.
Section 205. Issuance of the Common Securities; Subscription and Purchase
------------------------------------------------------------
of Debentures.
-------------
Contemporaneously with the execution and delivery of this Trust Agreement,
an Administrative Trustee, on behalf of the Trust, shall execute in accordance
with Section 502 and deliver to the Depositor, Common Securities Certificates,
registered in the name of the Depositor, in an aggregate amount of Common
Securities having an aggregate Liquidation Amount of $160,000 against payment by
the Depositor of such amount. Contemporaneously therewith, an Administrative
Trustee, on behalf of the Trust, shall subscribe to and purchase from the
Depositor Debentures, registered in the name of the Property Trustee on behalf
of the Trust and having an aggregate principal amount equal to $5,285,000, and,
in satisfaction of the purchase price for such Debentures, the Property Trustee,
on behalf of the Trust, shall deliver to the Depositor the sum of $5,285,000.
Section 206. Declaration of Trust.
--------------------
The exclusive purposes and functions of the Trust are (a) to issue and sell
Trust Securities and use the proceeds from such sale to acquire the Debentures;
and (b) to engage in those activities necessary, advisable or incidental
thereto. The Depositor hereby appoints the Trustees as trustees of the Trust, to
have all the rights, powers and duties to the extent set forth herein, and the
Trustees hereby accept such appointment. The Property Trustee hereby declares
that it shall hold the Trust Property in trust upon and subject to the
conditions set forth herein for the benefit of the Securityholders. The
Administrative Trustees shall have all rights, powers and duties set forth
herein and in accordance with applicable law with respect to accomplishing the
purposes of the Trust. The Delaware Trustee shall not be entitled to exercise
any powers, nor shall the Delaware Trustee have any of the duties and
responsibilities, of the Property Trustee or the Administrative Trustees set
forth herein. The Delaware Trustee shall be one of the Trustees of the Trust for
the sole and limited purpose of fulfilling the requirements of Section 3807 of
the Delaware Business Trust Act.
Section 207. Authorization to Enter into Certain Transactions.
------------------------------------------------
(a) The Trustees shall conduct the affairs of the Trust in
accordance with the terms of this Trust Agreement. Subject to the
limitations set forth in paragraph (b) of this Section 207 and Article
VIII, and in accordance with the following provisions (i) and (ii), the
Administrative Trustees shall have the authority to enter into all
transactions and
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agreements determined by the Administrative Trustees to be appropriate in
exercising the authority, express or implied, otherwise granted to the
Administrative Trustees under this Trust Agreement, and to perform all acts
in furtherance thereof, including without limitation, the acts set forth in
the following provision (i) and the Property Trustee shall have the
authority to act, each as set forth below:
(i) As among the Trustees, each Administrative Trustee, acting singly
or jointly, shall have the power and authority to act on behalf
of the Trust with respect to the following matters:
(A) the issuance and sale of the Trust Securities;
(B) to cause the Trust to enter into, and to execute, deliver
and perform on behalf of the Trust, the Expense Agreement
and such other agreements or documents as may be necessary
or desirable in connection with the purposes and function of
the Trust;
(C) assisting in the registration of the Trust Preferred
Securities under state securities or blue sky laws, if
required, and the qualification of this Trust Agreement as a
trust indenture under the Trust Indenture Act, if required;
(D) the sending of notices (other than notices of default) and
other information regarding the Trust Securities and the
Debentures to the Securityholders in accordance with this
Trust Agreement;
(E) the appointment of a Paying Agent, authenticating agent and
Securities Registrar in accordance with this Trust
Agreement;
(F) to the extent provided in this Trust Agreement, the winding
up of the affairs of and liquidation of the Trust and the
preparation, execution and filing of the certificate of
cancellation with the Secretary of State of the State of
Delaware;
(G) 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 Trust Preferred Securities or to enable the Trust to
effect the purposes for which the Trust was created; and
(H) the taking of any action incidental to the foregoing as the
Administrative Trustees may from time to time determine is
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necessary or advisable to give effect to the terms of this
Trust Agreement for the benefit of the Securityholders
(without consideration of the effect of any such action on
any particular Securityholder).
(ii) As among the Trustees, the Property Trustee shall have the power,
duty and authority to act on behalf of the Trust with respect to
the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Debentures;
(C) the collection of interest, principal and any other payments
made in respect of the Debentures in the Payment Account;
(D) the distribution of amounts owed to the Securityholders in
respect of the Trust Securities in accordance with the terms
of this Trust Agreement;
(E) the exercise of all of the rights, powers and privileges of
a holder of the Debentures;
(F) the sending of notices of default and other information
regarding the Trust Securities and the Debentures to the
Securityholders in accordance with this Trust Agreement;
(G) the distribution of the Trust Property in accordance with
the terms of this Trust Agreement;
(H) to the extent provided in this Trust Agreement, the winding
up of the affairs of and liquidation of the Trust;
(I) after an Event of Default, the taking of any action
incidental to the foregoing as the Property Trustee may from
time to time determine is necessary or advisable to give
effect to the terms of this Trust Agreement and protect and
conserve the Trust Property for the benefit of the
Securityholders (without consideration of the effect of any
such action on any particular Securityholder);
(J) registering transfers of the Trust Securities in accordance
with this Trust Agreement; and
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(K) except as otherwise provided in this Section 207(a)(ii), the
Property Trustee shall have none of the duties, liabilities,
powers or the authority of the Administrative Trustees set
forth in Section 207(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or
the Trustees acting on behalf of the Trust) shall not undertake any
business, activities or transaction except as expressly provided herein or
contemplated hereby. In particular, the Trustees shall not (i) acquire any
investments or engage in any activities not authorized by this Trust
Agreement; (ii) sell, assign, transfer, exchange, mortgage, pledge, set-off
or otherwise dispose of any of the Trust Property or interests therein,
including to Securityholders, except as expressly provided herein; (iii)
take any action that would cause the Trust to fail or cease to qualify as a
"grantor trust" for United States federal income tax purposes; (iv) incur
any indebtedness for borrowed money or issue any other debt; or (v) take or
consent to any action that would result in the placement of a Lien on any
of the Trust Property. The Administrative Trustees shall defend all claims
and demands of all Persons at any time claiming any Lien on any of the
Trust Property adverse to the interest of the Trust or the Securityholders
in their capacity as Securityholders.
(c) In connection with the issue and sale of the Trust Preferred
Securities, the Depositor shall have the right and responsibility to assist
the Trust with respect to, or effect on behalf of the Trust, the following
(and any actions taken by the Depositor in furtherance of the following
prior to the date of this Trust Agreement are hereby ratified and confirmed
in all respects):
(i) the determination of the states in which to take appropriate
action to qualify or, register for sale all or part of the Trust
Preferred Securities and to do any and all such acts, other than
actions which must be taken by or on behalf of the Trust, and advise
the Trustees of actions they must take on behalf of the Trust, and
prepare for execution and filing any documents to be executed and
filed by the Trust or on behalf of the Trust, as the Depositor deems
necessary or advisable in order to comply with the applicable laws of
any such States;
(ii) the taking of any other actions necessary or desirable to
carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Trustees are
authorized and directed to conduct the affairs of the Trust and to operate
the Trust so that the Trust shall not be deemed to be an "investment
company" required to be registered under the Investment Company Act, shall
be classified as a "grantor trust" and not as an association taxable as a
corporation for United States federal income tax purposes and so that the
Debentures shall be treated as indebtedness of the Depositor for United
States federal income tax purposes. In this connection, subject to Section
1002, the Depositor and the Trustees are authorized to take any action, not
inconsistent with applicable law or this Trust Agreement, that each of
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the Depositor and the Trustees determines in their discretion to be
necessary or desirable for such purposes.
Section 208. Assets of Trust.
---------------
The assets of the Trust shall consist of the Trust Property.
Section 209. Title to Trust Property.
-----------------------
Legal title to all Trust Property shall be vested at all times in the
Property Trustee (in its capacity as such) and shall be held and administered by
the Property Trustee for the benefit of the Securityholders in accordance with
this Trust Agreement.
ARTICLE III
PAYMENT ACCOUNT
Section 301. Payment Account.
---------------
(a) On or prior to the Closing Date, the Property Trustee shall
establish the Payment Account. The Property Trustee and any agent of the
Property Trustee shall have exclusive control and sole right of withdrawal
with respect to the Payment Account for the purpose of making deposits and
withdrawals from the Payment Account in accordance with this Trust
Agreement. All monies and other property deposited or held from time to
time in the Payment Account shall be held by the Property Trustee in the
Payment Account for the exclusive benefit of the Securityholders and for
distribution as herein provided, including (and subject to) any priority of
payments provided for herein.
(b) The Property Trustee shall deposit in the Payment Account,
promptly upon receipt, all payments of principal of or interest on, and any
other payments or proceeds with respect to, the Debentures. Amounts held in
the Payment Account shall not be invested by the Property Trustee pending
distribution thereof.
ARTICLE IV
DISTRIBUTIONS; REDEMPTION
Section 401. Distributions.
-------------
(a) Distributions on the Trust Securities shall be cumulative,
and shall accumulate whether or not there are funds of the Trust available
for the payment of Distributions. Distributions shall accumulate from
December 1, 1999, and, except during any Extended Interest Payment Period
with respect to the Debentures, shall be payable quarterly in arrears
-15-
on the last calendar day of March, June, September and December of each
year, commencing on March 31, 2000. If any date on which a Distribution is
otherwise payable on the Trust Securities is not a Business Day, then the
payment of such Distribution shall be made on the next succeeding day that
is a Business Day (and without any interest or other payment in respect of
any such delay) except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding
Business Day (and without any reduction of interest or any other payment in
respect of any such acceleration), in each case with the same force and
effect as if made on such date (each date on which distributions are
payable in accordance with this Section 401(a), a "Distribution Date").
(b) The Trust Securities represent undivided beneficial interests
in the Trust Property, and, as a practical matter, the Distributions on the
Trust Securities shall be payable at a rate of 10.375% per annum of the
Liquidation Amount of the Trust Securities. The amount of Distributions
payable for any full period shall be computed on the basis of a 360-day
year of twelve 30-day months. The amount of Distributions for any partial
period shall be computed on the basis of the number of days elapsed in a
360-day year of twelve 30-day months. During any Extended Interest Payment
Period with respect to the Debentures, Distributions on the Trust Preferred
Securities shall be deferred for a period equal to the Extended Interest
Payment Period. The amount of Distributions payable for any period shall
include the Additional Amounts, if any.
(c) Distributions on the Trust Securities shall be made by the
Property Trustee solely from the Payment Account and shall be payable on
each Distribution Date only to the extent that the Trust has funds on hand
and immediately available by 12:30 p.m. on each Distribution Date in the
Payment Account for the payment of such Distributions.
(d) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the record holders thereof as they
appear on the Securities Register for the Trust Securities on the relevant
record date, which shall be the Business Day immediately prior to the
relevant Distribution Date.
Section 402. Redemption.
----------
(a) On each Debenture Redemption Date and on the maturity of the
Debentures, the Trust shall be required to redeem a Like Amount of Trust
Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property Trustee
by first-class mail, postage prepaid, mailed not less than 30 nor more than
60 days prior to the Redemption Date to each Holder of Trust Securities to
be redeemed, at such Holder's address appearing in the Securities Register.
The Property Trustee shall have no responsibility for the accuracy of any
CUSIP number contained in such notice. All notices of redemption shall
state:
(i) the Redemption Date;
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(ii) the Redemption Price;
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust Securities are
to be redeemed, the identification and the aggregate
Liquidation Amount of the particular Trust Securities
to be redeemed;
(v) that, on the Redemption Date, the Redemption Price
shall become due and payable upon each such Trust
Security to be redeemed and that Distributions thereon
shall cease to accumulate on and after said date,
except as provided in Section 402(d); and
(vi) the place or places at which Trust Securities are to be
surrendered for the payment of the Redemption Price;
and
(c) The Trust Securities redeemed on each Redemption Date shall
be redeemed at the Redemption Price with the proceeds from the
contemporaneous redemption of Debentures. Redemptions of the Trust
Securities shall be made and the Redemption Price shall be payable on each
Redemption Date only to the extent that the Trust has immediately available
funds then on hand and available in the Payment Account for the payment of
such Redemption Price.
(d) If the Property Trustee gives a notice of redemption in
respect of any Trust Preferred Securities, then, by 12:00 noon, New York
City time, on the Redemption Date, subject to Section 402(c), the Property
Trustee, subject to Section 402(c), shall deposit with the Paying Agent
funds sufficient to pay the applicable Redemption Price and shall give the
Paying Agent irrevocable instructions and authority to pay the Redemption
Price to the record holders thereof upon surrender of their Trust Preferred
Securities Certificates. Notwithstanding the foregoing, Distributions
payable on or prior to the Redemption Date for any Trust Securities called
for redemption shall be payable to the Holders of such Trust Securities as
they appear on the Register for the Trust Securities on the relevant record
dates for the related Distribution Dates. If notice of redemption shall
have been given and funds deposited as required, then upon the date of such
deposit, (i) all rights of Securityholders holding Trust Securities so
called for redemption shall cease, except the right of such Securityholders
to receive the Redemption Price, (ii) such Securities shall cease to be
Outstanding, and (iii) any Trust Securities Certificates will be deemed to
represent Debentures having a principal amount equal to the stated
Liquidation Amount of the Trust Securities represented thereby and bearing
accrued and unpaid interest in an amount equal to the accumulated and
unpaid Distributions on such Trust Securities until such certificates are
presented to the Securities Registrar for transfer or reissuance. In the
event that any date on which any Redemption Price is payable is not a
Business Day, then payment of the Redemption Price payable on such date
shall be made on the next succeeding day that is a Business Day (and
without any interest or other payment in respect of any such delay) except
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that, if such Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day (and
without any reduction of interest or any other payment in respect of any
such acceleration), in each case with the same force and effect as if made
on such date. In the event that payment of the Redemption Price in respect
of any Trust Securities called for redemption is improperly withheld or
refused and not paid either by the Trust or by the Depositor pursuant to
the Guarantee, Distributions on such Trust Securities shall continue to
accumulate, at the then applicable rate, from the Redemption Date
originally established by the Trust for such Trust Securities to the date
such Redemption Price is actually paid, in which case the actual payment
date shall be the date fixed for redemption for purposes of calculating the
Redemption Price.
(e) Payment of the Redemption Price on the Trust Securities shall
be made to the record holders thereof as they appear on the Securities
Register for the Trust Securities on the relevant record date, which shall
be the date 15 days prior to the relevant Redemption Date.
(f) Subject to Section 403(a), if less than all the Outstanding
Trust Securities are to be redeemed on a Redemption Date, then the
aggregate Liquidation Amount of Trust Securities to be redeemed shall be
allocated on a pro rata basis (based on Liquidation Amounts) among the
Common Securities and the Trust Preferred Securities. The particular Trust
Preferred Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Property Trustee from the outstanding
Trust Preferred Securities not previously called for redemption, by such
method (including, without limitation, by lot) as the Property Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions (equal to $10 or an integral multiple of $10 in
excess thereof) of the Liquidation Amount of Trust Preferred Securities of
a denomination larger than $10. The Property Trustee shall promptly notify
the Securities Registrar in writing of the Trust Preferred Securities
selected for redemption and, in the case of any Trust Preferred Securities
selected for partial redemption, the Liquidation Amount thereof to be
redeemed. For all purposes of this Trust Agreement, unless the context
otherwise requires, all provisions relating to the redemption of Trust
Preferred Securities shall relate, in the case of any Trust Preferred
Securities redeemed or to be redeemed only in part, to the portion of the
Liquidation Amount of Trust Preferred Securities which has been or is to be
redeemed.
Section 403. Subordination of Common Securities.
----------------------------------
(a) Payment of Distributions (including Additional Amounts, if
applicable) on, and the Redemption Price of, the Trust Securities, as
applicable, shall be made, subject to Section 402(f), pro rata among the
Common Securities and the Trust Preferred Securities based on the
Liquidation Amount of the Trust Securities; provided, however, that if on
any Distribution Date or Redemption Date any Event of Default resulting
from a Debenture Event of Default shall have occurred and be continuing, no
payment of any Distribution (including Additional Amounts, if applicable)
on, or Redemption Price of, any Common Security, and no other payment on
account of the redemption, liquidation or other acquisition
-18-
of Common Securities, shall be made unless payment in full in cash of all
accumulated and unpaid Distributions (including Additional Amounts, if
applicable) on all Outstanding Trust Preferred Securities for all
Distribution periods terminating on or prior thereto, or in the case of
payment of the Redemption Price the full amount of such Redemption Price on
all Outstanding Trust Preferred Securities then called for redemption,
shall have been made or provided for, and all funds immediately available
to the Property Trustee shall first be applied to the payment in full in
cash of all Distributions (including Additional Amounts, if applicable) on,
or the Redemption Price of, Trust Preferred Securities then due and
payable.
(b) In the case of the occurrence of any Event of Default
resulting from a Debenture Event of Default, the record holder of Common
Securities, the Depositor, shall be deemed to have waived any right to act
with respect to any such Event of Default under this Trust Agreement until
the effect of all such Events of Default with respect to the Trust
Preferred Securities shall have been cured, waived or otherwise eliminated.
Until any such Event of Default under this Trust Agreement with respect to
the Trust Preferred Securities shall have been so cured, waived or
otherwise eliminated, the Property Trustee shall act solely on behalf of
the record holders of the Trust Preferred Securities and not the record
holder of the Common Securities, and only the Holders of the Trust
Preferred Securities shall have the right to direct the Property Trustee to
act on their behalf.
Section 404. Payment Procedures.
------------------
Payments of Distributions (including Additional Amounts, if applicable) in
respect of the Trust Preferred Securities shall be made by check mailed to the
address of the Person entitled thereto as such address shall appear on the
Securities Register or, if the Trust Preferred Securities are held by a Clearing
Agency, such Distributions shall be made to the Clearing Agency in immediately
available funds, which will credit the relevant accounts on the applicable
Distribution Dates. Payments in respect of the Common Securities shall be made
in such manner as shall be mutually agreed between the Property Trustee and the
Common Securityholder.
Section 405. Tax Returns and Reports.
-----------------------
The Administrative Trustees shall prepare (or cause to be prepared), at the
Depositor's expense, and file all United States federal, state and local tax and
information returns and reports required to be filed by or in respect of the
Trust. In this regard, the Administrative Trustees shall (a) prepare and file
(or cause to be prepared and filed) the appropriate Internal Revenue Service
forms required to be filed in respect of the Trust in each taxable year of the
Trust; and (b) prepare and furnish (or cause to be prepared and furnished) to
each Securityholder the appropriate Internal Revenue Service forms required to
be furnished to such Securityholder or the information required to be provided
on such form. The Administrative Trustees shall provide the Depositor with a
copy of all such returns and reports promptly after such filing or furnishing.
The Property Trustee shall comply with United States federal withholding and
backup withholding tax laws and information reporting requirements with respect
to any payments to Securityholders under the Trust Securities.
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Section 406. Payment of Taxes, Duties, etc. of the Trust.
-------------------------------------------
Upon receipt under the Debentures of Additional Interest (as defined in
Section 1.1 of the Indenture), the Property Trustee, at the direction of an
Administrative Trustee or the Depositor, shall promptly pay any taxes, duties or
governmental charges of whatsoever nature (other than withholding taxes) imposed
on the Trust by the United States or any other taxing authority.
Section 407. Payments Under Indenture.
------------------------
Any amount payable hereunder to any record holder of Trust Preferred
Securities shall be reduced by the amount of any corresponding payment such
Holder has directly received under the Indenture pursuant to Section 513(b) or
(c) hereof.
ARTICLE V
TRUST SECURITIES CERTIFICATES
Section 501. Initial Ownership.
-----------------
Upon the creation of the Trust and the contribution by the Depositor
pursuant to Section 203 and until the issuance of the Trust Securities, and at
any time during which no Trust Securities are outstanding, the Depositor shall
be the sole beneficial owner of the Trust.
Section 502. The Trust Securities Certificates.
---------------------------------
The Trust Preferred Securities Certificates shall be issued in minimum
denominations of $10 Liquidation Amount and integral multiples of $10 in excess
thereof, and the Common Securities Certificates shall be issued in denominations
of $10 Liquidation Amount and integral multiples thereof. The Trust Securities
Certificates shall be executed on behalf of the Trust by manual or facsimile
signature of at least one Administrative Trustee. Trust Securities Certificates
bearing the manual or facsimile signatures of individuals who were, at the time
when such signatures shall have been affixed, authorized to sign on behalf of
the Trust, shall be validly issued and entitled to the benefits of this Trust
Agreement, notwithstanding that such individuals or any of them shall have
ceased to be so authorized prior to the delivery of such Trust Securities
Certificates or did not hold such offices at the date of delivery of such Trust
Securities Certificates. A transferee of a Trust Securities Certificate shall
become a Securityholder, and shall be entitled to the rights and subject to the
obligations of a Securityholder hereunder, upon due registration of such Trust
Securities Certificate in such transferee's name pursuant to Sections 504, 511
and 513.
Section 503. Execution, Authentication and Delivery of Trust Securities
----------------------------------------------------------
Certificates.
------------
(a) On the Closing Date and on any date on which the underwriters
exercise their over-allotment option, as applicable (an "Option Closing
Date"), the Administrative Trustees
-20-
shall cause Trust Securities Certificates, in an aggregate Liquidation
Amount as provided in Sections 204 and 205, to be executed on behalf of the
Trust by at least one of the Administrative Trustees and delivered to or
upon the written order of the Depositor, signed by its Chief Executive
Officer, President, any Vice President or its Treasurer without further
corporate action by the Depositor, in authorized denominations.
(b) A Trust Securities Certificate shall not be valid until
authenticated by the manual signature of an authorized signatory of the
Property Trustee. The signature shall be conclusive evidence that the Trust
Securities Certificate has been authenticated under this Trust Agreement.
Each Trust Security Certificate shall be dated the date of its
authentication.
Upon the written order of the Trust signed by one of the Administrative
Trustees, the Property Trustee shall authenticate and make available for
delivery the Trust Securities Certificates.
The Property Trustee may appoint an Authenticating Agent acceptable to the
Trust to authenticate the Trust Securities. An Authenticating Agent may
authenticate the Trust Securities 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 Company or the Trust.
Section 504. Registration of Transfer and Exchange of Trust Preferred
--------------------------------------------------------
Securities Certificates.
-----------------------
(a) The Depositor shall keep or cause to be kept, at the office
or agency maintained pursuant to Section 508, a register or registers for
the purpose of registering Trust Securities Certificates and transfers and
exchanges of Trust Securities Certificates (herein referred to as the
"Securities Register") in which the registrar designated by the Depositor
(the "Securities Registrar"), subject to such reasonable regulations as it
may prescribe, shall provide for the registration of Trust Preferred
Securities Certificates and Common Securities Certificates (subject to
Section 510 in the case of the Common Securities Certificates) and
registration of transfers and exchanges of referred Securities Certificates
as herein provided. The Property Trustee shall be the initial Securities
Registrar.
(b) Upon surrender for registration of transfer of any Trust
Preferred Securities Certificate at the office or agency maintained
pursuant to Section 508, the Administrative Trustees or any one of them
shall execute and deliver, in the name of the designated transferee or
transferees, one or more new Trust Preferred Securities Certificates in
authorized denominations of a like aggregate Liquidation Amount dated the
date of execution by such Administrative Trustee or Trustees. The
Securities Registrar shall not be required to register the transfer of any
Trust Preferred Securities that have been called for redemption. At the
option of a record holder, Trust Preferred Securities Certificates may be
exchanged for other Trust Preferred Securities Certificates in authorized
denominations of the same class and of a like aggregate Liquidation Amount
upon surrender of the Trust
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Preferred Securities Certificates to be exchanged at the office or agency
maintained pursuant to Section 508.
(c) Every Trust Preferred Securities Certificate presented or
surrendered for registration of transfer or exchange shall be accompanied
by a written instrument of transfer in form satisfactory to the Property
Trustee and the Securities Registrar duly executed by the Holder or his
attorney duly authorized in writing. Each Trust Preferred Securities
Certificate surrendered for registration of transfer or exchange shall be
canceled and subsequently disposed of by the Property Trustee in accordance
with its customary practice. The Trust shall not be required to (i) issue,
register the transfer of, or exchange any Trust Preferred Securities during
a period beginning at the opening of business 15 calendar days before the
date of mailing of a notice of redemption of any Trust Preferred Securities
called for redemption and ending at the close of business on the day of
such mailing; or (ii) register the transfer of or exchange any Trust
Preferred Securities so selected for redemption, in whole or in part,
except the unredeemed portion of any such Trust Preferred Securities being
redeemed in part.
(d) No service charge shall be made for any registration of
transfer or exchange of Trust Preferred Securities Certificates but the
Securities Registrar may require payment of a sum sufficient to cover any
tax or governmental charge that may be imposed in connection with any
transfer or exchange of Trust Preferred Securities Certificates.
(e) Trust Preferred Securities may only be transferred, in whole
or in part, in accordance with the terms and conditions set forth in this
Trust Agreement. Any transfer or purported transfer of any Trust Preferred
Security not made in accordance with this Trust Agreement shall be null and
void. A Trust Preferred Security may be transferred, in whole or in part,
to a Person who takes delivery in the form of another Trust Preferred
Security as provided in Section 504(a).
Section 505. Mutilated, Destroyed, Lost or Stolen Trust Securities
-----------------------------------------------------
Certificates.
------------
If (a) any mutilated Trust Securities certificate shall be surrendered to
the Securities Registrar, or if the Securities Registrar shall receive evidence
to its satisfaction of the destruction, loss or theft of any Trust Securities
Certificate; and (b) there shall be delivered to the Securities Registrar and
the Administrative Trustees such security or indemnity as may be required by
them to save each of them harmless, then in the absence of notice that such
Trust Securities Certificate shall have been acquired by a bona fide purchaser,
the Administrative Trustees, or any one of them, on behalf of the Trust shall
execute and make available for delivery, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Trust Securities Certificate, a new Trust
Securities Certificate of like class, tenor and denomination. In connection with
the issuance of any new Trust Securities Certificate under this Section 505, the
Administrative Trustees or the Securities Registrar may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection therewith. Any duplicate Trust Securities Certificate issued
pursuant to this Section 505 shall constitute conclusive evidence of an
undivided beneficial interest in the assets
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of the Trust, as if originally issued, whether or not the lost, stolen or
destroyed Trust Securities Certificate shall be found at any time.
Section 506. Persons Deemed Securityholders.
------------------------------
The Trustees, the Paying Agent and the Securities Registrar shall treat the
Person in whose name any Trust Securities Certificate shall be registered in the
Securities Register as the owner of such Trust Securities Certificate for the
purpose of receiving Distributions and for all other purposes whatsoever, and
neither the Trustees nor the Securities Registrar shall be bound by any notice
to the contrary.
Section 507. Access to List of Securityholders' Names and Addresses.
------------------------------------------------------
At any time when the Property Trustee is not also acting as the Securities
Registrar, the Administrative Trustees or the Depositor shall furnish or cause
to be furnished to the Property Trustee (a) within five Business Days of each
record date, a list, in such form as the Property Trustee may reasonably
require, of the names and addresses of the Securityholders as of the most recent
record date; and (b) promptly after receipt by any Administrative Trustee or the
Depositor of a request therefor from the Property Trustee in order to enable the
Property Trustee to discharge its obligations under this Trust Agreement, in
each case to the extent such information is in the possession or control of the
Administrative Trustees or the Depositor and is not identical to a previously
supplied list or has not otherwise been received by the Property Trustee in its
capacity as Securities Registrar. The rights of Securityholders to communicate
with other Securityholders with respect to their rights under this Trust
Agreement or under the Trust Securities, and the corresponding rights of the
Trustee shall be as provided in the Trust Indenture Act. Each Holder, by
receiving and holding a Trust Securities Certificate, and each owner shall be
deemed to have agreed not to hold the Depositor, the Property Trustee or the
Administrative Trustees accountable by reason of the disclosure of its name and
address, regardless of the source from which such information was derived.
Section 508. Maintenance of Office or Agency.
-------------------------------
The Administrative Trustees shall maintain, or cause to be maintained, in
The City of New York, New York or Wilmington, Delaware or other location
designated by the Administrative Trustees, an office or offices or agency or
agencies where Trust Preferred Securities Certificates may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Trustees in respect of the Trust Securities Certificates may be served. The
Administrative Trustees initially designate the Corporate Trust Office of the
Property Trustee, First Union Trust Company, National Association, as the
principal corporate trust office for such purposes. The Administrative Trustees
shall give prompt written notice to the Depositor and to the Securityholders of
any change in the location of the Securities Register or any such office or
agency.
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Section 509. Appointment of Paying Agent.
---------------------------
The Paying Agent shall make Distributions to Securityholders from the
Payment Account and shall report the amounts of such Distributions to the
Property Trustee and the Administrative Trustees. Any Paying Agent shall have
the revocable power to withdraw funds from the Payment Account for the purpose
of making the Distributions referred to above. The Administrative Trustees may
revoke such power and remove the Paying Agent if such Trustees determine in
their sole discretion that the Paying Agent shall have failed to perform its
obligations under this Trust Agreement in any material respect. The Paying Agent
shall initially be the Property Trustee, and any co-paying agent chosen by the
Property Trustee, and acceptable to the Administrative Trustees and the
Depositor. Any Person acting as Paying Agent shall be permitted to resign as
Paying Agent upon 30 days written notice to the Administrative Trustees, the
Property Trustee and the Depositor. In the event that the Property Trustee shall
no longer be the Paying Agent or a successor Paying Agent shall resign or its
authority to act be revoked, the Administrative Trustees shall appoint a
successor that is acceptable to the Property Trustee and the Depositor to act as
Paying Agent (which shall be a bank or trust company). The Administrative
Trustees shall cause such successor Paying Agent or any additional Paying Agent
appointed by the Administrative Trustees to execute and deliver to the Trustees
an instrument in which such successor Paying Agent or additional Paying Agent
shall agree with the Trustees that as Paying Agent, such successor Paying Agent
or additional Paying Agent shall hold all sums, if any, held by it for payment
to the Securityholders in trust for the benefit of the Securityholders entitled
thereto until such sums shall be paid to such Securityholders. The Paying Agent
shall return all unclaimed funds to the Property Trustee and, upon removal of a
Paying Agent, such Paying Agent shall also return all funds in its possession to
the Property Trustee. The provisions of Sections 801, 803 and 806 shall apply to
the Property Trustee also in its role as Paying Agent, for so long as the
Property Trustee shall act as Paying Agent and, to the extent applicable, to any
other paying agent appointed hereunder. Any reference in this Agreement to the
Paying Agent shall include any co-paying agent unless the context requires
otherwise.
Section 510. Ownership of Common Securities by Depositor.
-------------------------------------------
On the Closing Date, the Depositor shall acquire and retain beneficial and
record ownership of the Common Securities. To the fullest extent permitted by
law, any attempted transfer of the Common Securities (other than a transfer in
connection with a merger or consolidation of the Depositor into another
corporation pursuant to Section 12.1 of the Indenture) shall be void. The
Administrative Trustees shall cause each Common Securities Certificate issued to
the Depositor to contain a legend stating "THIS CERTIFICATE IS NOT
TRANSFERABLE."
Section 511. Trust Securities Certificates.
-----------------------------
(a) A single Trust Preferred Securities Certificate representing
the Trust Preferred Securities shall be issued to Woodforest National Bank
in the form of a definitive Trust Preferred Securities Certificate.
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(b) A single Common Securities Certificate representing the
Common Securities shall be issued to the Depositor in the form of a
definitive Common Securities Certificate.
Section 512. Reserved.
--------
Section 513. Rights of Securityholders.
-------------------------
(a) The legal title to the Trust Property is vested exclusively
in the Property Trustee (in its capacity as such) in accordance with
Section 209, and the Securityholders shall not have any right or title
therein other than the undivided beneficial interest in the assets of the
Trust conferred by their Trust Securities and they shall have no right to
call for any partition or division of property, profits or rights of the
Trust except as described below. The Trust Securities shall be personal
property giving only the rights specifically set forth therein and in this
Trust Agreement. The Trust Securities shall have no preemptive or similar
rights. When issued and delivered to Holders of the Trust Preferred
Securities against payment of the purchase price therefor, the Trust
Preferred Securities shall be fully paid and nonassessable interests in the
Trust. The Holders of the Trust Preferred Securities, in their capacities
as such, shall be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit organized under
the General Corporation Law of the State of Delaware.
(b) For so long as any Trust Preferred Securities remain
Outstanding, if, upon a Debenture Event of Default, the Debenture Trustee
fails or the holders of not less than 25% in principal amount of the
outstanding Debentures fail to declare the principal of all of the
Debentures to be immediately due and payable, the Holders of at least 25%
in Liquidation Amount of the Trust Preferred Securities then Outstanding
shall have such right by a notice in writing to the Depositor and the
Debenture Trustee; and upon any such declaration such principal amount of
and the accrued interest on all of the Debentures shall become immediately
due and payable, provided that the payment of principal and interest on
such Debentures shall remain subordinated to the extent provided in the
Indenture.
(c) For so long as any Trust Preferred Securities remain
outstanding, upon a Debenture Event of Default arising from the failure to
pay interest or principal on the Debentures, the Holders of any Trust
Preferred Securities then Outstanding shall, to the fullest extent
permitted by law, have the right to directly institute proceedings for
enforcement of payment to such Holders of principal of or interest on the
Debentures having a principal amount equal to the Liquidation Amount of the
Trust Preferred Securities of such Holders.
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ARTICLE VI
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
Section 601. Limitations on Voting Rights.
----------------------------
(a) Except as provided in this Section 601, in Sections 810 and
1002 and in the Indenture and as otherwise required by law, no record
Holder of Trust Preferred Securities shall have any right to vote or in any
manner otherwise control the administration, operation and management of
the Trust or the obligations of the parties hereto, nor shall anything
herein set forth, or contained in the terms of the Trust Securities
Certificates, be construed so as to constitute the Securityholders from
time to time as partners or members of an association.
(b) So long as any Debentures are held by the Property Trustee on
behalf of the Trust, the Trustees shall not (i) direct the time, method and
place of conducting any proceeding for any remedy available to the
Debenture Trustee, or executing any trust or power conferred on the
Debenture Trustee with respect to such Debentures; (ii) waive any past
default which is waivable under Article VII of the Indenture; (iii)
exercise any right to rescind or annul a declaration that the principal of
all the Debentures shall be due and payable; or (iv) consent to any
amendment, modification or termination of the Indenture or the Debentures,
where such consent shall be required, without, in each case, obtaining the
prior approval of the Holders of at least a majority in Liquidation Amount
of all Outstanding Trust Preferred Securities; provided, however, that
where a consent under the Indenture would require the consent of each
Holder of Outstanding Debentures affected thereby, no such consent shall be
given by the Property Trustee without the prior written consent of each
holder of Trust Preferred Securities. The Trustees shall not revoke any
action previously authorized or approved by a vote of the Holders of the
Outstanding Trust Preferred Securities, except by a subsequent vote of the
Holders of the Outstanding Trust Preferred Securities. The Property Trustee
shall notify each Holder of the Outstanding Trust Preferred Securities of
any notice of default received from the Debenture Trustee with respect to
the Debentures. In addition to obtaining the foregoing approvals of the
Holders of the Trust Preferred Securities, prior to taking any of the
foregoing actions, the Trustees shall, at the expense of the Depositor,
obtain an Opinion of Counsel experienced in such matters to the effect that
the Trust shall continue to be classified as a grantor trust and not as an
association taxable as a corporation for United States federal income tax
purposes on account of such action.
(c) If any proposed amendment to the Trust Agreement provides
for, or the Trustees otherwise propose to effect, (i) any action that would
adversely affect in any material respect the powers, preferences or special
rights of the Trust Preferred Securities, whether by way of amendment to
the Trust Agreement or otherwise; or (ii) the dissolution, winding-up or
termination of the Trust, other than pursuant to the terms of this Trust
Agreement, then the Holders of Outstanding Trust Preferred Securities as a
class shall be
-26-
entitled to vote on such amendment or proposal and such amendment or
proposal shall not be effective except with the approval of the Holders of
at least a majority in Liquidation Amount of the Outstanding Trust
Preferred Securities. No amendment to this Trust Agreement may be made if,
as a result of such amendment, the Trust would cease to be classified as a
grantor trust or would be classified as an association taxable as a
corporation for United States federal income tax purposes.
Section 602. Notice of Meetings.
------------------
Notice of all meetings of the Trust Preferred Securityholders, stating the
time, place and purpose of the meeting, shall be given by the Property Trustee
pursuant to Section 1008 to each Trust Preferred Securityholder of record, at
his registered address, at least 15 days and not more than 90 days before the
meeting. At any such meeting, any business properly before the meeting may be so
considered whether or not stated in the notice of the meeting. Any adjourned
meeting may be held as adjourned without further notice.
Section 603. Meetings of Trust Preferred Securityholders.
-------------------------------------------
(a) No annual meeting of Securityholders is required to be held.
The Administrative Trustees, however, shall call a meeting of
Securityholders to vote on any matter in respect of which Trust Preferred
Securityholders are entitled to vote upon the written request of the Trust
Preferred Securityholders of 25% of the Outstanding Trust Preferred
Securities (based upon their aggregate Liquidation Amount) and the
Administrative Trustees or the Property Trustee may, at any time in their
discretion, call a meeting of Trust Preferred Securityholders to vote on
any matters as to which the Trust Preferred Securityholders are entitled to
vote.
(b) Trust Preferred Securityholders of record of 50% of the
Outstanding Trust Preferred Securities (based upon their aggregate
Liquidation Amount), present in person or by proxy, shall constitute a
quorum at any meeting of Securityholders.
(c) If a quorum is present at a meeting, an affirmative vote by
the Trust Preferred Securityholders of record present, in person or by
proxy, holding more than a majority of the Trust Preferred Securities
(based upon their aggregate Liquidation Amount) held by the Trust Preferred
Securityholders of record present, either in person or by proxy, at such
meeting shall constitute the action of the Securityholders, unless this
Trust Agreement requires a greater number of affirmative votes.
Section 604. Voting Rights.
-------------
Securityholders shall be entitled to one vote for each $10 of Liquidation
Amount represented by their Trust Securities (with any fractional multiple
thereof rounded up or down as the case may be to the closest integral multiple)
in respect of any matter as to which such Securityholders are entitled to vote.
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Section 605. Proxies, etc.
------------
At any meeting of Securityholders, any Securityholder entitled to vote
thereat may vote by proxy, provided that no proxy, shall be voted at any meeting
unless it shall have been placed on file with the Administrative Trustees, or
with such other officer or agent of the Trust as the Administrative Trustees may
direct, for verification prior to the time at which such vote shall be taken.
Only Holders of record shall be entitled to vote. When Trust Securities are held
jointly by several persons, any one of them may vote at any meeting in person or
by proxy in respect of such Trust Securities, but if more than one of them shall
be present at such meeting in person or by proxy, and such joint owners or their
proxies so present disagree as to any vote to be cast, such vote shall not be
received in respect of such Trust Securities. A proxy purporting to be executed
by or on behalf of a Securityholder shall be deemed valid unless challenged at
or prior to its exercise, and, the burden of proving invalidity shall rest on
the challenger. No proxy shall be valid more than three years after its date of
execution.
Section 606. Securityholder Action by Written Consent.
----------------------------------------
Any action which may be taken by Securityholders at a meeting may be taken
without a meeting if Securityholders holding more than a majority of all
outstanding Trust Securities (based upon their aggregate Liquidation Amount)
entitled to vote in respect of such action (or such larger proportion thereof as
shall be required by any express provision of this Trust Agreement) shall
consent to the action in writing (based upon their aggregate Liquidation
Amount).
Section 607. Record Date for Voting and Other Purposes.
-----------------------------------------
For the purposes of determining the Securityholders who are entitled to
notice of and to vote at any meeting or by written consent, or to participate in
any Distribution on the Trust Securities in respect of which a record date is
not otherwise provided for in this Trust Agreement, or for the purpose of any
other action, the Administrative Trustees or the Property Trustee may from time
to time fix a date, not more than 90 days prior to the date of any meeting of
Securityholders or the payment of Distribution or other action, as the case may
be, as a record date for the determination of the identity of the
Securityholders of record for such purposes.
Section 608. Acts of Securityholders.
-----------------------
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Trust
Agreement to be given, made or taken by Securityholders may be embodied in
and evidenced by one or more instruments of substantially similar tenor
signed by such Securityholders or owners in person or by an agent duly
appointed in writing; and, except as otherwise expressly provided herein,
such action shall become effective when such instrument or instruments are
delivered to an Administrative Trustee. Such instrument or instruments (and
the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Securityholders signing such instrument or
instruments. Proof of execution of any such instrument or of a
-28-
writing appointing any such agent shall be sufficient for any purpose of
this Trust Agreement and (subject to Section 801) conclusive in favor of
the Trustees, if made in the manner provided in this Section 608.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer acting in a capacity
other than his individual capacity, such certificate or affidavit shall
also constitute sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which any
Trustee receiving the same deems sufficient.
(c) The ownership of Trust Preferred Securities shall be proved
by the Securities Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Securityholder of any Trust Security
shall bind every future Securityholder of the same Trust Security and the
Securityholder of every Trust Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustees or the Trust
in reliance thereon, whether or not notation of such action is made upon
such Trust Security.
(e) Without limiting the foregoing, a Securityholder entitled
hereunder to take any action hereunder with regard to any particular Trust
Security may do so with regard to all or any part of the Liquidation Amount
of such Trust Security or by one or more duly appointed agents each of
which may do so pursuant to such appointment with regard to all or any part
of such liquidation amount.
(f) A Securityholder may institute a legal proceeding directly
against the Depositor under the Guarantee to enforce its rights under the
Guarantee without first instituting a legal proceeding against the
Guarantee Trustee (as defined in the Guarantee), the Trust or any Person.
Section 609. Inspection of Records.
---------------------
Upon reasonable notice to the Administrative Trustees and the Property
Trustee, the records of the Trust shall be open to inspection at the principal
executive office of the Trust (as indicated in Section 202) by record holders of
the Trust Securities during normal business hours for any purpose reasonably
related to such record holder's interest as a record holder.
-29-
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
Section 701. Representations and Warranties of the Bank and the Property
-----------------------------------------------------------
Trustee.
-------
The Bank and the Property Trustee, each severally on behalf of and as to
itself, as of the date hereof, and each Successor Property Trustee at the time
of the Successor Property Trustee's acceptance of its appointment as Property
Trustee hereunder (in the case of a Successor Property Trustee, the term "Bank"
as used herein shall be deemed to refer to such Successor Property Trustee in
its separate corporate capacity), hereby represents and warrants (as applicable)
for the benefit of the Depositor and the Securityholders that:
(a) the Bank is a national banking association with its principal
place of business in the State of Delaware or, with respect to a Successor
Property Trustee, a state chartered bank and trust company; duly organized,
validly existing and in good standing under the laws of the State of
Delaware;
(b) the Bank has full corporate power, authority and legal right
to execute, deliver and perform its obligations under this Trust Agreement
and has taken all necessary action to authorize the execution, delivery and
performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed and
delivered by the Property Trustee and constitutes the valid and legally
binding agreement of the Property Trustee enforceable against it in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors, rights and to general
equity principles;
(d) the execution, delivery and performance by the Property
Trustee of this Trust Agreement has been duly authorized by all necessary
corporate or other action on the part of the Property Trustee and does not
require any approval of stockholders of the Bank and such execution,
delivery and performance shall not (i) violate the Bank's charter or by-
laws; (ii) violate any provision of, or constitute, with or without notice
or lapse of time, a default under, or result in the creation or imposition
of, any Lien on any properties included in the Trust Property pursuant to
the provisions of, any indenture, mortgage, credit agreement, license or
other agreement or instrument to which the Property Trustee or the Bank is
a party or by which it is bound; or (iii) violate any law, governmental
rule or regulation of the United States or the State of Delaware, as the
case may be, governing the banking or trust powers of the Bank or the
Property Trustee (as appropriate in context) or any order, judgment or
decree applicable to the Property Trustee or the Bank;
(e) neither the authorization, execution or delivery by the
Property Trustee of this Trust Agreement nor the consummation of any of the
transactions by the Property Trustee contemplated herein or therein
requires the consent or approval of, the giving of notice to,
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the registration with or the taking of any other action with respect to any
governmental authority or agency under any existing federal law governing
the banking or trust powers of the Bank or the Property Trustee, as the
case may be, under the laws of the United States or the State of Delaware,
other than the filing of a Certificate of Trust with the Secretary of State
of the State of Delaware;
(f) there are no proceedings pending or, to the best of the
Property Trustee's knowledge, threatened against or affecting the Bank or
the Property Trustee in any court or before any governmental authority,
agency or arbitration board or tribunal which, individually or in the
aggregate, would materially and adversely affect the Trust or would
question the right, power and authority of the Property Trustee to enter
into or perform its obligations as one of the Trustees under this Trust
Agreement; and
(g) the Property Trustee is a Person eligible pursuant to the
Trust Indenture Act to act as such and has a combined capital and surplus
of at least $50,000,000.
Section 702. Representations and Warranties of the Delaware Bank and the
-----------------------------------------------------------
Delaware Trustee.
----------------
The Delaware Bank and the Delaware Trustee, each severally on behalf of and
as to itself, as of the date hereof, and each Successor Delaware Trustee at the
time of the Successor Delaware Trustee's acceptance of appointment as Delaware
Trustee hereunder (the term "Delaware Bank" being used to refer to such
Successor Delaware Trustee in its separate corporate capacity), hereby
represents and warrants (as applicable) for the benefit of the Depositor and the
Securityholders that:
(a) the Delaware Bank is a national banking association with its
principal place of business in the State of Delaware, or, if a Successor
Delaware Trustee, is a Delaware banking corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware;
(b) the Delaware Bank has full corporate power, authority and
legal right to execute, deliver and perform its obligations under this
Trust Agreement and has taken all necessary action to authorize the
execution, delivery and performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed and
delivered by the Delaware Trustee and constitutes the valid and legally
binding agreement of the Delaware Trustee enforceable against it in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors, rights and to general
equity principles;
(d) the execution, delivery and performance by the Delaware
Trustee of this Trust Agreement has been duly authorized by all necessary
corporate or other action on the part of the Delaware Trustee and does not
require any approval of stockholders of the Delaware
-31-
Bank and such execution, delivery and performance shall not (i) violate the
Delaware Bank's charter or by-laws; (ii) violate any provision of, or
constitute, with or without notice or lapse of time, a default under, or
result in the creation or imposition of, any Lien on any properties
included in the Trust Property pursuant to the provisions of, any
indenture, mortgage, credit agreement, license or other agreement or
instrument to which the Delaware Bank or the Delaware Trustee is a party or
by which it is bound; or (iii) violate any law, governmental rule or
regulation of the United States or the State of Delaware, as the case may
be, governing the banking or trust powers of the Delaware Bank or the
Delaware Trustee (as appropriate in context) or any order, judgment or
decree applicable to the Delaware Bank or the Delaware Trustee;
(e) neither the authorization, execution or delivery by the
Delaware Trustee of this Trust Agreement nor the consummation of any of the
transactions by the Delaware Trustee contemplated herein or therein
requires the consent or approval of, the giving of notice to, the
registration with or the taking of any other action with respect to any
governmental authority or agency under any existing federal law governing
the banking or trust powers of the Delaware Bank or the Delaware Trustee,
as the case may be, under the laws of the United States or the State of
Delaware, other than the filing of the Certificate of Trust with the
Secretary of State of the State of Delaware; and
(f) there are no proceedings pending or, to the best of the
Delaware Trustee's knowledge, threatened against or affecting the Delaware
Bank or the Delaware Trustee in any court or before any governmental
authority, agency or arbitration board or tribunal which, individually or
in the aggregate, would materially and adversely affect the Trust or would
question the right, power and authority of the Delaware Trustee to enter
into or perform its obligations as one of the Trustees under this Trust
Agreement.
Section 703. Representations and Warranties of Depositor.
-------------------------------------------
The Depositor hereby represents and warrants for the benefit of the
Securityholders that:
(a) the Trust Securities Certificates issued on the Closing Date
on behalf of the Trust have been duly authorized and, shall have been, duly
and validly executed, issued and delivered by the Administrative Trustees
pursuant to the terms and provisions of, and in accordance with the
requirements of, this Trust Agreement and the Securityholders shall be, as
of such date, entitled to the benefits of this Trust Agreement; and
(b) there are no taxes, fees or other governmental charges
payable by the Trust (or the Trustees on behalf of the Trust) under the
laws of the State of Delaware or any political subdivision thereof in
connection with the execution, delivery and performance by the Bank, the
Property Trustee or the Delaware Trustee, as the case may be, of this Trust
Agreement.
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ARTICLE VIII
TRUSTEES
Section 801. Certain Duties and Responsibilities.
-----------------------------------
(a) The duties and responsibilities of the Trustees shall be as
provided by this Trust Agreement and, in the case of the Property Trustee,
by the Trust Indenture Act. Notwithstanding the foregoing, no provision of
this Trust Agreement shall require the Trustees to expend or risk their own
funds or otherwise incur any financial liability in the performance of any
of their duties hereunder, or in the exercise of any of their rights or
powers, if they shall have reasonable grounds for believing that repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it. No Administrative Trustee nor the Delaware
Trustee shall be liable for its act or omissions hereunder except as a
result of its own gross negligence or willful misconduct. The Property
Trustee's liability shall be determined under the Trust Indenture Act.
Whether or not therein expressly so provided, every provision of this Trust
Agreement relating to the conduct or affecting the liability of or
affording protection to the Trustees shall be subject to the provisions of
this Section 801. To the extent that, at law or in equity, the Delaware
Trustee or an Administrative Trustee has duties (including fiduciary
duties) and liabilities relating thereto to the Trust or to the
Securityholders, the Delaware Trustee or such Administrative Trustee shall
not be liable to the Trust or to any Securityholder for such Trustee's good
faith reliance on the provisions of this Trust Agreement. The provisions of
this Trust Agreement, to the extent that they restrict the duties and
liabilities of the Delaware Trustee or the Administrative Trustees
otherwise existing at law or in equity, are agreed by the Depositor and the
Securityholders to replace such other duties and liabilities of the
Delaware Trustee or the Administrative Trustees, as the case may be.
(b) All payments made by the Property Trustee or a Paying Agent
in respect of the Trust Securities shall be made only from the revenue and
proceeds from the Trust Property and only to the extent that there shall be
sufficient revenue or proceeds from the Trust Property to enable the
Property Trustee or a Paying Agent to make payments in accordance with the
terms hereof. Each Securityholder, by its acceptance of a Trust Security,
agrees that it shall look solely to the revenue and proceeds from the Trust
Property to the extent legally available for distribution to it as herein
provided and that the Trustees are not personally liable to it for any
amount distributable in respect of any Trust Security or for any other
liability in respect of any Trust Security. This Section 801(b) does not
limit the liability of the Trustees expressly set forth elsewhere in this
Trust Agreement or, in the case of the Property Trustee, in the Trust
Indenture Act.
(c) 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:
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(i) the Property Trustee shall not be liable for any error
of judgment made in good faith by an authorized officer of the
Property Trustee, unless it shall be proved that the Property
Trustee was negligent in ascertaining the pertinent facts;
(ii) the Property Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a
majority in Liquidation Amount of the Trust 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;
(iii) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Debentures
and the Payment Account shall be to deal with such Property in a
similar manner as the Property Trustee deals with similar property
for its own account, subject to the protections and limitations on
liability afforded to the Property Trustee under this Trust
Agreement and the Trust Indenture Act;
(iv) the Property Trustee shall not be liable for any
interest on any money received by it except as it may otherwise
agree with the Depositor and money held by the Property Trustee
need not be segregated from other funds held by it except in
relation to the Payment Account maintained by the Property Trustee
pursuant to Section 301 and except to the extent otherwise
required by law; and
(d) the Property Trustee shall not be responsible for monitoring
the compliance by the Administrative Trustees or the Depositor with their
respective duties under this Trust Agreement, nor shall the Property
Trustee be liable for the negligence, default or misconduct of the
Administrative Trustees or the Depositor.
Section 802. Certain Notices.
---------------
(a) Within five Business Days after the occurrence of any Event
of Default actually known to the Property Trustee, the Property Trustee
shall transmit, in the manner and to the extent provided in Section 1008,
notice of such Event of Default to the Securityholders, the Administrative
Trustees and the Depositor, unless such Event of Default shall have been
cured or waived. For purposes of this Section 802 the term "Event of
Default" means any event that is, or after notice or lapse of time or both
would become, an Event of Default.
(b) The Administrative Trustees shall transmit, to the
Securityholders in the manner and to the extent provided in Section 1008,
notice of the Depositor's election to begin or further extend an Extended
Interest Payment Period on the Debentures (unless such election shall have
been revoked) within the time specified for transmitting such notice to the
holders of the Debentures pursuant to the Indenture as originally executed.
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Section 803. Certain Rights of Property Trustee.
----------------------------------
Subject to the provisions of Section 801:
(a) the Property Trustee may rely and shall be protected in
acting or refraining from acting in good faith upon any resolution, Opinion
of Counsel, certificate, written representation of a Holder or transferee,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(b) if (i) in performing its duties under this Trust Agreement
the Property Trustee is required to decide between alternative courses of
action; or (ii) in construing any of the provisions of this Trust Agreement
the Property Trustee finds the same ambiguous or inconsistent with other
provisions contained herein; or (iii) the Property Trustee is unsure of the
application of any provision of this Trust Agreement, then, except as to
any matter as to which the Trust Preferred Securityholders are entitled to
vote under the terms of this Trust Agreement, the Property Trustee shall
deliver a notice to the Depositor requesting written instructions of the
Depositor as to the course of action to be taken and the Property Trustee
shall take such action, or refrain from taking such action, as the Property
Trustee shall be instructed in writing to take, or to refrain from taking,
by the Depositor; provided, however, that if the Property Trustee does not
receive such instructions of the Depositor within 10 Business Days after it
has delivered such notice, or such reasonably shorter period of time set
forth in such notice (which to the extent practicable shall not be less
than 2 Business Days), it may, but shall be under no duty to, take or
refrain from taking such action not inconsistent with this Trust Agreement
as it shall deem advisable and in the best interests of the
Securityholders, in which event the Property Trustee shall have no
liability except for its own bad faith, negligence or willful misconduct;
(c) any direction or act of the Depositor or the Administrative
Trustees contemplated by this Trust Agreement shall be sufficiently
evidenced by an Officers' Certificate;
(d) whenever in the administration of this Trust Agreement, the
Property Trustee shall deem it desirable that a matter be established
before undertaking, suffering or omitting any action hereunder, the
Property Trustee (unless other evidence is herein specifically prescribed)
may, in the absence of bad faith on its part, request and conclusively rely
upon an Officer's Certificate which, upon receipt of such request, shall be
promptly delivered by the Depositor or the Administrative Trustees;
(e) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any
financing or continuation statement, any filing under tax or securities
laws or any filing under tax or securities laws) or any rerecording,
refiling or reregistration thereof;
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(f) the Property Trustee may consult with counsel of its choice
(which counsel may be counsel to the Depositor or any of its Affiliates)
and the advice of such counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon and, in accordance with
such advice, such counsel may be counsel to the Depositor or any of its
Affiliates, and may include any of its employees; the Property Trustee
shall have the right at any time to seek instructions concerning the
administration of this Trust Agreement from any court of competent
jurisdiction;
(g) the Property Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Trust Agreement at the
request or direction of any of the Securityholders pursuant to this Trust
Agreement, unless such Securityholders shall have offered to the Property
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request
or direction;
(h) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond, debenture, note or other evidence of
indebtedness or other paper or document, unless requested in writing to do
so by one or more Securityholders, but the Property Trustee may make such
further inquiry or investigation into such facts or matters as it may see
fit;
(i) the Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
its agents or attorneys, provided that the Property Trustee shall be
responsible for its own negligence or recklessness with respect to
selection of any agent or attorney appointed by it hereunder;
(j) 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 Trust Securities which instructions may only be given by the
Holders of the same proportion in Liquidation Amount of the Trust
Securities as would be entitled to direct the Property Trustee under the
terms of the Trust Securities in respect of such remedy, right or action;
(ii) may refrain from enforcing such remedy or right or taking such other
action until such instructions are received; and (iii) shall be protected
in acting in accordance with such instructions; and
(k) except as otherwise expressly provided by this Trust
Agreement, the Property Trustee shall not be under any obligation to take
any action that is discretionary under the provisions of this Trust
Agreement. No provision of this Trust Agreement shall be deemed to impose
any duty or obligation on the Property Trustee to perform any act or acts
or exercise any right, power, duty or obligation conferred or imposed on
it, in any jurisdiction in which it shall be illegal, or in which the
Property Trustee shall be unqualified or incompetent in accordance with
applicable law, to perform any such act or acts, or to
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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 804. Not Responsible for Recitals or Issuance of Securities.
------------------------------------------------------
The Recitals contained herein and in the Trust Securities Certificates
shall be taken as the statements of the Trust, and the Trustees do not assume
any responsibility for their correctness. The Trustees shall not be accountable
for the use or application by the Depositor of the proceeds of the Debentures.
Section 805. May Hold Securities.
-------------------
Any Trustee or any other agent of any Trustee or the Trust, in its
individual or any other capacity, may become the owner or pledgee of Trust
Securities and, subject to Sections 808 and 813 and except as provided in the
definition of the term "Outstanding" in Article I, may otherwise deal with the
Trust with the same rights it would have if it were not a Trustee or such other
agent.
Section 806. Compensation; Indemnity; Fees.
-----------------------------
The Depositor agrees:
(a) to pay to the Trustees from time to time compensation for all
services rendered by them hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust), in the case of the Property Trustee, as set forth in
a written agreement between the Depositor and the Property Trustee;
(b) except as otherwise expressly provided herein, to reimburse
the Trustees upon request for all reasonable expenses, disbursements and
advances incurred or made by the Trustees in accordance with any provision
of this Trust Agreement (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to such Trustee's
negligence, bad faith or willful misconduct (or, in the case of the
Administrative Trustees or the Delaware Trustee, any such expense,
disbursement or advance as may be attributable to its, his or her gross
negligence, bad faith or willful misconduct); and
(c) to indemnify each of the Trustees or any predecessor Trustee
for, and to hold the Trustees harmless against, any loss, damage, claims,
liability, penalty or expense of any kind or nature whatsoever, arising out
of or in connection with the acceptance or administration of this Trust
Agreement, including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of any of
its powers or duties hereunder, except any such expense, disbursement or
advance as may be attributable to such Trustee's negligence, bad faith or
willful misconduct for (or, in the case of the Administrative Trustees or
the Delaware Trustee, any such expense, disbursement or
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advance as may be attributable to its, his or her gross negligence, bad
faith or willful misconduct).
Each Trustee may claim a Lien or charge on Trust Property as a result of
any amount due and unpaid pursuant to this Section 806. The Property Trustee
and the Delaware Trustee may be the same Person.
Section 807. Corporate Property Trustee Required; Eligibility of Trustees.
------------------------------------------------------------
(a) There shall at all times be a Property Trustee hereunder with
respect to the Trust Securities. The Property Trustee shall be a Person
that is eligible pursuant to the Trust Indenture Act to act as such and has
a combined capital and surplus of at least $50,000,000. If any such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then for the
purposes of this Section 807, the combined capital and surplus of such
Person shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time the
Property Trustee with respect to the Trust Securities shall cease to be
eligible in accordance with the provisions of this Section 807, it shall
resign immediately in the manner and with the effect hereinafter specified
in this Article VIII.
(b) There shall at all times be one or more Administrative
Trustees hereunder with respect to the Trust Securities. Each
Administrative Trustee shall be either a natural person who is at least 21
years of age or a legal entity that shall act through one or more persons
authorized to bind that entity.
(c) There shall at all times be a Delaware Trustee with respect
to the Trust Securities. The Delaware Trustee shall either be (i) a natural
person who is at least 21 years of age and a resident of the State of
Delaware; or (ii) a legal entity with its principal place of business in
the State of Delaware and that otherwise meets the requirements of
applicable Delaware law that shall act through one or more persons
authorized to bind such entity.
Section 808. Conflicting Interests.
---------------------
If the Property Trustee has or shall acquire a conflicting interest within
the meaning of the Trust Indenture Act, the Property Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Trust
Agreement.
Section 809. Co-Trustees and Separate Trustee.
--------------------------------
(a) Unless an Event of Default shall have occurred and be
continuing, at any time or times, for the purpose of meeting the legal
requirements of the Trust Indenture Act or of any jurisdiction in which any
part of the Trust Property may at the time be located, the Depositor shall
have power to appoint, and upon the written request of the Property
Trustee,
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the Depositor shall for such purpose join with the Property Trustee in the
execution, delivery and performance of all instruments and agreements
necessary or proper to appoint, one or more Persons approved by the
Property Trustee either to act as co-trustee, jointly with the Property
Trustee, of all or any part of such Trust Property, or to the extent
required by law to act as separate trustee of any such property, in either
case with such powers as may be provided in the instrument of appointment,
and to vest in such Person or Persons in the capacity aforesaid, any
property, title, right or power deemed necessary or desirable, subject to
the other provisions of this Section 809. If the Depositor does not join in
such appointment within 15 days after the receipt by it of a request so to
do, or in case a Debenture Event of Default has occurred and is continuing,
the Property Trustee alone shall have power to make such appointment. Any
co-trustee or separate trustee appointed pursuant to this Section 809 shall
either be (i) a natural person who is at least 21 years of age and a
resident of the United States; or (ii) a legal entity with its principal
place of business in the United States that shall act through one or more
persons authorized to bind such entity.
(b) Should any written instrument from the Depositor be required
by any co-trustee or separate trustee so appointed for more fully
confirming to such co-trustee or separate trustee such property, title,
right, or power, any and all such instruments shall, on request, be
executed, acknowledged, and delivered by the Depositor.
(c) Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject to the
following terms, namely:
(i) The Trust Securities shall be executed and delivered
and all rights, powers, duties and obligations hereunder in
respect of the custody of securities, cash and other personal
property held by, or required to be deposited or pledged with, the
Trustees specified hereunder, shall be exercised, solely by such
Trustees and not by such co-trustee or separate trustee.
(ii) The rights, powers, duties and obligations hereby
conferred or imposed upon the Property Trustee in respect of any
property covered by such appointment shall be conferred or imposed
upon and exercised or performed by the Property Trustee or by the
Property Trustee and such co-trustee or separate trustee jointly,
as shall be provided in the instrument appointing such co-trustee
or separate trustee, except to the extent that under any law of
any jurisdiction in which any particular act is to be performed,
the Property Trustee shall be incompetent or unqualified to
perform such act, in which event such rights, powers, duties and
obligations shall be exercised and performed by such co-trustee or
separate trustee.
(iii) The Property Trustee at any time, by an instrument in
writing executed by it, with the written concurrence of the
Depositor, may accept the resignation of or remove any co-trustee
or separate trustee appointed under this Section 809, and, in case
a Debenture Event of Default has occurred and is continuing, the
Property Trustee shall have the power to accept the resignation
of, or
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remove, any such co-trustee or separate trustee without the
concurrence of the Depositor. Upon the written request of the
Property Trustee, the Depositor shall join with the Property
Trustee in the execution, delivery and performance of all
instruments and agreements necessary or proper to effectuate such
resignation or removal. A successor to any co-trustee or separate
trustee so resigned or removed may be appointed in the manner
provided in this Section 809.
(iv) No co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the Property
Trustee or any other trustee hereunder.
(v) The Property Trustee shall not be liable by reason of
any act of a co-trustee or separate trustee.
(vi) Any Act of Holders delivered to the Property Trustee
shall be deemed to have been delivered to each such co-trustee and
separate trustee.
Section 810. Resignation and Removal; Appointment of Successor.
-------------------------------------------------
(a) No resignation or removal of any Trustee (the "Relevant
Trustee") and no appointment of a successor Trustee pursuant to this
Article VIII shall become effective until the acceptance of appointment by
the successor Trustee in accordance with the applicable requirements of
Section 811.
(b) Subject to the immediately preceding paragraph, the Relevant
Trustee may resign at any time with respect to the Trust Securities by
giving written notice thereof to the Securityholders. If the instrument of
acceptance by the successor Trustee required by Section 811 shall not have
been delivered to the Relevant Trustee within 30 days after the giving of
such notice of resignation, the Relevant Trustee may petition, at the
expense of the Depositor, any court of competent jurisdiction or the
appointment of a successor Relevant Trustee with respect to the Trust
Securities.
(c) Unless a Debenture Event of Default shall have occurred and
be continuing, any Trustee may be removed at any time by Act of the Common
Securityholder. If a Debenture Event of Default shall have occurred and be
continuing, the Property Trustee or the Delaware Trustee, or both of them,
may be removed at such time by Act of the Holders of a majority in
Liquidation Amount of the Trust Preferred Securities, delivered to the
Relevant Trustee (in its individual capacity and on behalf of the Trust).
An Administrative Trustee may be removed by the Common Securityholder at
any time.
(d) If any Trustee shall resign, be removed or become incapable
of acting as Trustee, or if a vacancy shall occur in the office of any
Trustee for any cause, at a time when no Debenture Event of Default shall
have occurred and be continuing, the Common Securityholder, by Act of the
Common Securityholder delivered to the retiring Trustee, shall
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promptly appoint a successor Trustee or Trustees with respect to the Trust
Securities and the Trust, and the successor Trustee shall comply with the
applicable requirements of Section 811. If the Property Trustee or the
Delaware Trustee shall resign, be removed or become incapable of continuing
to act as the Property Trustee or the Delaware Trustee, as the case may be,
at a time when a Debenture Event of Default shall have occurred and is
continuing, the Trust Preferred Securityholders, by Act of the
Securityholders of a majority in Liquidation Amount of the Trust Preferred
Securities then Outstanding delivered to the retiring Relevant Trustee,
shall promptly appoint a successor Relevant Trustee or Trustees with
respect to the Trust Securities and the Trust, and such successor Trustee
shall comply with the applicable requirements of Section 811. If an
Administrative Trustee shall resign, be removed or become incapable of
acting as Administrative Trustee, at a time when a Debenture Event of
Default shall have occurred and be continuing, the Common Securityholder,
by Act of the Common Securityholder delivered to an Administrative Trustee,
shall promptly appoint a successor Administrative Trustee or Administrative
Trustees with respect to the Trust Securities and the Trust, and such
successor Administrative Trustee or Administrative Trustees shall comply
with the applicable requirements of Section 811. If no successor Relevant
Trustee with respect to the Trust Securities shall have been so appointed
by the Common Securityholder or the Trust Preferred Securityholders and
accepted appointment in the manner required by Section 811, any
Securityholder who has been a Securityholder of Trust Securities on behalf
of himself and all others similarly situated may petition a court of
competent jurisdiction for the appointment Trustee with respect to the
Trust Securities.
(e) The Property Trustee shall give notice of each resignation
and each removal of a Trustee and each appointment of a successor Trustee
to all Securityholders in the manner provided in Section 1008 and shall
give notice to the Depositor. Each notice shall include the name of the
successor Relevant Trustee and the address of its Corporate Trust office if
it is the Property Trustee.
(f) Notwithstanding the foregoing or any other provision of this
Trust Agreement, in the event any Administrative Trustee or a Delaware
Trustee who is a natural person dies or becomes, in the opinion of the
Depositor, incompetent or incapacitated, the vacancy created by such death,
incompetence or incapacity may be filled by (a) the unanimous act of
remaining Administrative Trustees if there are at least two of them; or (b)
otherwise by the Depositor (with the successor in each case being a Person
who satisfies the eligibility requirement for Administrative Trustees set
forth in Section 807).
Section 811. Acceptance of Appointment by Successor.
--------------------------------------
(a) In case of the appointment hereunder of a successor Relevant
Trustee with respect to the Trust Securities and the Trust, the retiring
Relevant Trustee and each successor Relevant Trustee with respect to the
Trust Securities shall execute and deliver an instrument hereto wherein
each successor Relevant Trustee shall accept such appointment and which
shall contain such provisions as shall be necessary or desirable to
transfer and confirm to,
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and to vest in, each successor Relevant Trustee all the rights, powers,
trusts and duties of the retiring Relevant Trustee with respect to the
Trust Securities and the Trust and upon the execution and delivery of such
instrument the resignation or removal of the retiring Relevant Trustee
shall become effective to the extent provided therein and each such
successor Relevant Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties of the
retiring Relevant Trustee with respect to the Trust Securities and the
Trust; but, on request of the Trust or any successor Relevant Trustee such
retiring Relevant Trustee shall duly assign, transfer and deliver to such
successor Relevant Trustee all Trust Property, all proceeds thereof and
money held by such retiring Relevant Trustee hereunder with respect to the
Trust Securities and the Trust.
(b) Upon request of any such successor Relevant Trustee, the
Trust shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Relevant Trustee all such
rights, powers and trusts referred to in the immediately preceding
paragraph, as the case may be.
(c) No successor Relevant Trustee shall accept its appointment
unless at the time of such acceptance such successor Relevant Trustee shall
be qualified and eligible under this Article VIII.
Section 812. Merger, Conversion, Consolidation or Succession to Business.
-----------------------------------------------------------
Any Person into which the Property Trustee, the Delaware Trustee or any
Administrative Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which such Relevant Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of such Relevant Trustee, shall be the successor of such Relevant Trustee
hereunder, provided such Person shall be otherwise qualified and eligible under
this Article VIII, without the execution or filing of any paper or any further
act on the part of any of the parties hereto.
Section 813. Preferential Collection of Claims Against Depositor or Trust.
------------------------------------------------------------
If and when the Property Trustee or the Delaware Trustee shall be or become
a creditor of the Depositor or the Trust (or any other obligor upon the
Debentures or the Trust Securities), the Property Trustee or the Delaware
Trustee, as the case may be, shall be subject to and shall take all actions
necessary in order to comply with the provisions of the Trust Indenture Act
regarding the collection of claims against the Depositor or Trust (or any such
other obligor).
Section 814. Reports by Property Trustee.
---------------------------
(a) Not later than July 15 of each year commencing with July 15,
2000, the Property Trustee shall transmit to all Securityholders in
accordance with Section 1008, and to the Depositor, a brief report dated as
of May 15 with respect to:
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(i) its eligibility under Section 807 or, in lieu thereof,
if to the best of its knowledge it has continued to be eligible
under said Section, a written statement to such effect; and
(ii) any change in the property and funds in its possession
as Property Trustee since the date of its last report and any
action taken by the Property Trustee in the performance of its
duties hereunder which it has not previously reported and which in
its opinion materially affects the Trust Securities.
(b) In addition the Property Trustee shall transmit to
Securityholders such reports concerning the Property Trustee and its
actions under this Trust Agreement as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant thereto.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Property Trustee with the
Depositor.
Section 815. Reports to the Property Trustee.
-------------------------------
The Depositor and the Administrative Trustees on behalf of the Trust shall
provide to the Property Trustee such documents, reports and information as
required by Section 314 of the Trust Indenture Act (if any) and the compliance
certificate required by Section 314(a) of the Trust Indenture Act in the form,
in the manner and at the times required by Section 314 of the Trust Indenture
Act.
Section 816. Evidence of Compliance with Conditions Precedent.
------------------------------------------------
Each of the Depositor 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) of the Trust Indenture Act shall be given in the form of an
Officers' Certificate.
Section 817. Number of Trustees.
------------------
(a) The number of Trustees shall be five, provided that the
Holder of all of the Common Securities by written instrument may increase
or decrease the number of Administrative Trustees. The Property Trustee and
the Delaware Trustee may be the same Person.
(b) If a Trustee ceases to hold office for any reason and the
number of Administrative Trustees is not reduced pursuant to Section
817(a), or if the number of Trustees is increased pursuant to Section
817(a), a vacancy shall occur. The vacancy shall be filled with a Trustee
appointed in accordance with Section 810.
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(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not
operate to annul 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 810,
the Administrative Trustees in office, regardless of their number (and
notwithstanding any other provision of this Agreement), shall have all the
powers granted to the Administrative Trustees and shall discharge all the
duties imposed upon the Administrative Trustees by this Trust Agreement.
Section 818. Delegation of Power.
-------------------
(a) Any Administrative Trustee may, by power of attorney
consistent with applicable law, delegate to any other natural person over
the age of 21 his or her power for the purpose of executing any documents
contemplated in Section 207(a); and
(b) The Administrative Trustees shall have power to delegate from
time to time to such of their number or to the Depositor 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.
Section 819. Voting.
------
Except as otherwise provided in this Trust Agreement, the consent or
approval of the Administrative Trustees shall require consent or approval by not
less than a majority of the Administrative Trustees, unless there are only two,
in which case both must consent.
ARTICLE IX
TERMINATION, LIQUIDATION AND MERGER
Section 901. Termination Upon Expiration Date.
--------------------------------
Unless earlier dissolved, the Trust shall automatically dissolve on
November 24, 2030 (the "Expiration Date") subject to distribution of the Trust
Property in accordance with Section 904.
Section 902. Early Termination.
-----------------
The first to occur of any of the following events is an "Early Termination
Event:"
(a) the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation of, the Depositor;
-44-
(b) delivery of written direction to the Property Trustee by the
Depositor at any time (which direction is wholly optional and within the
discretion of the Depositor, subject to Depositor having received prior
approval of the Board of Governors of the Federal Reserve System if so
required under applicable guidelines, policies or regulations thereof) to
dissolve the Trust and distribute the Debentures to Securityholders in
exchange for the Trust Preferred Securities in accordance with Section 904;
(c) the redemption of all of the Trust Preferred Securities in
connection with the redemption of all of the Debentures (whether upon a
Debenture Redemption Date or the maturity of the Debenture); or
(d) an order for dissolution of the Trust shall have been entered
by a court of competent jurisdiction.
Section 903. Termination.
-----------
The respective obligations and responsibilities of the Trustees and the
Trust created and continued hereby shall terminate upon the latest to occur of
the following: (a) the distribution by the Property Trustee to Securityholders
upon the liquidation of the Trust pursuant to Section 904, or upon the
redemption of all of the Trust Securities pursuant to Section 402, of all
amounts required to be distributed hereunder upon the final payment of the Trust
Securities; (b) the payment of any expenses owed by the Trust; (c) the discharge
of all administrative duties of the Administrative Trustees, including the
performance of any tax reporting obligations with respect to the Trust or the
Securityholders; and (d) the filing of a Certificate of Cancellation by the
Administrative Trustee under the Business Trust Act.
Section 904. Liquidation.
-----------
(a) If an Early Termination Event specified in clause (a), (b),
or (d) of Section 902 occurs or upon the Expiration Date, the Trust shall
be liquidated by the Trustees as expeditiously as the Trustees determine to
be possible by distributing, after satisfaction of liabilities to creditors
of the Trust as provided by applicable law, to each Securityholder a Like
Amount of Debentures, subject to Section 904(d). Notice of liquidation
shall be given by the Property Trustee by first-class mail, postage
prepaid, mailed not later than 30 nor more than 60 days prior to the
Liquidation Date to each Holder of Trust Securities at such Holder's
address appearing in the Securities Register. All notices of liquidation
shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date, the
Trust Securities shall no longer be deemed to be Outstanding and
any Trust Securities Certificates not surrendered for exchange
shall be deemed to represent a Like Amount of Debentures; and
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(iii) provide such information with respect to the mechanics
by which Holders may exchange Trust Securities Certificates for
Debentures, or, if Section 904(d) applies, receive a Liquidation
Distribution, as the Administrative Trustees or the Property
Trustee shall deem appropriate.
(b) Except where Section 902(c) or 904(d) applies, in order to
effect the liquidation of the Trust and distribution of the Debentures to
Securityholders, the Property Trustee shall establish a record date for
such distribution (which shall be not more than 45 days prior to the
Liquidation Date) and, either itself acting as exchange agent or through
the appointment of a separate exchange agent, shall establish such
procedures as it shall deem appropriate to effect the distribution of
Debentures in exchange for the Outstanding Trust Securities Certificates.
(c) Except where Section 902(c) or 904(d) applies, after the
Liquidation Date, (i) the Trust Securities shall no longer be deemed to be
outstanding; (ii) certificates representing a Like Amount of Debentures
shall be issued to holders of Trust Securities Certificates upon surrender
of such certificates to the Administrative Trustees or their agent for
exchange; (iii) any Trust Securities Certificates not so surrendered for
exchange shall be deemed to represent a Like Amount of Debentures, accruing
interest at the rate provided for in the Debentures from the last
Distribution Date on which a Distribution was made on such Trust Securities
Certificates until such certificates are so surrendered (and until such
certificates are so surrendered, no payments of interest or principal shall
be made to holders of Trust Securities Certificates with respect to such
Debentures); and (iv) all rights of Securityholders holding Trust
Securities shall cease, except the right of such Securityholders to receive
Debentures upon surrender of Trust Securities Certificates.
(d) In the event that, notwithstanding the other provisions of
this Section 904, whether because of an order for dissolution entered by a
court of competent jurisdiction or otherwise, distribution of the
Debentures in the manner provided herein is determined by the Property
Trustee not to be practical, the Trust Property shall be liquidated, and
the Trust shall be dissolved, wound-up or terminated, by the Property
Trustee in such manner as the Property Trustee determines. In such event,
on the date of the dissolution, winding-up or other termination of the
Trust, Securityholders shall be entitled to receive out of the assets of
the Trust available for distribution to Securityholders, after satisfaction
of liabilities to creditors of the Trust as provided by applicable law, an
amount equal to the Liquidation Amount per Trust Security plus accumulated
and unpaid Distributions thereon to the date of payment (such amount being
the "Liquidation Distribution"). If, upon any such dissolution, winding-up
or termination, the Liquidation Distribution can be paid only in part
because the Trust has insufficient assets available to pay in full the
aggregate Liquidation Distribution, then, subject to the next succeeding
sentence, the amounts payable by the Trust on the Trust Securities shall be
paid on a pro rata basis (based upon Liquidation Amounts). The holder of
the Common Securities shall be entitled to receive Liquidation
Distributions upon any such dissolution, winding-up or termination pro rata
(determined as aforesaid) with Holders of Trust Preferred Securities,
except that, if a Debenture Event of Default has occurred and
-46-
is continuing, the Trust Preferred Securities shall have a priority over
the Common Securities.
Section 905. Mergers, Consolidations, Amalgamations or Replacements of the
-------------------------------------------------------------
Trust.
-----
The Trust may not merge with or into, consolidate, amalgamate, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other Person, except pursuant
to this Section 905. At the request of the Depositor, with the consent of the
Administrative Trustees and without the consent of the holders of the Trust
Preferred Securities, the Property Trustee or the Delaware Trustee, the Trust
may merge with or into, consolidate, amalgamate, be replaced by or convey,
transfer or lease its properties and assets substantially as an entirety to a
trust organized as such under the laws of any state; provided, that (i) such
successor entity either (a) expressly assumes all of the obligations of the
Trust with respect to the Trust Preferred Securities; or (b) substitutes for the
Trust Preferred Securities other securities having substantially the same terms
as the Trust Preferred Securities (the "Successor Securities) so long as the
Successor Securities rank the same as the Trust Preferred Securities rank in
priority with respect to distributions and payments upon liquidation, redemption
and otherwise; (ii) the Depositor expressly appoints a trustee of such successor
entity possessing substantially the same powers and duties as the Property
Trustee as the holder of the Debentures; (iii) the Successor Securities are
listed or traded, or any Successor Securities shall be listed or traded upon
notification of issuance, on any national securities exchange or other
organization on which the Trust Preferred Securities are then listed, if any;
(iv) such merger, consolidation, amalgamation, replacement, conveyance, transfer
or lease does not adversely affect the rights, preferences and privileges of the
holders of the Trust Preferred Securities (including any Successor Securities)
in any material respect; (v) such successor entity has a purpose substantially
identical to that of the Trust; (vi) prior to such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease, the Depositor has
received an Opinion of Counsel 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
Trust Preferred Securities (including any Successor Securities) in any material
respect; and (b) following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, neither the Trust nor such successor
entity shall be required to register as an "investment company" under the
Investment Company Act; and (vii) the Depositor owns all of the Common
Securities of such successor entity and guarantees the obligations of such
successor entity under the Successor Securities at least to the extent provided
by the Guarantee. Notwithstanding the foregoing, the Trust shall not, except
with the consent of holders of 100% in Liquidation Amount of the Trust Preferred
Securities, consolidate, amalgamate, merge with or into, or be replaced by or
convey, transfer or lease its properties and assets substantially as an entirety
to any other Person or permit any other Person to consolidate, amalgamate, merge
with or into, or replace it if such consolidation, amalgamation, merger or
replacement would cause the Trust or the successor entity to be classified as
other than a grantor trust for United States federal income tax purposes.
-47-
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 1001. Limitation of Rights of Securityholders.
---------------------------------------
The death or incapacity of any Person having an interest, beneficial or
otherwise, in Trust Securities shall not operate to terminate this Trust
Agreement, nor entitle the legal representatives or heirs of such Person or any
Securityholder for such Person, to claim an accounting, take any action or bring
any proceeding in any court for a partition or winding-up of the arrangements
contemplated hereby, nor otherwise affect the rights, obligations and
liabilities of the parties hereto or any of them.
Section 1002. Amendment.
---------
(a) This Trust Agreement may be amended from time to time by the
Trustees and the Depositor, without the consent of any Securityholders, (i)
as provided in Section 811 with respect to acceptance of appointment by a
successor Trustee; (ii) to cure any ambiguity, correct or supplement any
provision herein or therein which may be inconsistent with any other
provision herein or therein, or to make any other provisions with respect
to matters or questions arising under this Trust Agreement, that shall not
be inconsistent with the other provisions of this Trust Agreement; or (iii)
to modify, eliminate or add to any provisions of this Trust Agreement to
such extent as shall be necessary to ensure that the Trust shall be
classified for United States federal income tax purposes as a grantor trust
at all times that any Trust Securities are outstanding or to ensure that
the Trust shall not be required to register as an "investment company"
under the Investment Company Act; provided, however, that in the case of
clause (ii), such action shall not adversely affect in any material respect
the interests of any Securityholder, and any amendments of this Trust
Agreement shall become effective when notice thereof is given to the
Securityholders.
(b) Except as provided in Section 601(c) or Section 1002(c)
hereof, any provision of this Trust Agreement may be amended by the
Trustees and the Depositor (i) with the consent of Trust Securityholders
representing not less than a majority (based upon Liquidation Amounts) of
the Trust Securities then Outstanding; and (ii) upon 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 shall 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" under the Investment Company Act.
(c) In addition to and notwithstanding any other provision in
this Trust Agreement, without the consent of each affected Securityholder
(such consent being obtained in accordance with Section 603 or 606 hereof),
this Trust Agreement may not be amended to (i) change the amount or timing
of any Distribution on the Trust Securities or otherwise adversely affect
the amount of any Distribution required to be made in respect of the Trust
-48-
Securities as of a specified date; or (ii) restrict the right of a
Securityholder to institute suit for the enforcement of any such payment on
or after such date; notwithstanding any other provision herein, without the
unanimous consent of the Securityholders (such consent being obtained in
accordance with Section 603 or 606 hereof), this paragraph (c) of this
Section 1002 may not be amended.
(d) Notwithstanding any other provisions of this Trust Agreement,
no Trustee shall enter into or consent to any amendment to this Trust
Agreement which would cause the Trust to fail or cease to qualify for the
exemption from status of an "investment company" under the Investment
Company Act or to fail or cease to be classified as a grantor trust for
United States federal income tax purposes.
(e) Notwithstanding anything in this Trust Agreement to the
contrary, without the consent of the Depositor, this Trust Agreement may
not be amended in a manner which imposes any additional obligation on the
Depositor.
(f) In the event that any amendment to this Trust Agreement is
made, the Administrative Trustees shall promptly provide to the Depositor a
copy of such amendment.
(g) Neither the Property Trustee nor the Delaware Trustee shall
be required to enter into any amendment to this Trust Agreement which
affects its own rights, duties or immunities under this Trust Agreement.
The Property Trustee shall be entitled to receive an Opinion of Counsel and
an Officers' Certificate stating that any amendment to this Trust Agreement
is in compliance with this Trust Agreement.
Section 1003. Separability.
------------
In case any provision in this Trust Agreement or in the Trust Securities
Certificates shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
Section 1004. Governing Law.
-------------
THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE
SECURITYHOLDERS, THE TRUST AND THE TRUSTEES WITH RESPECT TO THIS TRUST AGREEMENT
AND THE TRUST SECURITIES SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAWS OF THE STATE OF DELAWARE (WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES
THEREOF).
Section 1005. Payments Due on Non-Business Day.
--------------------------------
If the date fixed for any payment on any Trust Security shall be a day that
is not a Business Day, then such payment need not be made on such date but may
be made on the next succeeding day which is a Business Day, except that, if such
Business Day is in the next succeeding calendar year,
-49-
such payment shall be made on the immediately preceding Business Day (and
without any reduction of interest or any other payment in respect of any such
acceleration), in each case with the same force and effect as though made on the
date fixed for such payment, and no distribution shall accumulate thereon for
the period after such date.
Section 1006. Successors.
----------
This Trust Agreement shall be binding upon and shall inure to the benefit
of any successor to the Depositor, the Trust or the Relevant Trustee(s),
including any successor by operation of law. Except in connection with a
consolidation, merger or sale involving the Depositor that is permitted under
Article XII of the Indenture and pursuant to which the assignee agrees in
writing to perform the Depositor's obligations hereunder, the Depositor shall
not assign its obligations hereunder.
Section 1007. Headings.
--------
The Article and Section headings are for convenience only and shall not
affect the construction of this Trust Agreement.
Section 1008. Reports, Notices and Demands.
----------------------------
Any report, notice, demand or other communication which by any provision of
this Trust Agreement is required or permitted to be given or served to or upon
any Securityholder or the Depositor may be given or served in writing by deposit
thereof, first-class postage prepaid, in the United States mail, hand delivery
or facsimile transmission, in each case, addressed, (a) in the case of a Trust
Preferred Securityholder, to such Trust Preferred Securityholder as such
Securityholder's name and address may appear on the Securities Register; and (b)
in the case of the Common Securityholder or the Depositor, to Paradigm
Bancorporation, Inc., ▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇.
▇▇▇▇▇▇, facsimile no.: (▇▇▇)▇▇▇-▇▇▇▇. Any notice to Trust Preferred
Securityholders shall also be given to such owners as have, within two years
preceding the giving of such notice, filed their names and addresses with the
Property Trustee for that purpose. Such notice, demand or other communication to
or upon a Securityholder shall be deemed to have been sufficiently given or
made, for all purposes, upon hand delivery, mailing or transmission.
Any notice, demand or other communication which by any provision of this
Trust Agreement is required or permitted to be given or served to or upon the
Trust, the Property Trustee or the Administrative Trustees shall be given in
writing addressed (until another address is published by the Trust) as follows:
(a) with respect to the Property Trustee to First Union Trust Company, National
Association, One ▇▇▇▇▇▇ Square, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: Corporate Trust Administration; (b) with respect to the
Delaware Trustee, to First Union Trust Company, National Association at the
above address; and (c) with respect to the Administrative Trustees, to them at
the address above for notices to the Depositor, marked "Attention:
Administrative Trustees of Capital Trust." Such notice, demand or other
communication to or upon the Trust or the Property Trustee shall be deemed to
have been sufficiently given or made only upon actual receipt of the writing by
the Trust or the Property Trustee.
-50-
Section 1009. Agreement not to Petition.
-------------------------
Each of the Trustees and the Depositor agree for the benefit of the
Securityholders that, until at least one year and one day after the Trust has
been terminated in accordance with Article IX, they shall not file, or join in
the filing of, a petition against the Trust under any bankruptcy, insolvency,
reorganization or other similar law (including, without limitation, the United
States Bankruptcy Code of 1978, as amended) (collectively, "Bankruptcy Laws") or
otherwise join in the commencement of any proceeding against the Trust under any
Bankruptcy Law. In the event the Depositor or any of the Trustees takes action
in violation of this Section 1009, the Property Trustee agrees, for the benefit
of Securityholders, that at the expense of the Depositor (which expense shall be
paid prior to the filing), it shall file an answer with the bankruptcy court or
otherwise properly contest the filing of such petition by the Depositor or such
Trustee against the Trust or the commencement of such action and raise the
defense that the Depositor or such Trustee has agreed in writing not to take
such action and should be stopped and precluded therefrom. The provisions of
this Section 1009 shall survive the termination of this Trust Agreement.
Section 1010. Trust Indenture Act; Conflict with Trust Indenture Act.
------------------------------------------------------
(a) This Trust Agreement is subject to the provisions of the
Trust Indenture Act that are required to be part of this Trust Agreement
and shall, to the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a
trustee for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required to be included in this Trust
Agreement by any of the provisions of the Trust Indenture Act, such
required provision shall control. If any provision of this Trust Agreement
modifies or excludes any provision of the Trust Indenture Act which may be
so modified or excluded, the latter provision shall be deemed to apply to
this Trust Agreement as so modified or to be excluded, as the case may be.
The application of the Trust Indenture Act to this Trust Agreement shall
not affect the nature of the Securities as equity securities representing
undivided beneficial interests in the assets of the Trust.
Section 1011. Acceptance of Terms of Trust Agreement, Guarantee and
-----------------------------------------------------
Indenture.
---------
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN BY
OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY SIGNATURE
OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL
ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN
SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT AND
AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE AND
THE INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST, SUCH
-51-
SECURITYHOLDER AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF THIS TRUST
AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND
SUCH SECURITYHOLDER AND SUCH OTHERS.
[SIGNATURE PAGE FOLLOWS]
-52-
This Amended and Restated Trust Agreement is executed as of the day and
year first above written.
PARADIGM BANCORPORATION, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
FIRST UNION TRUST COMPANY,
NATIONAL ASSOCIATION, as Property
Trustee
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
-----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Vice President
FIRST UNION TRUST COMPANY,
NATIONAL ASSOCIATION, as Delaware
Trustee
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
-----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Vice President
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ M.D.
----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, M.D., As Administrative Trustee
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, As Administrative Trustee
/s/ ▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
----------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., As Administrative Trustee
EXHIBIT A
CERTIFICATE OF TRUST
OF
PARADIGM CAPITAL TRUST I
THIS CERTIFICATE OF TRUST OF Paradigm Capital Trust I (the "Trust"), dated
November 24, 1999, is being duly executed and filed by First Union Trust
Company, National Association, a national banking association, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
M.D., ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, and ▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., each an individual, as trustees,
to form a business trust under the Delaware Business Trust Act (12 Del. C.
-------
Section 3801 et seq.)(the "Act").
------
1. NAME. The name of the business trust formed hereby is Paradigm
Capital Trust I.
2. DELAWARE TRUSTEE. The name and business address of the trustee of
the Trust in the State of Delaware is First Union Trust Company, National
Association, One ▇▇▇▇▇▇ Square, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: Corporate Trust Administration.
3. EFFECTIVE DATE. This Certificate of Trust will be effective upon
filing.
IN WITNESS WHEREOF, the undersigned have executed this Certificate of Trust
in accordance with Section 3811(a)(1) of the Act.
FIRST UNION TRUST COMPANY,
NATIONAL ASSOCIATION, as Delaware
trustee
By: _________________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Vice President
_____________________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, M.D.,
as Administrative Trustee
_____________________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as Administrative Trustee
_____________________________________________
▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., as Administrative Trustee
A-1
EXHIBIT B
THIS CERTIFICATE IS NOT TRANSFERABLE
Certificate Number 1 Number of Common Securities16,000
Certificate Evidencing Common Securities
of
Paradigm Capital Trust I
Common Securities
(liquidation amount $10 per Common Security)
PARADIGM CAPITAL TRUST I, a statutory business trust created under the laws
of the State of Delaware (the "Trust"), hereby certifies that PARADIGM
BANCORPORATION, INC. (the "Holder") is the registered owner of sixteen thousand
(16,000) common securities of the Trust representing undivided beneficial
interests in the assets of the Trust and designated the 10.375% Common
Securities (liquidation amount $10 per Common Security) (the "Common
Securities"). In accordance with Section 510 of the Trust Agreement (as defined
below), the Common Securities are not transferable and any attempted transfer
hereof shall be void. The designations, rights, privileges, restrictions,
preferences, and other terms and provisions of the Common Securities are set
forth in, and this certificate and the Common Securities represented hereby are
issued and shall in all respects be subject to the terms and provisions of, the
Amended and Restated Trust Agreement of the Trust dated as of, December 1, 1999,
as the same may be amended from time to time (the "Trust Agreement"), including
the designation of the terms of the Common Securities as set forth therein. The
Trust shall furnish a copy of the Trust Agreement to the Holder without charge
upon written request to the Trust at its principal place of business or
registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust has
executed this certificate this 1st day of December, 1999.
Paradigm Capital Trust I
By:________________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Administrative Trustee
B-1
EXHIBIT C
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT AS TO EXPENSES AND LIABILITIES (this "Agreement") dated as of
December 1, 1999, between PARADIGM BANCORPORATION, INC., a Texas corporation
(the "Company"), and PARADIGM CAPITAL TRUST I, a Delaware business trust (the
"Trust").
RECITALS
WHEREAS, the Trust intends to issue its common securities (the "Common
Securities") to, and receive 10.375% Subordinated Debentures (the "Debentures")
from, the Company and to issue and sell Paradigm Capital Trust I 10.375%
Cumulative Trust Preferred Securities (the "Trust Preferred Securities") with
such powers, preferences and special rights and restrictions as are set forth in
the Amended and Restated Trust Agreement of the Trust dated as of December 1,
1999, as the same may be amended from time to time (the "Trust Agreement");
WHEREAS, the Company shall directly or indirectly own all of the Common
Securities of the Trust and shall issue the Debentures;
NOW, THEREFORE, in consideration of the purchase by each holder of the
Trust Preferred Securities, which purchase the Company hereby agrees shall
benefit the Company and which purchase the Company acknowledges shall be made in
reliance upon the execution and delivery of this Agreement, the Company,
including in its capacity as holder of the Common Securities, and the Trust
hereby agree as follows:
ARTICLE I
Section 1.1 Guarantee by the Company.
------------------------
Subject to the terms and conditions hereof, the Company, including in its
capacity as holder of the Common Securities, hereby irrevocably and
unconditionally guarantees to each person or entity to whom the Trust is now or
hereafter becomes indebted or liable (the "Beneficiaries") the full payment when
and as due, of any and all Obligations (as hereinafter defined) to such
Beneficiaries. As used herein, "Obligations" means any costs, expenses or
liabilities of the Trust other than obligations of the Trust to pay to holders
of any Trust Preferred Securities or other similar interests in the Trust the
amounts due such holders pursuant to the terms of the Trust Preferred Securities
or such other similar interests, as the case may be. This Agreement is intended
to be for the benefit of, and to be enforceable by, all such Beneficiaries,
whether or not such Beneficiaries have received notice hereof.
C-1
Section 1.2 Term of Agreement.
-----------------
This Agreement shall terminate and be of no further force and effect upon
the later of (a) the date on which full payment has been made of all amounts
payable to all holders of all the Trust Preferred Securities (whether upon
redemption, liquidation, exchange or otherwise); and (b) the date on which there
are no Beneficiaries remaining; provided, however, that this Agreement shall
continue to be effective or shall be reinstated, as the case may be, if at any
time any holder of Trust Preferred Securities or any Beneficiary must restore
payment of any sums paid under the Trust Preferred Securities, under any
obligation, under the Trust Preferred Securities Guarantee Agreement dated the
date hereof by the Company and First Union Trust Company, National Association,
as guarantee trustee or under this Agreement for any reason whatsoever. This
Agreement is continuing, irrevocable, unconditional and absolute.
Section 1.3 Waiver of Notice.
----------------
The Company hereby waives notice of acceptance of this Agreement and of any
obligation to which it applies or may apply, and the Company hereby waives
presentment, demand for payment, protest, notice of nonpayment, notice of
dishonor, notice of redemption and all other notices and demands.
Section 1.4 No Impairment.
-------------
The obligations, covenants, agreements and duties of the Company under this
Agreement shall in no way be affected or impaired by reason of the happening
from time to time of any of the following:
(a) the extension of time for the payment by the Trust of all or
any portion of the obligations or for the performance of any other
obligation under, arising out of, or in connection with, the obligations;
(b) any failure, omission, delay or lack of diligence on the part
of the Beneficiaries to enforce, assert or exercise any right, privilege,
power or remedy conferred on the Beneficiaries with respect to the
obligations or any action on the part of the Trust granting indulgence or
extension of any kind; or
(c) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement composition or
readjustment of debt of, or other similar proceedings affecting, the Trust
or any of the assets of the Trust. There shall be no obligation of the
Beneficiaries to give notice to, or obtain the consent of, the Company with
respect to the happening of any of the foregoing.
C-2
Section 1.5 Enforcement.
-----------
A Beneficiary may enforce this Agreement directly against the Company, and
the Company waives any right or remedy to require that any action be brought
against the Trust or any other person or entity before proceeding against the
Company.
ARTICLE II
Section 2.1 Binding Effect.
--------------
All guarantees and agreements contained in this Agreement shall bind the
successors, assigns, receivers, trustees and representatives of the Company and
shall inure to the benefit of the Beneficiaries.
Section 2.2 Amendment.
---------
So long as there remains any Beneficiary or any Trust Preferred Securities
of any series are outstanding, this Agreement shall not be modified or amended
in any manner adverse to such Beneficiary or to any of the holders of the Trust
Preferred Securities.
Section 2.3 Notices.
-------
Any notice, request or other communication required or permitted to be
given hereunder shall be given in writing by delivering the same by facsimile
transmission (confirmed by mail), telex, or by registered or certified mail,
addressed as follows (and if so given, shall be deemed given when mailed or upon
receipt of an answer back, if sent by telex):
Paradigm Capital Trust I
c/o Paradigm Bancorporation, Inc.
▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇)▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Administrative Trustee
Paradigm Bancorporation, Inc.
▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇)▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
Section 2.4 This agreement shall be governed by and construed and
interpreted in accordance with the laws of the State of Delaware (without regard
to conflict of laws principles).
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THIS AGREEMENT is executed as of the day and year first above written.
PARADIGM BANCORPORATION, INC.
By: _______________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
PARADIGM CAPITAL TRUST I
By: _______________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Administrative Trustee
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EXHIBIT D
Certificate Number __________ Number of Trust Preferred Securities __________
Certificate Evidencing Trust Preferred Securities
of
Paradigm Capital Trust I
10.375% Cumulative Trust Preferred Securities
(liquidation amount $10 per Trust Preferred Security)
Paradigm Capital Trust I, 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 _________ preferred securities of the
Trust representing undivided beneficial interests in the assets of the Trust and
designated the 10.375% Cumulative Trust Preferred Securities (liquidation amount
$10 per Trust Preferred Security) (the "Trust Preferred Securities"). The Trust
Preferred Securities are transferable on the books and records 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 Section 504 of the Trust
Agreement (as defined herein). The designations, rights, privileges,
restrictions, preferences, and other terms and provisions of the Trust Preferred
Securities are set forth in, and this certificate and the Trust Preferred
Securities represented hereby are issued and shall in all respects be subject to
the terms and provisions of, the Amended and Restated Trust Agreement of the
Trust dated as of December 1, 1999, as the same may be amended from time to time
(the "Trust Agreement"), including the designation of the terms of Trust
Preferred Securities as set forth therein. The Holder is entitled to the
benefits of the Trust Preferred Securities Guarantee Agreement entered into by
Paradigm Bancorporation, Inc., a Texas corporation, and First Union Trust
Company, National Association, as guarantee trustee, dated as of December 1,
1999, as the same may be amended from time to time (the "Guarantee"), to the
extent provided therein. The Trust shall furnish a copy of the Trust Agreement
and the Guarantee to the Holder without charge upon written request to the Trust
at its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
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Unless the Certificate of Authentication has been manually executed by the
Authentication Agent, this certificate is not valid or effective.
IN WITNESS WHEREOF, the Administrative Trustees of the Trust have executed
this Certificate this 1st day of December, 1999.
PARADIGM CAPITAL TRUST I
By: ________________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, M.D., as
Administrative Trustee
By: ________________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as
Administrative Trustee
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
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▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., as
Administrative Trustee
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FORM OF REVERSE OF CERTIFICATE
The Trust will furnish without charge to any registered owner of Trust
Preferred Securities who so requests, a copy of the Trust Agreement and the
Guarantee. Any such request should be in writing and addressed to Paradigm
Capital Trust I, c/o Paradigm Bancorporation, Inc., ▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇ or to the Registrar named on the face of this Certificate.
The following abbreviations, when used in the inscription on the face of
this Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN CON - as tenants in common
TEN ENT - as tenants in the entireties
JT TEN - as joint tenants with right of survival
UNIF GIFT MIN ACT - under Uniform Gift to Minors Act and not as tenants
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto:
________________________________________________________________________________
________________________________________________________________________________
(Please insert social security or other identifying number of assignee)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(insert address and zip code of assignee)
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the within Certificate and all rights and interests represented by the Trust
Preferred Securities evidenced thereby, and hereby irrevocably constitutes and
appoints attorney to transfer the said Trust Preferred Securities on the books
of the within-named Trust with full power of substitution in the premises.
Dated:________________ Signature:__________________________________
Note: The signature(s) to this assignment
must correspond with the name(s) as written
upon the face of this Certificate in every
particular, without alteration or
enlargement, or any change whatever.
Signature(s) Guaranteed:
NOTICE: Signature(s) must be guaranteed by an "eligible guarantor institution"
that is a member or participant in a "signature guarantee program" (i.e., the
Securities Transfer Agents Medallion Program, the Stock Exchange Medallion
Program or the New York Stock Exchange, Inc. Medallion Signature Program).
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EXHIBIT E
FORM OF CERTIFICATE OF AUTHENTICATION
This is one of the 10.375% Cumulative Trust Preferred Securities referred
to in the within-mentioned Amended and Restated Trust Agreement.
FIRST UNION TRUST COMPANY,
NATIONAL ASSOCIATION, as
Authentication Agent and Registrar
By:_________________________________
AUTHORIZED SIGNATURE
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