EXHIBIT 4.8
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AMENDED AND RESTATED
TRUST AGREEMENT
Among
ALLEGIANT BANCORP, INC.
(as Depositor)
BANKERS TRUST COMPANY
(as Property Trustee)
BANKERS TRUST (DELAWARE)
(as Delaware Trustee)
▇▇▇▇▇ ▇. ▇▇▇▇▇
(as Administrator)
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
(as Administrator)
dated as of __________, 2001
ALLEGIANT CAPITAL TRUST II
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ALLEGIANT CAPITAL TRUST II
Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Trust Agreement
Act Section Section
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Section 310 (a)(1)........................................................................................8.7
(a)(2)........................................................................................8.7
(a)(3)........................................................................................8.9
(a)(4).................................................................................2.7(a)(ii)
(b).................................................................................8.8, 10.10(b)
Section 311 (a)................................................................................8.13, 10.10(b)
(b)................................................................................8.13, 10.10(b)
Section 312 (a)......................................................................................10.10(b)
(b).................................................................................10.10(b), (f)
(c)...........................................................................................5.7
Section 313 (a).......................................................................................8.15(a)
(a)(4)...................................................................................10.10(c)
(b).............................................................................8.15(c), 10.10(c)
(c)................................................................................10.8, 10.10(c)
(d)......................................................................................10.10(c)
Section 314 (a)................................................................................8.16, 10.10(d)
(b)................................................................................Not Applicable
(c)(1)........................................................................8.17, 10.10(d), (e)
(c)(2)........................................................................8.17, 10.10(d), (e)
(c)(3)........................................................................8.17, 10.10(d), (e)
(e)................................................................................8.17, 10.10(e)
Section 315 (a)........................................................................................8.1(d)
(b)...........................................................................................8.2
(c)........................................................................................8.1(c)
(d)........................................................................................8.1(d)
(e)................................................................................Not Applicable
Section 316 (a)................................................................................Not Applicable
(a)(1)(A)..........................................................................Not Applicable
(a)(1)(B)..........................................................................Not Applicable
(a)(2).............................................................................Not Applicable
(b)..........................................................................................5.13
(c)...........................................................................................6.7
Section 317 (a)(1).............................................................................Not Applicable
(a)(2).......................................................................................8.14
(b)..........................................................................................5.10
Section 318 (a)......................................................................................10.10(a)
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Trust Agreement.
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS.....................................................................................1
Section 1.1. Definitions............................................................................1
ARTICLE II CONTINUATION OF THE ISSUER TRUST...............................................................11
Section 2.1. Name..................................................................................11
Section 2.2. Office of the Delaware Trustee; Principal Place of Business...........................12
Section 2.3. Initial Contribution of Trust Property; Organizational Expenses.......................12
Section 2.4. Issuance of the Preferred Securities..................................................12
Section 2.5. Issuance of the Common Securities; Subscription and Purchase of Junior
Subordinated Debentures...............................................................12
Section 2.6. Declaration of Trust..................................................................13
Section 2.7. Authorization to Enter into Certain Transactions......................................13
Section 2.8. Assets of Trust.......................................................................16
Section 2.9. Title to Trust Property...............................................................16
ARTICLE III PAYMENT ACCOUNT................................................................................17
Section 3.1. Payment Account.......................................................................17
ARTICLE IV DISTRIBUTIONS; REDEMPTION......................................................................17
Section 4.1. Distributions.........................................................................17
Section 4.2. Redemption............................................................................19
Section 4.3. Subordination of Common Securities....................................................20
Section 4.4. Payment Procedures....................................................................21
Section 4.5. Tax Returns and Reports...............................................................21
Section 4.6. Payment of Taxes, Duties, Etc. of the Issuer Trust....................................22
Section 4.7. Payments under Indenture or Pursuant to Direct Actions................................22
Section 4.8. Liability of the Holder of Common Securities..........................................22
ARTICLE V TRUST SECURITIES CERTIFICATES..................................................................22
Section 5.1. Initial Ownership.....................................................................22
Section 5.2. The Trust Securities Certificates.....................................................22
Section 5.3. Execution and Delivery of Trust Securities Certificates...............................23
Section 5.4. Global Preferred Security.............................................................23
Section 5.5. Registration of Transfer and Exchange Generally; Certain Transfers and
Exchanges; Preferred Securities Certificates..........................................24
Section 5.6. Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates....................25
Section 5.7. Persons Deemed Holders................................................................26
Section 5.8. Access to List of Holders' Names and Addresses........................................26
Section 5.9. Maintenance of Office or Agency.......................................................26
Section 5.10. Appointment of Paying Agent...........................................................26
Section 5.11. Ownership of Common Securities by Depositor...........................................27
Section 5.12. Notices to Clearing Agency............................................................27
Section 5.13. Rights of Holders.....................................................................27
ARTICLE VI ACTS OF HOLDERS; MEETINGS; VOTING..............................................................29
Section 6.1. Limitations on Holder's Voting Rights.................................................29
Section 6.2. Notice of Meetings....................................................................30
Section 6.3. Meetings of Holders...................................................................30
Section 6.4. Voting Rights.........................................................................30
Section 6.5. Proxies, etc..........................................................................30
Section 6.6. Holder Action by Written Consent......................................................31
Section 6.7. Record Date for Voting and Other Purposes.............................................31
Section 6.8. Acts of Holders.......................................................................31
Section 6.9. Inspection of Records.................................................................32
ARTICLE VII REPRESENTATIONS AND WARRANTIES.................................................................32
Section 7.1. Representations and Warranties of the Property Trustee and the Delaware Trustee.......32
Section 7.2. Representations and Warranties of the Depositor.......................................33
ARTICLE VIII THE ISSUER TRUSTEES; THE ADMINISTRATORS........................................................33
Section 8.1. Certain Duties and Responsibilities...................................................33
Section 8.2. Certain Notices.......................................................................36
Section 8.3. Certain Rights of Property Trustee....................................................36
Section 8.4. Not Responsible for Recitals or Issuance of Securities................................37
Section 8.5. May Hold Securities...................................................................37
Section 8.6. Compensation; Indemnity; Fees.........................................................37
Section 8.7. Corporate Property Trustee Required; Eligibility of Trustees and Administrators.......38
Section 8.8. Conflicting Interests.................................................................39
Section 8.9. Co-Trustees and Separate Trustee......................................................39
Section 8.10. Resignation and Removal; Appointment of Successor.....................................40
Section 8.11. Acceptance of Appointment by Successor................................................41
Section 8.12. Merger, Conversion, Consolidation or Succession to Business...........................42
Section 8.13. Preferential Collection of Claims Against Depositor or Issuer Trust...................42
Section 8.14. Trustee May File Proofs of Claim......................................................42
Section 8.15. Reports by Property Trustee...........................................................43
Section 8.16. Reports to the Property Trustee.......................................................43
Section 8.17. Evidence of Compliance with Conditions Precedent......................................43
Section 8.18. Number of Issuer Trustees.............................................................43
Section 8.19. Delegation of Power...................................................................44
Section 8.20. Appointment of Administrators.........................................................44
ARTICLE IX DISSOLUTION, LIQUIDATION AND MERGER............................................................45
Section 9.1. Dissolution Upon Expiration Date......................................................45
Section 9.2. Early Dissolution.....................................................................45
Section 9.3. Termination...........................................................................45
Section 9.4. Liquidation...........................................................................45
Section 9.5. Mergers, Consolidations, Amalgamations or Replacements of the Issuer Trust............47
Section 9.6. Listing of the Junior Subordinated Debentures.........................................47
ARTICLE X MISCELLANEOUS PROVISIONS.......................................................................48
Section 10.1. Limitation of Rights of Holders.......................................................48
Section 10.2. Amendment.............................................................................48
Section 10.3. Separability..........................................................................49
Section 10.4. Governing Law.........................................................................49
Section 10.5. Payments Due on Non-Business Day......................................................49
Section 10.6. Successors and Assigns................................................................49
Section 10.7. Headings..............................................................................50
Section 10.8. Reports, Notices and Demands..........................................................50
Section 10.9. Agreement Not to Petition.............................................................50
Section 10.10. Trust Indenture Act; Conflict with Trust Indenture Act................................51
Section 10.11. Acceptance of Terms of Trust Agreement, Guarantee and Indenture.......................52
Section 10.12. Counterparts..........................................................................52
EXHIBITS
Exhibit A Certificate of Trust
Exhibit B Form of Certificate Depositary Agreement
Exhibit C Form of Common Securities Certificate
Exhibit D Form of Preferred Securities Certificate
AMENDED AND RESTATED TRUST AGREEMENT
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THIS AMENDED AND RESTATED TRUST AGREEMENT, dated as of ___________
__, 2001 (this "Trust Agreement"), is among (a) ALLEGIANT BANCORP, INC., a
Missouri corporation (including any successors or assigns, the "Depositor"),
(b) BANKERS TRUST COMPANY, a New York banking corporation, as property
trustee (in such capacity, the "Property Trustee" and, in its separate
corporate capacity and not in its capacity as Property Trustee, the "Bank"),
(c) BANKERS TRUST (DELAWARE), a Delaware banking corporation, as Delaware
trustee (the "Delaware Trustee") (the Property Trustee and the Delaware
Trustee are referred to collectively herein as the "Issuer Trustees"); (d)
▇▇▇▇▇ ▇. ▇▇▇▇▇, an individual, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, an individual, each of
whose address is c/o the Depositor (each an "Administrator" and,
collectively, the "Administrators" and together with the Issuer Trustees,
the "Trustees"); and (e) the several Holders, as hereinafter defined.
RECITALS
WHEREAS, the Depositor and certain of the Trustees have heretofore
duly declared and established a business trust pursuant to the Delaware
Business Trust Act by the entering into a certain Declaration of Trust,
dated as of June 8, 2001 (the "Original Trust Agreement"), and by the
execution and filing by the Delaware Trustee with the Secretary of State of
the State of Delaware of the Certificate of Trust, filed on June 8, 2001
(the "Certificate of Trust"), a copy of which is attached hereto as Exhibit A;
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and
WHEREAS, the Depositor and the Delaware Trustee desire to amend and
restate the Original Trust Agreement in its entirety as set forth herein to
provide for, among other things, (a) the issuance of the Common Securities
by the Issuer Trust to the Depositor, (b) the issuance and sale of the
Preferred Securities by the Issuer Trust pursuant to the Underwriting
Agreement, (c) the acquisition by the Issuer Trust from the Depositor of all
of the right, title and interest in the Junior Subordinated Debentures and
(d) the appointment of the Property Trustee and the Administrators.
NOW THEREFORE, in consideration of the agreements and obligations
set forth herein and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, each party, for the
benefit of the other parties and for the benefit of the Holders, hereby
amends and restates the Original Trust Agreement in its entirety and agrees,
intending to be legally bound, as follows:
ARTICLE I
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DEFINITIONS
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Section 1.1. Definitions. For all purposes of this Trust
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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 and include the plural as well as the
singular;
(b) all other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) the words "include," "includes" and "including" shall be
deemed to be followed by the phrase "without limitation";
(d) all accounting terms used but not defined herein have the
meanings assigned to them in accordance with United States generally
accepted accounting principles as in effect at the time of computation;
(e) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may
be, of this Trust Agreement;
(f) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Trust Agreement as a whole and not to
any particular Article, Section or other subdivision; and
(g) all references to the date the Preferred Securities were
originally issued shall refer to the date the ____% Preferred Securities
were originally issued.
"25% Capital Limitation" means the limitation imposed by the
Federal Reserve that the proceeds of certain qualifying securities similar
to the Trust Securities will qualify as Tier 1 capital of the Depositor up
to an amount not to exceed, when taken together with all cumulative
preferred stock of the Depositor, if any, 25% of the Depositor's Tier 1
capital, and any subsequent or successor limitation adopted by the Federal
Reserve.
"Act" has the meaning specified in Section 6.8.
"Additional Amount" means, with respect to Trust Securities of a
given Liquidation Amount and/or for a given period, the amount of Additional
Interest paid by the Depositor on a Like Amount of Junior Subordinated
Debentures for such period.
"Additional Interest" has the meaning specified in Section 1.1 of
the Indenture.
"Additional Sums" has the meaning specified in Section 10.6 of the
Indenture.
"Administrators" means each Person appointed in accordance with
Section 8.20 solely in such Person's capacity as Administrator of the Issuer
Trust heretofore formed and continued hereunder and not in such Person's
individual capacity, or any successor Administrator appointed as herein
provided; with the initial Administrators being ▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means
the power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract
or otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Preferred Security or beneficial interest
therein, the rules and procedures of the Depositary for such Preferred
Security, in each case to the extent applicable to such transaction and as
in effect from time to time.
2
"Bank" has the meaning specified in the preamble to this Trust
Agreement.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having
jurisdiction in the premises judging such Person a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization, arrangement,
adjudication or composition of or in respect of such Person under any
applicable federal or state bankruptcy, insolvency, reorganization or other
similar law, or appointing a receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of such Person or of any
substantial part of its property or ordering the winding up or liquidation
of its affairs, and the continuance of any such decree or order unstayed and
in effect for a period of 60 consecutive days; or
(b) the institution by such Person of proceedings to be
adjudicated a bankrupt or insolvent, or the consent by it to the institution
of bankruptcy or insolvency proceedings against it, or the filing by it of a
petition or answer or consent seeking reorganization or relief under any
applicable federal or state bankruptcy, insolvency, reorganization or other
similar law, or the consent by it to the filing of any such petition or to
the appointment of a receiver, liquidator, assignee, trustee, sequestrator
(or similar official) of such Person or of any substantial part of its
property or the making by it of an assignment for the benefit of creditors,
or the admission by it in writing of its inability to pay its debts
generally as they become due and its willingness to be adjudicated a
bankrupt, or the taking of corporate action by such Person in furtherance of
any such action.
"Bankruptcy Laws" has the meaning specified in Section 10.9.
"Board of Directors" means the board of directors of the Depositor
or the Executive Committee of the board of directors of the Depositor (or
any other committee of the board of directors of the Depositor performing
similar functions) or, for purposes of this Trust Agreement, a committee
designated by the board of directors of the Depositor (or any such
committee), comprised of two or more members of the board of directors of
the Depositor or officers of the Depositor, or both.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Depositor to have been duly
adopted by the Depositor's Board of Directors, or such committee of the
Board of Directors or officers of the Depositor to which authority to act on
behalf of the Board of Directors has been delegated, and to be in full force
and effect on the date of such certification, and delivered to the Issuer
Trustees.
"Business Day" means a day other than (a) a Saturday or Sunday, (b)
a day on which banking institutions in the State of Missouri or in the City
of New York are authorized or required by law or executive order to remain
closed or (c) a day on which the Property Trustee's Corporate Trust Office
or the Delaware Trustee's Corporate Trust Office or the Corporate Trust
Office of the Debenture Trustee is closed for business.
"Capital Treatment Event" means the receipt by the Depositor and
the Issuer Trust of the Opinion of Counsel, rendered by counsel experienced
in such matters, that, as a result of the occurrence of any amendment to, or
change (including any announced prospective change) in, the laws (or any
rules or regulations thereunder) of the United States or any political
subdivision thereof or therein, or as a result of any official or
administrative pronouncement or action or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
such pronouncement, action or decision is announced on or after the date of
the issuance of the Preferred Securities of the
3
Issuer Trust, there is more than an insubstantial risk that the Depositor
will not be entitled to treat an amount equal to the Liquidation Amount of
such Preferred Securities as "Tier 1 Capital" (or the then equivalent
thereof), except as otherwise restricted under the 25% Capital Limitation,
for purposes of the risk-based capital adequacy guidelines of the Federal
Reserve, as then in effect and applicable to the Depositor; provided, that
the Depositor or the Issuer 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 Issuer Trust, as appropriate, shall have
become aware of the possible occurrence of any such event.
"Cede" means Cede & Co.
"Certificate Depositary Agreement" means the agreement among the
Issuer Trust, the Depositor and the Depositary, as the initial Clearing
Agency, dated as of the Closing Date, substantially in the form attached
hereto as Exhibit B, as the same may be amended and supplemented from time
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to time.
"Certificate of Trust" has the meaning specified in the preamble to
this Trust Agreement.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act. The Depositary shall be
the initial Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with
the Clearing Agency.
"Closing Date" means the Time of Delivery for the Firm Securities,
which date is also the date of execution and delivery of this Trust
Agreement.
"Code" means the Internal Revenue Code of 1986, as amended or any
successor statute, in each case as amended from time to time.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act or, if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"Common Securities Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached hereto as
Exhibit C.
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"Common Security" means an undivided beneficial interest in the
assets of the Issuer Trust, having a Liquidation Amount of $25 and having
the rights provided therefor in this Trust Agreement, including the right to
receive Distributions and a Liquidation Distribution as provided herein.
"Corporate Trust Office" means (a) with respect to the Property
Trustee or the Debenture Trustee, the principal office of the Property
Trustee located in the City of New York, New York, which at the time of the
execution of this Trust Agreement is located at Four ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; Attention: Corporate Trust and Agency
Services, and (b) with respect to the Delaware Trustee, the principal office
of the Delaware Trustee located at E.A. Delle Donne Corporate Center,
▇▇▇▇▇▇▇▇▇▇ Building, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇-▇▇▇▇.
"Date of Delivery" shall have the meaning provided in the
Underwriting Agreement.
"Debenture Event of Default" means an "Event of Default" as defined
in the Indenture.
4
"Debenture Redemption Date" means, with respect to any Junior
Subordinated Debentures to be redeemed under the Indenture, the date fixed
for redemption of such Junior Subordinated Debentures under the Indenture.
"Debenture Trustee" means Bankers Trust Company, a New York banking
corporation and any successor, as trustee under the Indenture.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. 3801, et seq., as it may be amended from time to
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time.
"Delaware Trustee" means the corporation identified as the
"Delaware Trustee" in the preamble to this Trust Agreement solely in its
capacity as Delaware Trustee of the Issuer Trust continued hereunder and not
in its individual capacity, or its successor in interest in such capacity,
or any successor trustee appointed as herein provided.
"Depositary" means The Depository Trust Company or any successor
thereto.
"Depositor" has the meaning specified in the preamble to this Trust
Agreement.
"Direct Action" has the meaning specified in Section 5.13(c).
"Distribution Date" has the meaning specified in Section 4.1(a)(i).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.1.
"Early Termination Event" has the meaning specified in Section 9.2.
"Event of Default" means any one of the following events (whatever
the reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) the occurrence of a Debenture Event of Default;
(b) default by the Issuer Trust in the payment of any
Distribution when it becomes due and payable, and continuation of such
default for a period of 30 days;
(c) default by the Issuer Trust in the payment of any Redemption
Price of any Trust Security when it becomes due and payable;
(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 Issuer Trustees and
the Depositor by the Holders of at least 25% in aggregate Liquidation Amount
of the Outstanding Preferred Securities, a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
5
(e) the occurrence of any Bankruptcy Event with respect to the
Property Trustee or all or substantially all of its property if a successor
Property Trustee has not been appointed within a period of 60 days thereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and any successor statute thereto, in each case as amended from
time to time.
"Expiration Date" has the meaning specified in Section 9.1.
"Extension Period" has the meaning specified in Section 4.1(a)(iii).
"Federal Reserve" means the Board of Governors of the Federal
Reserve System.
"Firm Securities" means an aggregate Liquidation Amount of
$30,000,000 of the Issuer Trust's _____% cumulative preferred securities.
"Global Preferred Securities Certificate" means a Preferred
Securities Certificate evidencing ownership of Global Preferred Securities.
"Global Preferred Security" means a Preferred Security, the
ownership and transfers of which shall be made through book entries by a
Clearing Agency as described in Section 5.4.
"Guarantee Agreement" means the Guarantee Agreement executed and
delivered by the Depositor and Bankers Trust Company, as guarantee trustee,
contemporaneously with the execution and delivery of this Trust Agreement,
for the benefit of the Holders of the Preferred Securities, as amended from
time to time.
"Holder" means a Person in whose name a Trust Security or Trust
Securities is registered in the Securities Register; any such Person shall
be a beneficial owner within the meaning of the Delaware Business Trust Act.
"Indemnified Person" has the meaning specified in Section 8.6(c).
"Indenture" means the Junior Subordinated Indenture, dated as of
_____ __, 2001, between the Depositor and the Debenture Trustee (as amended
or supplemented from time to time) relating to the issuance of the Junior
Subordinated Debentures.
"Investment Company Act" means the Investment Company Act of 1940,
as amended, and any successor statute, in each case as amended from time to
time.
"Investment Company Event" means the receipt by the Depositor and
the Issuer Trust of an Opinion of Counsel, rendered by counsel experienced
in such matters, to the effect that, as a result of the occurrence of a
change in law or regulation or a written change in interpretation or
application of law or regulation by any legislative body, court,
governmental agency or regulatory authority, the Issuer Trust is considered
an "investment company" that is required to be registered under the
Investment Company Act, which change becomes effective on or after the date
of the issuance of the Preferred Securities; provided, however, that the
Depositor or the Issuer Trust shall have requested and received an Opinion
of
6
Counsel with regards to such matters within a reasonable period of time
after the Depositor or the Issuer Trust, as appropriate, shall have become
aware of the possible occurrence of any such event.
"Issuer Trust" means Allegiant Capital Trust II.
"Issuer Trustees" means, collectively, the Property Trustee and the
Delaware Trustee.
"Junior Subordinated Debentures" means the aggregate principal
amount of the Depositor's _____% junior subordinated deferrable interest
debentures, due _____ __, 2031 which date may be shortened once at any time
by the Depositor to any date not earlier than _____ __, 2006, issued
pursuant to the Indenture.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed
of trust, adverse ownership interest, hypothecation, assignment, security
interest or preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of Trust
Securities, Trust Securities having a Liquidation Amount equal to that
portion of the principal amount of Junior Subordinated Debentures to be
contemporaneously redeemed in accordance with the Indenture, allocated to
the Common Securities and to the Preferred Securities based upon the
relative Liquidation Amounts of such classes and (b) with respect to a
distribution of Junior Subordinated Debentures to Holders of Trust
Securities in connection with a dissolution or liquidation of the Issuer
Trust, Junior Subordinated Debentures having a principal amount equal to the
Liquidation Amount of the Trust Securities of the Holder to whom such Junior
Subordinated Debentures are distributed; provided, in the case of clause (b)
that each Junior Subordinated Debenture so distributed shall carry accrued
and unpaid interest in an amount equal to the amount of accrued and unpaid
interest then due on such Junior Subordinated Debentures.
"Liquidation Amount" means the stated amount of $25 per Trust Security.
"Liquidation Date" means the date on which Junior Subordinated
Debentures or the Liquidation Distributions are to be distributed to Holders
of Trust Securities in connection with a dissolution and liquidation of the
Issuer Trust pursuant to Section 9.4.
"Liquidation Distribution" has the meaning specified in Section 9.4(d).
"Majority in Liquidation Amount of the Preferred Securities" or
"Majority in Liquidation Amount of the Common Securities" means, except as
provided by the Trust Indenture Act, Preferred Securities or Common
Securities, as the case may be, representing more than 50% of the aggregate
Liquidation Amount of all then Outstanding Preferred Securities or Common
Securities, as the case may be.
"Officers' Certificate" means, a certificate signed by the Chairman
of the Board, Chief Executive Officer, President or any Vice President and
by the Chief Financial Officer, the Treasurer, an Associate Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary, of the
Depositor, and delivered to the appropriate Issuer Trustee. Any Officers'
Certificate delivered with respect to compliance with a condition or
covenant provided for in this Trust Agreement shall include:
7
(a) a statement by each officer signing the Officers'
Certificate that such officer has read the covenant or condition and the
definitions relating thereto;
(b) a brief statement of the nature and scope of the examination
or investigation undertaken by such officer in rendering the Officers'
Certificate;
(c) a statement that such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of independent outside
counsel for the Issuer Trust or the Depositor.
"Option Securities" means an aggregate Liquidation Amount of up to
$4,500,000 of the Issuer Trust's _____% cumulative preferred securities,
issuable at any time and from time to time to the Underwriters at their
option, exercisable within 30 days after the date of the Prospectus, solely
to cover over-allotments, if any.
"Option Preferred Securities Certificate" means the certificate
evidencing ownership of Preferred Securities issued if the Underwriters
exercise their option described in Section 2.4, which certificate shall be
substantially in the form attached hereto as Exhibit D.
---------
"Original Trust Agreement" has the meaning specified in the
preamble to this Trust Agreement.
"Outstanding," with respect to Trust Securities, means, as of the
date of determination, all Trust Securities theretofore executed and
delivered under this Trust Agreement, except:
(a) Trust Securities theretofore canceled by the Property Trustee
or delivered to the Property Trustee for cancellation;
(b) Trust Securities for whose payment or redemption money in
the necessary amount has been theretofore deposited with the Property
Trustee or any Paying Agent for the Holders of such Preferred Securities,
provided that if such Trust Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Trust Agreement; and
(c) Trust Securities which have been paid or in exchange for
or in lieu of which other Trust Securities have been executed and delivered
pursuant to Sections 5.4, 5.5, and 5.6; provided, however, that in
determining whether the Holders of the requisite Liquidation Amount of the
Outstanding Preferred Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Preferred
Securities owned by the Depositor, any Issuer Trustee, any Administrator or
any Affiliate of the Depositor or any Issuer Trustee shall be disregarded
and deemed not to be Outstanding, except that (i) in determining whether any
Issuer Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Preferred
Securities that such Issuer Trustee or such Administrator, as the case may
be, knows to be so owned shall be so disregarded
8
and (ii) the foregoing shall not apply at any time when all of the
outstanding Preferred Securities are owned by the Depositor, one or more of
the Issuer Trustees, one or more of the Administrators and/or any such
Affiliate. Preferred Securities so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Administrators the pledgee's right so to act with
respect to such Preferred Securities and that the pledgee is not the
Depositor or any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner of Global
Preferred Securities as reflected in the records of the Clearing Agency or,
if a Clearing Agency Participant is not the Owner, then as reflected in the
records of a Person maintaining an account with such Clearing Agency,
directly or indirectly, in accordance with the rules of such Clearing
Agency.
"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 5.10 and shall initially be the Property Trustee.
"Payment Account" means a segregated non-interest-bearing corporate
trust account maintained by the Property Trustee in its trust department for
the benefit of the Holders in which all amounts paid in respect of the
Junior Subordinated Debentures will be held and from which the Property
Trustee, through the Paying Agent, shall make payments to the Holders in
accordance with Sections 4.1 and 4.2.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, company, limited liability company, trust, unincorporated
organization or government or any agency or political subdivision thereof,
or any other entity of whatever nature.
"Preferred Securities Certificate" means a certificate evidencing
ownership of Preferred Securities, substantially in the form attached hereto
as Exhibit D.
---------
"Preferred Security" means a Firm Security or an Option Security,
each constituting a preferred undivided beneficial interest in the assets of
the Issuer Trust, having a Liquidation Amount of $25 and having the rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Property Trustee" means the Person identified as the "Property
Trustee" in the preamble to this Trust Agreement solely in its capacity as
Property Trustee of the Issuer Trust 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.
"Prospectus" means the final prospectus covering the Preferred
Securities, Junior Subordinated Debentures and the Guarantee Agreement.
"Redemption Date" means, with respect to any Trust Security to be
redeemed, the date fixed for such redemption by or pursuant to this Trust
Agreement; provided that each Junior Subordinated Debenture Redemption Date
and the stated maturity of the Junior Subordinated Debentures shall be a
Redemption Date for a Like Amount of Trust Securities, including, but not
limited to, any date of redemption pursuant to the occurrence of any Special
Event.
"Redemption Price" means with respect to a redemption of any Trust
Security, the Liquidation Amount of such Trust Security, together with
accumulated but unpaid Distributions to but excluding the
9
date fixed for redemption, plus the related amount of the premium, if any,
paid by the Depositor upon the concurrent redemption of a Like Amount of
Junior Subordinated Debentures.
"Relevant Trustee" has the meaning specified in Section 8.10.
"Responsible Officer" when used with respect to the Property
Trustee means any officer assigned to the Corporate Trust Office, including
any managing director, director, vice president, assistant vice president,
associate vice president or any other officer of the Property Trustee
customarily performing functions similar to those performed by any of the
above designated officers and having direct responsibility for the
administration of the Indenture, and also, with respect to a particular
matter, any other officer to whom such matter is referred because of such
officer's knowledge of and familiarity with the particular subject.
"Rights Plan" means any plan of the Depositor providing for the
issuance by the Depositor to all holders of its common stock, entitling the
holders thereof to subscribe for or purchase shares of any class or series
of capital stock of the Depositor which rights (a) are deemed to be
transferred with such shares of such common stock, (b) are not exercisable,
and (c) are also issued in respect of future issuances of such common stock,
in each case until the occurrence of a specified event or events.
"Securities Act" means the Securities Act of 1933, as amended, and
any successor statute thereto, in each case as amended from time to time.
"Securities Register" and "Securities Registrar" have the
respective meanings specified in Section 5.5.
"Special Event" means any Tax Event, Capital Treatment Event or
Investment Company Event.
"Successor Securities Certificate" of any particular Preferred
Securities Certificate means every Preferred Securities Certificate issued
after, and evidencing all or a portion of the same beneficial interest in
the Issuer Trust as that evidenced by, such particular Preferred Securities
Certificate; and, for the purposes of this definition, any Preferred
Securities Certificate executed and delivered under Section 5.6 in exchange
for or in lieu of a mutilated, destroyed, lost or stolen Preferred
Securities Certificate shall be deemed to evidence the same beneficial
interest in the Issuer Trust as the mutilated, destroyed, lost or stolen
Preferred Securities Certificate.
"Successor Security" has the meaning specified in Section 9.5.
"Tax Event" means the receipt by the Depositor and the Issuer Trust
of an Opinion of Counsel experienced in such matters to the effect that, as
a result of any amendment to, or change (including any announced prospective
change) in, the laws (or any regulations thereunder) of the United States or
any political subdivision or taxing authority thereof or therein, or as a
result of any official or administrative pronouncement or action or judicial
decision interpreting or applying such laws or regulations, which amendment
or change is effective or which pronouncement, action or decision is
announced on or after the date of issuance of the Preferred Securities,
there is more than an insubstantial risk that (a) the Issuer Trust is, or
will be within 90 days of the delivery of such Opinion of Counsel, subject
to United States federal income tax with respect to income received or
accrued on the Junior Subordinated Debentures, (b) interest payable by the
Depositor on the Junior Subordinated Debentures is not, or within 90 days of
the delivery of such Opinion of Counsel will not be, deductible by the
Depositor, in whole or in part, for United States federal income tax
purposes, or (c) the Issuer Trust is, or will be within 90 days of the
10
delivery of such Opinion of Counsel, subject to more than a de minimis
amount of other taxes, duties or other governmental charges; provided,
however, that the Depositor or the Issuer Trust shall have received an
Opinion of Counsel with regard to such matters within a reasonable period of
time after the Depositor or the Issuer Trust, as appropriate, shall have
become aware of the possible occurrence of any such event.
"Time of Delivery" means 8:30 a.m. Central Time, either (a) with
respect to the Firm Securities or the Common Securities, on the third
Business Day (unless postponed in accordance with the provisions of Section
10 of the Underwriting Agreement), or, if pricing occurs after 4:30 p.m.
(Eastern Time) on any given day, the fourth business day following the date
of execution of the Underwriting Agreement, or such other time as shall be
agreed upon by the Underwriters, the Issuer Trust and the Depositor, or (b)
with respect to the Option Securities, the applicable Date of Delivery.
"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 (a) all Exhibits hereto, and (b) for
all purposes of this Amended and Restated 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 Amended and Restated
Trust Agreement and any modification, amendment or supplement, respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended by the Trust Indenture Reform Act of 1990, or any successor statute,
in each case as amended from time to time.
"Trust Property" means (a) the Junior Subordinated Debentures, (b)
any cash on deposit in, or owing to, the Payment Account, and (c) all
proceeds and rights in respect of the foregoing and any other property and
assets for the time being held or deemed to be held by the Property Trustee
pursuant to the trusts of this Trust Agreement.
"Trust Securities Certificate" means any one of the Common
Securities Certificates or the Preferred Securities Certificates.
"Trust Security" means any one of the Common Securities or the
Preferred Securities.
"Underwriters" has the meaning specified in the Underwriting
Agreement.
"Underwriting Agreement" means the Underwriting Agreement, dated
September __, 2001, among the Issuer Trust, the Depositor and the
Underwriters, as the same may be amended from time to time.
ARTICLE II
----------
CONTINUATION OF THE ISSUER TRUST
Section 2.1. Name. The Issuer Trust continued hereby shall be
----
known as "Allegiant Capital Trust II," as such name may be modified from
time to time by the Administrators following written notice to the Holders
of Trust Securities and the other Issuer Trustees, in which name the
Administrators and the Issuer Trustees may engage in the transactions
contemplated hereby, make and execute contracts and other instruments on
behalf of the Issuer Trust and ▇▇▇ and be sued.
11
Section 2.2. Office of the Delaware Trustee; Principal Place of
--------------------------------------------------
Business. The address of the Delaware Trustee in the State of Delaware is
--------
Bankers Trust (Delaware), E.A. Delle Donne Corporate Center, ▇▇▇▇▇▇▇▇▇▇
Building, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇-▇▇▇▇,
Attention: Corporate Trust Administration, or such other address in the
State of Delaware as the Delaware Trustee may designate by written notice to
the Holders and the Depositor. The principal executive office of the Issuer
Trust is in care of Allegiant Bancorp, Inc., ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇. ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Secretary.
Section 2.3. Initial Contribution of Trust Property;
---------------------------------------
Organizational Expenses. The Issuer Trustees acknowledge receipt in trust
-----------------------
from the Depositor in connection with this Trust Agreement of the sum of
$10, which constitutes the initial Trust Property. The Depositor shall pay
all organizational expenses of the Issuer Trust as they arise or shall, upon
request of any Issuer Trustee, promptly reimburse such Issuer Trustee for
any such reasonable expenses paid by such Issuer Trustee. The Depositor
shall make no claim upon the Trust Property for the payment of such
expenses.
Section 2.4. Issuance of the Preferred Securities. On _____,
------------------------------------
__ 2001, the Depositor, both on its own behalf and on behalf of the Issuer
Trust pursuant to the Original Trust Agreement, executed and delivered the
Underwriting Agreement. Contemporaneously with the execution and delivery of
this Trust Agreement, an Administrator, on behalf of the Issuer Trust, shall
manually execute in accordance with Section 5.3 and the Property Trustee
shall authenticate in accordance with Section 5.3 and deliver to the
Underwriters, Firm Securities Certificates, registered in the names
requested by the Underwriters, in an aggregate amount of 1,200,000 Firm
Securities having an aggregate Liquidation Amount of $30,000,000, against
receipt of the aggregate purchase price of such Preferred Securities of
$30,000,000, by the Property Trustee.
At the option of the Underwriters, at any time and from time to
time within 30 days of the date of the Prospectus, and solely for the
purpose of covering an over-allotment, if any, an Administrator, on behalf
of the Issuer Trust, shall manually execute in accordance with Section 5.3
and the Property Trustee shall authenticate in accordance with Section 5.3
and deliver to the Underwriters, Option Preferred Securities Certificates,
registered in the names requested by the Underwriters, representing up to
180,000 Option Securities in the aggregate having an aggregate Liquidation
Amount of up to $4,500,000 against receipt of the aggregate purchase price
of such Option Securities of up to $4,500,000 by the Property Trustee.
Section 2.5. Issuance of the Common Securities; Subscription
-----------------------------------------------
and Purchase of Junior Subordinated Debentures. Contemporaneously with the
----------------------------------------------
execution and delivery of this Trust Agreement, an Administrator, on behalf
of the Issuer Trust, shall execute in accordance with Section 5.3 and the
Property Trustee shall authenticate in accordance with Section 5.3 and
deliver to the Depositor, Common Securities Certificates, registered in the
name of the Depositor, in an aggregate amount of 46,754 Common Securities
having an aggregate Liquidation Amount of $1,168,850 against receipt by the
Property Trustee of the aggregate purchase price of such Common Securities
of $1,168,850. In the event of any exercise from time to time of an
over-allotment option requiring issuance of additional Option Preferred
Securities Certificates, as described in Section 2.4 above, a proportionate
number of additional Common Securities Certificates, with corresponding
aggregate Liquidation Amount, shall be delivered to the Depositor against
receipt by the Property Trustee of the aggregate purchase price therefor.
Contemporaneously with the executions, and deliveries of Common Securities
Certificates and any Preferred Securities Certificates, an Administrator, on
behalf of the Issuer Trust, shall subscribe for and purchase from the
Depositor, corresponding amounts of Junior Subordinated Debentures,
registered in the name of the Issuer Trust and having an aggregate principal
amount equal to $31,168,850, plus, in the event
12
of any exercise from time to time of the over-allotment option (a) a
corresponding additional number of Junior Subordinated Debentures not
exceeding an aggregate principal amount of $4,500,000 and (b) a
corresponding number of Junior Subordinated Debentures not exceeding an
aggregate principal amount equal to the aggregate Liquidation Amount of
Common Securities issued pursuant to such exercise from time to time of an
over-allotment option; and, in satisfaction of the purchase price for such
Junior Subordinated Debentures, the Property Trustee, on behalf of the
Issuer Trust, shall deliver to the Depositor the sum of $31,168,850, plus any
corresponding over-allotment option amount(s) (being the sum of the amounts
delivered to the Property Trustee pursuant to (a) the second sentence the
first paragraph and the second paragraph of Section 2.4 and (b) the first
and second sentences of this Section 2.5) and receive the Junior
Subordinated Debentures on behalf of the Issuer Trust.
Section 2.6. Declaration of Trust. The exclusive purposes and
--------------------
functions of the Issuer Trust are to (a) issue and sell Trust Securities and
use the proceeds from such sale to acquire the Junior Subordinated
Debentures, and (b) engage in only those other activities necessary,
convenient or incidental thereto. The Depositor hereby appoints the Issuer
Trustees as trustees of the Issuer Trust, to have all the rights, powers and
duties to the extent set forth herein, and the Issuer Trustees hereby accept
such appointment. The Property Trustee hereby declares that it will hold the
Trust Property in trust upon and subject to the conditions set forth herein
for the benefit of the Issuer Trust and the Holders. The Depositor hereby
appoints the Administrators (as agents of the Issuer Trust), with such
Administrators having all rights, powers and duties set forth herein with
respect to accomplishing the purposes of the Issuer Trust, and the
Administrators hereby accept such appointment; provided, however, that it is
the intent of the parties hereto that such Administrators shall not be
trustees or fiduciaries with respect to the Issuer Trust and this Trust
Agreement shall be construed in a manner consistent with such intent. The
Property Trustee shall have the right, power and authority to perform those
duties assigned to the Administrators. The Delaware Trustee shall not be
entitled to exercise any powers, nor shall the Delaware Trustee have any of
the duties and responsibilities, of the Property Trustee or the
Administrators set forth herein. The Delaware Trustee shall be one of the
trustees of the Issuer Trust for the sole and limited purpose of fulfilling
the requirements of Section 3807 of the Delaware Business Trust Act and for
taking such actions as are required to be taken by a Delaware trustee under
the Delaware Business Trust Act.
Section 2.7. Authorization to Enter into Certain Transactions.
------------------------------------------------
(a) The Issuer Trustees and the Administrators shall conduct
the affairs of the Issuer Trust in accordance with the terms of this Trust
Agreement. Subject to the limitations set forth in paragraph (b) of this
Section 2.7 and in accordance with the following provisions (i) and (ii),
the Issuer Trustees and the Administrators shall act as follows:
(i) Each Administrator shall have the power and authority
and is hereby authorized and directed to act on behalf of the
Issuer Trust with respect to the following:
(A) the compliance with the Underwriting
Agreement regarding the issuance and sale of the Trust
Securities;
(B) the compliance with the Securities Act,
applicable state securities or blue sky laws, and the
Trust Indenture Act;
(C) execution of the Trust Securities on behalf
of the Issuer Trust in accordance with this Trust
Agreement;
13
(D) the listing of the Preferred Securities upon
the Nasdaq National Market or such other interdealer
quotation system or securities exchange or exchanges as
shall be determined by the Depositor, with the
registration of the Preferred Securities under the
Exchange Act, if required, and the preparation and filing
of all periodic and other reports and other documents
pursuant to the foregoing;
(E) the application for a taxpayer identification
number for the Issuer Trust;
(F) the preparation of a registration statement
and a prospectus in relation to the Preferred Securities,
including any amendments thereto and the taking of any
action necessary or desirable to sell the Preferred
Securities in a transaction or series of transactions
subject to the registration requirements of the Securities
Act;
(G) cause the Issuer Trust to enter into, and
execute, deliver and perform on behalf of the Issuer Trust
all agreements, instruments, certificates or other
documents as such Administrator deems necessary or
incidental to the purposes and functions of the Issuer
Trust; and
(H) any action incidental to the foregoing as the
Administrators may from time to time determine is
necessary or advisable to give effect to the terms of this
Trust Agreement.
(ii) The Property Trustee shall have the power and
authority, and is hereby authorized and directed, to act on behalf
of the Issuer Trust with respect to the following matters:
(A) establish and maintain the Payment Account;
(B) receive, take title to and exercise all of
the rights, powers and privileges of the holder of the
Junior Subordinated Debentures;
(C) receive and collect interest, principal and
any other payments made in respect of the Junior
Subordinated Debentures in the Payment Account;
(D) distribute amounts owed to the Holders in
respect of the Trust Securities in accordance with the
terms of this Trust Agreement;
(E) act as Paying Agent and/or Securities
Registrar to the extent appointed as such hereunder;
(F) send notices of default and other notices and
information regarding the Trust Securities and the Junior
Subordinated Debentures to the Holders in accordance with
this Trust Agreement;
(G) distribute the Trust Property in accordance
with the terms of this Trust Agreement;
14
(H) to the extent provided in this Trust
Agreement, wind up the affairs of and liquidate the Issuer
Trust and prepare, execute and file the certificate of
cancellation with the Secretary of State of the State of
Delaware;
(I) after an Event of Default (other than under
paragraph (b), (c) or (d) of the definition of such term
if such Event of Default is by or with respect to the
Property Trustee), comply with the provisions of this
Trust Agreement and take any action to give effect to the
terms of this Trust Agreement and protect and conserve the
Trust Property for the benefit of the Holders (without
consideration of the effect of any such action on any
particular Holder); provided, however, that nothing in
this Section 2.7(a)(ii) shall require the Property Trustee
to take any action that is not otherwise required in this
Trust Agreement; and
(J) take any action incidental or convenient 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; provided, however, that
nothing in this Section 2.7(a)(ii) shall require the
Property Trustee to take any action that is not otherwise
required in this Trust Agreement.
(b) So long as this Trust Agreement remains in effect, the
Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of
the Issuer Trust) shall not undertake any business, activities or
transaction except as expressly provided herein or contemplated hereby. In
particular, neither the Issuer Trustees nor the Administrators (in each case
acting on behalf of the Issuer Trust) shall (i) acquire any investments or
engage in any activities not authorized by this Trust Agreement, (ii) sell,
assign, transfer, exchange, mortgage, pledge, set-off or otherwise dispose
of any of the Trust Property or interests therein, including to Holders,
except as expressly provided herein, (iii) take any action that would
reasonably be expected to cause the Issuer Trust to fail or cease to qualify
as 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 Property Trustee shall defend all claims and demands
of all Persons at any time claiming any Lien on any of the Trust Property
adverse to the interest of the Issuer Trust or the Holders in their capacity
as Holders.
(c) In connection with the issue and sale of the Preferred
Securities, the Depositor shall have the power and authority to assist the
Issuer Trust with respect to, or effect on behalf of the Issuer Trust, the
following (and any actions taken by the Depositor in furtherance of the
following prior to the date of this Trust Agreement are hereby ratified and
confirmed in all respects):
(i) the preparation and filing by the Issuer Trust with
the Commission, and the execution and delivery on behalf of the
Issuer Trust, of a registration statement and a prospectus in
relation to the Preferred Securities, including any amendments
thereto, and the taking of any action necessary or desirable to
sell the Preferred Securities in a transaction or a series of
transactions subject to the registration requirements of the
Securities Act;
(ii) the determination of the states in which to take
appropriate action to qualify or register for sale all or part of
the Preferred Securities and the determination of any and all such
acts, other than actions that must be taken by or on behalf of the
Issuer Trust, and the advice to the Issuer Trustees of actions they
must take on behalf of the Issuer Trust, and the preparation for
execution and filing of any documents to be executed and filed by
the Issuer Trust or on behalf of
15
the Issuer Trust, as the Depositor deems necessary or advisable in
order to comply with the applicable laws of any such states in
connection with the offer and sale of the Preferred Securities;
(iii) the negotiation of the terms of, and the execution
and delivery of, the Underwriting Agreement providing for the sale of
the Preferred Securities;
(iv) the preparation and filing by the Issuer Trust with
the Commission and the execution on behalf of the Issuer Trust of a
registration statement on Form 8-A relating to the registration of
the Preferred Securities under Section 12(b) or 12(g) of the
Exchange Act, as amended, including any amendments thereto;
(v) compliance with the listing requirements of the
Preferred Securities upon the Nasdaq National Market or such other
interdealer quotation system or securities exchange or exchanges as
shall be determined by the Depositor, the registration of the
Preferred Securities under the Exchange Act, if required, and the
preparation and filing of all periodic and other reports and other
documents pursuant to the foregoing; and
(vi) 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
Administrators and the Property Trustee are authorized and directed to
conduct the affairs of the Issuer Trust and to operate the Issuer Trust so
that the Issuer Trust will not be deemed to be an "investment company"
required to be registered under the Investment Company Act, and will 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
Junior Subordinated Debentures will be treated as indebtedness of the
Depositor for United States federal income tax purposes. In this connection,
the Property Trustee, the Administrators and the Holders of Common
Securities are authorized to take any action, not inconsistent with
applicable law, the Certificate of Trust or this Trust Agreement, that the
Property Trustee, the Administrators and Holders of Common Securities
determine in their discretion to be necessary or desirable for such
purposes, as long as such action does not adversely affect in any material
respect the interests of the Holders of the Outstanding Preferred
Securities. In no event shall the Administrators or the Issuer Trustees be
liable to the Issuer Trust or the Holders for any failure to comply with
this section that results from a change in law or regulations or in the
interpretation thereof.
Section 2.8. Assets of Trust. The assets of the Issuer Trust
---------------
shall consist solely of the Trust Property.
Section 2.9. Title to Trust Property. Legal title to all Trust
-----------------------
Property shall be vested at all times in the Issuer Trust and shall be held
and administered by the Property Trustee (in its capacity as such) for the
benefit of the Issuer Trust and the Holders in accordance with this Trust
Agreement.
16
ARTICLE III
-----------
PAYMENT ACCOUNT
---------------
Section 3.1. Payment Account.
---------------
(a) On or prior to the Closing Date, the Property Trustee
shall establish the Payment Account. The Property Trustee and its agents
shall have exclusive control and sole right of withdrawal with respect to
the Payment Account for the purpose of making deposits in and withdrawals
from the Payment Account in accordance with this Trust Agreement. All monies
and other property deposited or held from time to time in the Payment
Account shall be held by the Property Trustee in the Payment Account for the
exclusive benefit of the Holders and for distribution as herein provided,
including (and subject to) any priority of payments provided for herein.
(b) The Property Trustee shall deposit in the Payment Account,
promptly upon receipt, all payments of principal of or interest on, and any
other payments or proceeds with respect to, the Junior Subordinated
Debentures. Amounts held in the Payment Account shall not be invested by the
Property Trustee pending distribution thereof.
ARTICLE IV
----------
DISTRIBUTIONS; REDEMPTION
-------------------------
Section 4.1. Distributions.
-------------
(a) The Trust Securities represent undivided beneficial
interests in the Trust Property, and Distributions (including Distributions
of Additional Amounts) will be made on the Trust Securities at the rate and
on the dates that payments of interest (including payments of Additional
Interest) are made on the Junior Subordinated Debentures. Accordingly:
(i) Distributions on the Trust Securities shall be
cumulative and will accumulate whether or not there are funds of
the Issuer Trust available for the payment of Distributions.
Distributions shall accumulate from _____ __, 2001, and, except in
the event (and to the extent) that the Depositor exercises its
right to defer the payment of interest on the Junior Subordinated
Debentures pursuant to the Indenture, shall be payable quarterly in
arrears on March 31, June 30, September 30 and December 31 of each
year, commencing on December 31, 2001. If any date on which a
Distribution is otherwise payable on the Trust Securities is not a
Business Day, then the payment of such Distribution shall be made
on the next succeeding day that is a Business Day (without any
interest or other payment in respect of any such delay), except
that, if such Business Day is in the next succeeding calendar year,
payment of such Distributions shall be made on the immediately
preceding Business Day, in either case with the same force and
effect as if made on the date on which such payment was originally
payable (each date on which distributions are payable in accordance
with this Section 4.1(a), a "Distribution Date").
(ii) The Trust Securities shall be entitled to
Distributions payable at a rate of _____% per annum of the
Liquidation Amount of the Trust Securities. The amount of
Distributions payable for any period less than a full Distribution
period
17
shall be computed on the basis of a 360-day year of twelve 30-day
months and the actual number of days elapsed in a partial month in
a period. Distributions payable for each full Distribution period
will be computed by dividing the rate per annum by four. The amount
of Distributions payable for any period shall include any
Additional Amounts in respect of such period.
(iii) So long as no Debenture Event of Default has
occurred and is continuing, the Depositor has the right under the
Indenture to defer the payment of interest on the Junior
Subordinated Debentures at any time and from time to time for a
period not exceeding 20 consecutive quarterly periods (an
"Extension Period"), provided that no Extension Period may extend
beyond _____ __, 2031 or end on a date other than an interest
payment date. As a consequence of any such deferral, quarterly
Distributions on the Trust Securities by the Issuer Trust will also
be deferred (and the amount of Distributions to which Holders of
the Trust Securities are entitled will accumulate additional
Distributions thereon at the rate per annum of ______% per annum,
compounded quarterly) from the relevant payment date for such
Distributions, computed on the basis of a 360-day year of twelve
30-day months and the actual days elapsed in a partial month in
such period. Additional Distributions payable for each full
Distribution period will be computed by dividing the rate per annum
by four. The term "Distributions" as used in this Section 4.1 shall
include any such additional Distributions provided pursuant to this
Section 4.1(a)(iii). During an Extension Period, the Depositor
shall not (i) declare or pay any dividends or distributions on, or
redeem, purchase, acquire or make a liquidation payment with
respect to, any of the Depositor's capital stock, or (ii) make any
payment of principal of or interest or premium, if any, on, or
repay, repurchase or redeem any debt securities of the Depositor
that rank pari passu with, or are junior in interest to, the
Securities, including the Depositor's obligations associated with
the outstanding Preferred Securities and the 9.875% junior
subordinated debentures due 2029 issued by the Depositor on August
2, 1999, which are currently held by Allegiant Capital Trust I or
(iii) redeem, purchase or acquire less than all of the Junior
Subordinated Debentures or any of the Preferred Securities (other
than (A) repurchases, redemptions or other acquisitions of shares
of capital stock of the Depositor in connection with any employment
contract, benefit plan or other similar arrangement with or for the
benefit of any one or more employees, officers, directors or
consultants, in connection with a dividend reinvestment or
shareholder stock purchase plan, (B) as a result of a
reclassification, an exchange or conversion of any class or series
of the Depositor's capital stock (or any capital stock of a
subsidiary more than 50% of the outstanding voting stock of which
is owned, directly or indirectly, by the Depositor and/or one or
more of its subsidiaries) for any class or series of the
Depositor's capital stock, (C) the purchase of fractional interests
in shares of the Depositor's capital stock pursuant to the
conversion or exchange provisions of such capital stock or the
security being converted or exchanged, (D) any declaration of a
dividend in connection with any Rights Plan, or the issuance of
rights, stock or other property under any rights plan, or the
redemption or repurchase of rights pursuant thereto, or (E) any
dividend in the form of stock, warrants, options or other rights
where the dividend stock or the stock issuable upon exercise of
such warrants, options or other rights is the same stock as that on
which the dividend is being paid or ranks pari passu with or junior
to such stock).
(iv) Distributions on the Trust Securities shall be made
by the Property Trustee from the Payment Account and shall be
payable on each Distribution Date only to the extent that the
Issuer Trust has funds then available in the Payment Account for
the payment of such Distributions.
(b) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders thereof as they appear on
the Securities Register for the Trust Securities at the close of
18
business on the relevant record date, which shall be at the close of
business on the 15th day of March, June, September or December (whether or
not a Business Day).
Section 4.2. Redemption.
----------- ----------
(a) On each Debenture Redemption Date and on the stated
maturity of the Junior Subordinated Debentures, the Issuer Trust will be
required to redeem a Like Amount of Trust Securities at the Redemption
Price.
(b) Notice of redemption shall be given by the Property
Trustee by first-class mail, postage prepaid, mailed not less than 30 nor
more than 60 days prior to the Redemption Date to each Holder of Trust
Securities to be redeemed, at such Holder's address appearing in the
Security Register. All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price, or if the Redemption Price
cannot be calculated prior to the time the notice is required to be
sent, the estimate of the Redemption Price provided pursuant to the
Indenture together with a statement that it is an estimate and that
the actual Redemption Price will be calculated on the third
Business Day prior to the Redemption Date (and if an estimate is
provided, a further notice shall be sent of the actual Redemption
Price on the date, or as soon as practicable thereafter, that
notice of such actual Redemption Price is received pursuant to the
Indenture);
(iii) the CUSIP number or CUSIP numbers of the Preferred
Securities affected;
(iv) if less than all the Outstanding Trust Securities
are to be redeemed, the identification and the total Liquidation
Amount of the particular Trust Securities to be redeemed;
(v) that, on the Redemption Date, the Redemption Price
will become due and payable upon each such Trust Security to be
redeemed and that Distributions thereon will cease to accumulate on
and after said date, except as provided in Section 4.2(d) below;
and
(vi) the place or places where Trust Securities are to be
surrendered for the payment of the Redemption Price.
The Issuer Trust in issuing the Trust Securities shall use "CUSIP"
numbers, and the Property Trustee shall indicate the "CUSIP" numbers of the
Trust Securities in notices of redemption and related materials as a
convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as
printed on the Trust Securities or as contained in any notice of redemption
and related material.
(c) The Trust Securities redeemed on each Redemption Date
shall be redeemed at the Redemption Price with the applicable proceeds from
the contemporaneous redemption of Junior Subordinated Debentures.
Redemptions of the Trust Securities shall be made and the Redemption Price
shall be payable on each Redemption Date only to the extent that the Issuer
Trust has funds then available in the Payment Account for the payment of
such Redemption Price.
19
(d) If the Property Trustee gives a notice of redemption in
respect of any Preferred Securities, then, by 12:00 noon, New York City
time, on the Redemption Date, subject to Section 4.2(c), the Property
Trustee will, with respect to Preferred Securities held in global form,
irrevocably deposit with the Clearing Agency for such Preferred Securities,
to the extent available therefor, funds sufficient to pay the applicable
Redemption Price and will give such Clearing Agency irrevocable instructions
and authority to pay the Redemption Price to the Owners of the Preferred
Securities. With respect to Preferred Securities that are not held in global
form, the Property Trustee, subject to Section 4.2(c), will irrevocably
deposit with the Paying Agent, to the extent available therefor, funds
sufficient to pay the applicable Redemption Price and will give the Paying
Agent irrevocable instructions and authority to pay the Redemption Price to
the Holders of the Preferred Securities upon surrender of their Preferred
Securities Certificates. Notwithstanding the foregoing, Distributions
payable on or prior to the Redemption Date for any Trust Securities called
for redemption shall be payable to the Holders of such Trust Securities as
they appear on the Securities Register for the Trust Securities on the
relevant record dates for the related Distribution Dates. If notice of
redemption shall have been given and funds deposited as required, then, upon
the date of such deposit, all rights of Holders holding Trust Securities so
called for redemption will cease, except the right of such Holders to
receive the Redemption Price and any Distributions payable in respect of the
Trust Securities on or prior to the Redemption Date, but without interest,
and such Trust Securities will cease to be Outstanding. In the event that
any date on which any applicable Redemption Price is payable is not a
Business Day, then payment of the applicable Redemption Price payable on
such date will be made on the next succeeding day that is a Business Day
(and without any interest or other payment in respect of any such delay),
except that, if such Business Day is in the next succeeding calendar year,
such payment shall be made on the immediately preceding Business Day, in
each case, with the same force and effect as if made on such date. In the
event that payment of the Redemption Price in respect of any Trust
Securities called for redemption is improperly withheld or refused and not
paid either by the Issuer Trust or by the Depositor pursuant to the
Guarantee Agreement, Distributions on such Trust Securities will continue to
accumulate, as set forth in Section 4.1, from the Redemption Date originally
established by the Issuer Trust for such Trust Securities to the date such
applicable Redemption Price is actually paid, in which case the actual
payment date will be the date fixed for redemption for purposes of
calculating the applicable Redemption Price.
(e) Subject to Section 4.3(a), if less than all the
Outstanding Trust Securities are to be redeemed on a Redemption Date, then
the particular Preferred Securities to be redeemed shall be selected not
more than 60 days prior to the Redemption Date by the Property Trustee from
the Outstanding Preferred Securities not previously called for redemption in
such a manner as the Property Trustee shall deem fair and appropriate. The
Property Trustee shall promptly notify the Securities Registrar in writing
of the Preferred Securities selected for redemption and, in the case of any
Preferred Securities selected for partial redemption, the Liquidation Amount
thereof to be redeemed. For all purposes of this Trust Agreement, unless the
context otherwise requires, all provisions relating to the redemption of
Preferred Securities shall relate, in the case of any Preferred Securities
redeemed or to be redeemed only in part, to the portion of the Liquidation
Amount of Preferred Securities which has been or is to be redeemed.
(f) 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.
Section 4.3. Subordination of Common Securities.
----------------------------------
(a) Payment of Distributions (including Additional Amounts, if
applicable) on, the Redemption Price of, and the Liquidation Distribution in
respect of, the Trust Securities, as applicable,
20
shall be made, pro rata among the Common Securities and the Preferred
Securities based on the Liquidation Amount of such Trust Securities;
provided, however, that if on any Distribution Date or Redemption Date any
Event of Default resulting from a Debenture Event of Default shall have
occurred and be continuing, no payment of any Distribution (including any
Additional Amounts, if applicable) on, or Redemption Price of, or
Liquidation Distribution in respect of, any Common Security, and no other
payment on account of the redemption, liquidation or other acquisition of
Common Securities, shall be made unless payment in full in cash of all
accumulated and unpaid Distributions (including Additional Amounts, if
applicable) on all Outstanding Preferred Securities for all Distribution
periods terminating on or prior thereto, or, in the case of payment of the
Redemption Price, the full amount of such Redemption Price on all
Outstanding Preferred Securities then called for redemption, or in the case
of payment of the Liquidation Distribution the full amount of such
Liquidation Distribution on all Outstanding Preferred Securities, shall have
been made or provided for, and all funds immediately available to the
Property Trustee shall first be applied to the payment in full in cash of
all Distributions (including any Additional Amounts, if applicable) on, or
the Redemption Price of, or Liquidation Distribution in respect of Preferred
Securities then due and payable. The existence of an Event of Default does
not entitle the Holders of Preferred Securities to accelerate the maturity
thereof.
(b) In the case of the occurrence of any Event of Default
resulting from any Debenture Event of Default, the Holder of the Common
Securities shall have no right to act with respect to any such Event of
Default under this Trust Agreement until the effects of all such Events of
Default with respect to the Preferred Securities have been cured, waived or
otherwise eliminated. Until all such Events of Default under this Trust
Agreement with respect to the Preferred Securities have been so cured,
waived or otherwise eliminated, the Property Trustee shall act solely on
behalf of the Holders of the Preferred Securities and not on behalf of the
Holder of the Common Securities, and only the Holders of the Preferred
Securities will have the right to direct the Property Trustee to act on
their behalf.
Section 4.4. Payment Procedures. Payments of Distributions
------------------
(including any Additional Amounts, if applicable) in respect of the
Preferred Securities shall be made by check mailed to the address of the
Person entitled thereto as such address shall appear on the Securities
Register or, if the Preferred Securities are held by a Clearing Agency, such
Distributions shall be made to the Clearing Agency in immediately available
funds, which will credit the relevant accounts on the applicable
Distribution Dates. Payments of Distributions to Holders of $1,000,000 or
more in aggregate Liquidation Amount of Preferred Securities may be made by
wire transfer of immediately available funds upon written request of such
Holder of Preferred Securities to the Securities Registrar not later than 15
calendar days prior to the date on which the Distribution is payable.
Payments in respect of the Common Securities shall be made in such manner as
shall be mutually agreed between the Property Trustee and the Holder of the
Common Securities.
Section 4.5. Tax Returns and Reports.
-----------------------
(a) The Administrators shall prepare and file (or cause to be
prepared and filed), at the Depositor's expense, all United States federal,
state and local tax and information returns and reports required to be filed
by or in respect of the Issuer Trust. In this regard, the Administrators
shall (i) prepare and file (or cause to be prepared and filed) all Internal
Revenue Service forms required to be filed in respect of the Issuer Trust in
each taxable year of the Issuer Trust and (ii) prepare and furnish (or cause
to be prepared and furnished) to each Holder all Internal Revenue Service
forms required to be provided by the Issuer Trust. The Administrators shall
provide the Depositor and the Property Trustee with a copy of all such
returns and reports promptly after such filing or furnishing. The Issuer
Trustees and the
21
Administrators shall comply with United States federal withholding and
backup withholding tax laws and information reporting requirements with
respect to any payments to Holders under the Trust Securities.
(b) On or before December 15 of each year during which any
Preferred Securities are outstanding, the Administrators shall furnish to
the Paying Agent such information as may be reasonably requested by the
Property Trustee in order that the Property Trustee may prepare the
information which it is required to report for such year on Internal Revenue
Service Forms 1096 and 1099 pursuant to Section 6049 of the Code. Such
information shall include the amount of original issue discount includible
in income for each outstanding Preferred Security during such year.
Section 4.6. Payment of Taxes; Duties, Etc. of the Issuer
--------------------------------------------
Trust. Upon receipt under the Junior Subordinated Debentures of Additional
-----
Sums, the Property Trustee, at the written direction of an Administrator or
the Depositor, shall promptly pay any taxes, duties or governmental charges
of whatsoever nature (other than withholding taxes) imposed on the Issuer
Trust by the United States or any other taxing authority.
Section 4.7. Payments under Indenture or Pursuant to Direct
----------------------------------------------
Actions. Any amount payable hereunder to any Holder of Preferred Securities
-------
shall be reduced by the amount of any corresponding payment such Holder (or
any Owner related thereto) has directly received pursuant to Section 5.8 of
the Indenture or Section 5.13 of this Trust Agreement.
Section 4.8. Liability of the Holder of Common Securities. The
--------------------------------------------
Holder of Common Securities shall be liable for the debts and obligations of
the Issuer Trust as set forth in Section 6.7(c) of the Indenture regarding
allocation of expenses.
ARTICLE V
---------
TRUST SECURITIES CERTIFICATES
-----------------------------
Section 5.1. Initial Ownership. Until the issuance of the
-----------------
Trust Securities, and at any time during which no Trust Securities are
outstanding, the Depositor shall be the sole beneficial owner of the Issuer
Trust.
Section 5.2. The Trust Securities Certificates.
---------------------------------
(a) The Trust Securities Certificates shall be executed on
behalf of the Issuer Trust by manual or facsimile signature of at least one
Administrator, except as provided in Section 5.3. Trust Securities
Certificates bearing the signatures of individuals who were, at the time
when such signatures shall have been affixed, authorized to sign on behalf
of the Issuer Trust, shall be validly issued and entitled to the benefits of
this Trust Agreement, notwithstanding that such individuals or any of them
shall have ceased to be so authorized prior to the delivery of such Trust
Securities Certificates or did not hold such offices at the date of delivery
of such Trust Securities Certificates. The Preferred Securities Certificate
shall be issued in minimum denominations of $25 and integral multiples of
$25 in excess thereof. A transferee of a Trust Securities Certificate shall
become a Holder, and shall be entitled to the rights and subject to the
obligations of a Holder hereunder, upon due registration of such Trust
Securities Certificate in such transferee's name pursuant to Section 5.5.
(b) Upon their original issuance, Preferred Securities
Certificates shall be issued in the form of one or more fully registered
Global Preferred Securities Certificates which will be deposited with or
22
on behalf of Cede as the Depositary's nominee and registered in the name of
Cede as the Depositary's nominee. Unless and until it is exchangeable in
whole or in part for the Preferred Securities in definitive form, a global
security may not be transferred except as a whole by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor of such Depositary or a nominee of such
successor.
(c) A single Common Securities Certificate representing the
Common Securities shall be issued to the Depositor in the form of a
definitive Common Securities Certificate.
Section 5.3. Execution and Delivery of Trust Securities
------------------------------------------
Certificates. On the Closing Date, and on any Date of Delivery, if
------------
applicable, an Administrator shall cause Trust Securities Certificates, in
an aggregate Liquidation Amount as provided in Sections 2.4 and 2.5, as the
case may be, to be executed on behalf of the Issuer Trust and delivered to
the Property Trustee and upon such delivery the Property Trustee shall
authenticate such Trust Securities Certificates and deliver such Trust
Securities Certificates upon the written order of the Issuer Trust, executed
by an Administrator thereof, without further corporate action by the Issuer
Trust, in authorized denominations, and whereupon the Trust Securities
evidenced by such Trust Securities Certificates shall be duly and validly
issued undivided beneficial interests in the assets of the Issuer Trust and
entitled to the benefits of this Trust Agreement.
Section 5.4. Global Preferred Security.
-------------------------
(a) Any Global Preferred Security issued under this Trust
Agreement shall be registered in the name of the nominee of the Clearing
Agency and delivered to such custodian therefor, and such Global Preferred
Security shall constitute a single Preferred Security for all purposes of
this Trust Agreement.
(b) Notwithstanding any other provision in this Trust
Agreement, a Global Preferred Security may not be exchanged in whole or in
part for Preferred Securities registered, and no transfer of the Global
Preferred Security in whole or in part may be registered, in the name of any
Person other than the Clearing Agency for such Global Preferred Security,
Cede or other nominee thereof unless (i) such Clearing Agency advises the
Depositor and the Issuer Trustees in writing that such Clearing Agency is no
longer willing or able to properly discharge its responsibilities as
Clearing Agency with respect to such Global Preferred Security, and the
Depositor is unable to locate a qualified successor within 90 days of
receipt of such notice from the Depositary, (ii) the Depositor, at its
option, advises the Depositary in writing that it elects to terminate the
book-entry system through the Clearing Agency, or (iii) there shall have
occurred and be continuing an Event of Default.
(c) If a Preferred Security is to be exchanged in whole or in
part for a beneficial interest in a Global Preferred Security, then either
(i) such Global Preferred Security shall be so surrendered for exchange or
cancellation as provided in this Article V or (ii) the Liquidation Amount
thereof shall be reduced or increased by an amount equal to the portion
thereof to be so exchanged or canceled, or equal to the Liquidation Amount
of such other Preferred Security to be so exchanged for a beneficial
interest therein, as the case may be, by means of an appropriate adjustment
made on the records of the Security Registrar, whereupon the Property
Trustee, in accordance with the Applicable Procedures, shall instruct the
Clearing Agency or its authorized representative to make a corresponding
adjustment to its records. Upon any such surrender or adjustment of a Global
Preferred Security by the Clearing Agency, accompanied by registration
instructions, the Property Trustee shall, subject to Section 5.4(b) and as
otherwise provided in this Article V, authenticate and deliver and an
Administrator shall execute any Preferred Securities issuable in exchange
for such Global Preferred Security (or any portion thereof) in
23
accordance with the instructions of the Clearing Agency. The Property
Trustee shall not be liable for any delay in delivery of such instructions
and may conclusively rely on, and shall be fully protected in relying on,
such instructions.
(d) Every Preferred Security registered, executed,
authenticated and delivered upon registration of transfer of, or in exchange
for or in lieu of, a Global Preferred Security or any portion thereof,
whether pursuant to this Article V or Article IV or otherwise, shall be
executed, authenticated and delivered in the form of, and shall be, a Global
Preferred Security, unless such Global Preferred Security is registered in
the name of a Person other than the Clearing Agency for such Global
Preferred Security or a nominee thereof.
(e) The Clearing Agency or its nominee, as the registered
owner of a Global Preferred Security, shall be considered the Holder of the
Preferred Securities represented by such Global Preferred Security for all
purposes under this Trust Agreement and the Preferred Securities, and Owners
of beneficial interests in such Global Preferred Security shall hold such
interests pursuant to the applicable Procedures and, except as otherwise
provided herein, shall not be entitled to receive physical delivery of any
such Preferred Securities in definitive form and shall not be considered the
Holders thereof under this Trust Agreement. Accordingly, any such Owner's
beneficial interest in the Global Preferred Security shall be shown only on,
and the transfer of such interest shall be effected only through, records
maintained by the Clearing Agency or its nominee. Neither the Property
Trustee, the Securities Registrar nor the Depositor shall have any liability
in respect of any transfers effected by the Clearing Agency.
(f) The rights of Owners of beneficial interests in a Global
Preferred Security shall be exercised only through the Clearing Agency and
shall be limited to those established by law and agreements between such
Owners and the Clearing Agency.
Section 5.5. Registration of Transfer and Exchange Generally;
------------------------------------------------
Certain Transfers and Exchanges; Preferred Securities Certificates.
------------------------------------------------------------------
(a) The Property Trustee shall keep or cause to be kept at its
Corporate Trust Office a register or registers for the purpose of
registering Preferred Trust Securities Certificates and transfers and
exchanges of Preferred Securities Certificates in which the registrar and
transfer agent with respect to the Preferred Securities (the "Securities
Registrar"), subject to such reasonable regulations as it may prescribe,
shall provide for the registration of Preferred Securities Certificates and
Common Securities Certificates (subject to Section 5.11 in the case of
Common Securities Certificates) and registration of transfers and exchanges
of Preferred Securities Certificates as herein provided. Such register is
herein sometimes referred to as the "Securities Register." The Property
Trustee is hereby appointed "Securities Registrar" for the purpose of
registering Preferred Securities and transfers of Preferred Securities as
herein provided.
Upon surrender for registration of transfer of any Preferred
Security at the offices or agencies of the Property Trustee designated for
that purpose, an Administrator shall execute and the Property Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Preferred Securities of the same series of any
authorized denominations of like tenor and aggregate Liquidation Amount and
bearing such legends as may be required by this Trust Agreement.
At the option of the Holder, Preferred Securities may be exchanged
for other Preferred Securities of any authorized denominations, of like
tenor and aggregate Liquidation Amount and bearing such legends as may be
required by this Trust Agreement, upon surrender of the Preferred Securities
to be
24
exchanged at such office or agency. Whenever any Preferred Securities are so
surrendered for exchange, an Administrator shall execute and the Property
Trustee shall authenticate and deliver the Preferred Securities that the
Holder making the exchange is entitled to receive.
All Preferred Securities issued upon any transfer or exchange of
Preferred Securities shall be the valid obligations of the Issuer Trust,
evidencing the same interest, and entitled to the same benefits under this
Trust Agreement, as the Preferred Securities surrendered upon such transfer
or exchange.
Every Preferred Security presented or surrendered for transfer or
exchange shall (if so required by the Property Trustee) be duly endorsed, or
be accompanied by a written instrument of transfer in form satisfactory to
the Property Trustee and the Securities Registrar, duly executed by the
Holder thereof or such Holder's attorney duly authorized in writing.
No service charge shall be made to a Holder for any transfer or
exchange of Preferred Securities, but the Property Trustee may require
payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection with any transfer or exchange of Preferred
Securities.
Neither the Issuer Trust nor the Property Trustee shall be
required, pursuant to the provisions of this Section, (i) to issue, register
the transfer of, or exchange any Preferred Security during a period
beginning at the opening of business 15 days before the day of selection for
redemption of Preferred Securities pursuant to Article IV and ending at the
close of business on the day of mailing of the notice of redemption, or (ii)
to register the transfer of or exchange any Preferred Security so selected
for redemption in whole or in part, except, in the case of any such
Preferred Security to be redeemed in part, any portion thereof not to be
redeemed.
(b) Certain Transfers and Exchanges. Trust Securities may only
-------------------------------
be transferred, in whole or in part, in accordance with the terms and
conditions set forth in this Trust Agreement. Any transfer or purported
transfer of any Trust Security not made in accordance with this Trust
Agreement shall be null and void.
(i) Non-Global Security to Non-Global Security. A Trust
------------------------------------------
Security that is not a Global Preferred Security may be
transferred, in whole or in part, to a Person who takes delivery in
the form of another Trust Security that is not a Global Preferred
Security as provided in Section 5.5(a).
(ii) Free Transferability. Subject to this Section 5.5,
--------------------
Preferred Securities shall be freely transferable.
(iii) Exchanges Between Global Preferred Security and
-----------------------------------------------
Non-Global Preferred Security. A beneficial interest in a Global
-----------------------------
Preferred Security may be exchanged for a Preferred Security that
is not a Global Preferred Security as provided in Section 5.4.
Section 5.6. Mutilated, Destroyed, Lost or Stolen Trust
------------------------------------------
Securities Certificates. If (a) any mutilated Trust Securities Certificate
-----------------------
shall be surrendered to the Securities Registrar, or if the Securities
Registrar shall receive evidence to its satisfaction of the destruction,
loss or theft of any Trust Securities Certificate and (b) there shall be
delivered to the Securities Registrar and the Administrators such security
or indemnity as may be required by them to save each of them harmless, then
in the absence of notice that such Trust Securities Certificate shall have
been acquired by a bona fide purchaser or a protected purchaser, the
Administrators, or any one of them, on behalf of the Issuer Trust shall
execute
25
and make available for delivery, and the Property Trustee shall
authenticate, in exchange for or in lieu of any such mutilated, destroyed,
lost or stolen Trust Securities Certificate, a new Trust Securities
Certificate of like class, tenor and denomination. In connection with the
issuance of any new Trust Securities Certificate under this Section, the
Administrators or the Securities Registrar may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in connection therewith. Any duplicate Trust Securities Certificate issued
pursuant to this Section shall constitute conclusive evidence of an
undivided beneficial interest in the assets of the Issuer Trust
corresponding to that evidenced by the lost, stolen or destroyed Trust
Securities Certificate, as if originally issued, whether or not the lost,
stolen or destroyed Trust Securities Certificate shall be found at any time.
Section 5.7. Persons Deemed Holders. The Issuer Trustees, the
----------------------
Administrators, the Securities Registrar or the Depositor shall treat the
Person in whose name any Trust Securities are registered in the Securities
Register as the owner of such Trust Securities for the purpose of receiving
Distributions and for all other purposes whatsoever, and none of the Issuer
Trustees, the Administrators, the Securities Registrar nor the Depositor
shall be bound by any notice to the contrary.
Section 5.8. Access to List of Holders' Names and Addresses.
----------------------------------------------
Each Holder and each Owner shall be deemed to have agreed not to hold the
Depositor, the Property Trustee or the Administrators accountable by reason
of the disclosure of its name and address, regardless of the source from
which such information was derived.
Section 5.9. Maintenance of Office or Agency. The Property
-------------------------------
Trustee shall designate, with the consent of the Administrators, which
consent shall not be unreasonably withheld, an office or offices or agency
or agencies where Preferred Securities Certificates may be surrendered for
registration of transfer or exchange and where notices and demands to or
upon the Issuer Trustees in respect of the Trust Securities Certificates may
be served. The Property Trustee initially designates its Corporate Trust
Office for such purposes. The Property Trustee shall give prompt written
notice to the Depositor, the Administrators and the Holders of any change in
the location of the Securities Register or any such office or agency.
Section 5.10. Appointment of Paying Agent. The Paying Agent
---------------------------
shall make Distributions to Holders from the Payment Account and shall
report the amounts of such Distributions to the Property Trustee and the
Administrators. Any Paying Agent shall have the revocable power to withdraw
funds from the Payment Account solely for the purpose of making the
Distributions referred to above. The Property Trustee may revoke such power
and remove any Paying Agent in its sole discretion. The Paying Agent shall
initially be the Property Trustee. Any Person acting as Paying Agent shall
be permitted to resign as Paying Agent upon at least 30 days' written notice
to the Administrators and the Property Trustee. In the event that the
Property Trustee shall no longer be the Paying Agent or a successor Paying
Agent shall resign or its authority to act be revoked, the Property Trustee
shall appoint a successor (which shall be a bank or trust company) that is
reasonably acceptable to the Administrators to act as Paying Agent. Such
successor Paying Agent appointed by the Property Trustee, or any additional
Paying Agent appointed by the Administrators, shall execute and deliver to
the Issuer Trustees an instrument in which such successor Paying Agent or
additional Paying Agent shall agree with the Issuer Trustees that as Paying
Agent, such successor Paying Agent or additional Paying Agent will hold all
sums, if any, held by it for payment to the Holders in trust for the benefit
of the Holders entitled thereto until such sums shall be paid to such
Holders. The Paying Agent shall return all unclaimed funds to the Property
Trustee and upon removal of a Paying Agent such Paying Agent shall also
return all funds in its possession to the Property Trustee. The provisions
of Sections 8.1, 8.3 and 8.6 herein shall apply to
26
the Bank also in its role as Paying Agent, for so long as the Bank shall act
as Paying Agent and, to the extent applicable, to any other paying agent
appointed hereunder. Any reference in this Trust Agreement to the Paying
Agent shall include any co-paying agent chosen by the Property Trustee
unless the context requires otherwise.
Section 5.11. Ownership of Common Securities by Depositor. On
-------------------------------------------
the Closing Date, and on any Date of Delivery, if applicable, the Depositor
shall acquire and retain beneficial and record ownership of the Common
Securities. Neither the Depositor nor any successor Holder of the Common
Securities may transfer less than all of the Common Securities, and the
Depositor or any successor Holder may transfer the Common Securities only
(a) in connection with a consolidation or merger of the Depositor into
another corporation or any conveyance, transfer or lease by the Depositor of
its properties and assets substantially as an entirety to any Person,
pursuant to Section 8.1 of the Indenture, or (b) a transfer to an Affiliate
of the Depositor in compliance with applicable law (including the Securities
Act and applicable state securities and blue sky laws). To the fullest
extent permitted by law, any other attempted transfer of the Common
Securities shall be void. The Administrators shall cause each Common
Securities Certificate issued to the Depositor to contain a legend stating
"THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT TO A SUCCESSOR IN INTEREST TO
THE DEPOSITOR OR AN AFFILIATE OF THE DEPOSITOR IN COMPLIANCE WITH APPLICABLE
LAW AND SECTION 5.11 OF THE TRUST AGREEMENT."
Section 5.12. Notices to Clearing Agency. To the extent that a
--------------------------
notice or other communication to the Holders is required under this Trust
Agreement, for so long as Preferred Securities are represented by a Global
Preferred Securities Certificate, the Administrators and the Property
Trustee shall give all such notices and communications specified herein to
be given to the Clearing Agency, and shall have no obligations to the
Owners.
Section 5.13. Rights of Holders.
-----------------
(a) The legal title to all Trust Property shall be vested at
all times in the Issuer Trust and shall be held and administered by the
Property Trustee (in its capacity as such) in accordance with Section 2.9,
and the Holders shall not have any right or title therein other than the
undivided beneficial interest in the assets of the Issuer Trust conferred by
their Trust Securities and they shall have no right to call for any
partition or division of property, profits or rights of the Issuer Trust
except as described below. The Trust Securities shall be personal property
giving only the rights specifically set forth therein and in this Trust
Agreement. The Trust Securities shall have no preemptive or similar rights
and when issued and delivered to Holders against payment of the purchase
price therefor will be validly issued, fully paid and nonassessable
undivided beneficial interests in the Trust Property. Subject to Section 4.8
hereof, the Holders of the Trust Securities, in their capacities as such,
shall be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware.
(b) For so long as any Preferred Securities remain
Outstanding, if, upon a Debenture Event of Default, the Debenture Trustee
fails, or the holders of not less than 25% in principal amount of the
outstanding Junior Subordinated Debentures fail, to declare the principal of
all of the Junior Subordinated Debentures to be immediately due and payable,
the Holders of at least 25% in Liquidation Amount of the Preferred
Securities then Outstanding shall have such right to make such declaration
by a notice in writing to the Property Trustee, the Depositor and the
Debenture Trustee.
27
At any time after such a declaration of acceleration with respect
to the Junior Subordinated Debentures has been made and before a judgment or
decree for payment of the money due has been obtained by the Debenture
Trustee as provided in the Indenture, the Holders of a Majority in
Liquidation Amount of the Preferred Securities, by written notice to the
Property Trustee, the Depositor and the Debenture Trustee, may rescind and
annul such declaration and its consequences if:
(i) the Depositor has paid or deposited with the
Debenture Trustee a sum sufficient to pay:
(A) all overdue installments of interest on all
of the Junior Subordinated Debentures,
(B) any accrued Additional Interest on all of
the Junior Subordinated Debentures,
(C) the principal of (and premium, if any, on)
any Junior Subordinated Debentures which have become due
otherwise than by such declaration of acceleration and
interest and Additional Interest thereon at the rate borne
by the Junior Subordinated Debentures, and
(D) all sums paid or advanced by the Debenture
Trustee under the Indenture and the reasonable
compensation, expenses, disbursements and advances of the
Debenture Trustee and the Property Trustee, their agents
and counsel; and
(ii) all Events of Default with respect to the Junior
Subordinated Debentures, other than the non-payment of the
principal of the Junior Subordinated Debentures which has become
due solely by such acceleration, have been cured or waived as
provided in Section 5.13 of the Indenture.
The Holders of a Majority in Liquidation Amount of the Preferred
Securities may, on behalf of the Holders of all the Preferred Securities,
waive any past default under the Indenture, except a default in the payment
of principal or interest (unless such default has been cured and a sum
sufficient to pay all matured installments of interest and principal due
otherwise than by acceleration has been deposited with the Debenture
Trustee) or a default in respect of a covenant or provision which under the
Indenture cannot be modified or amended without the consent of the holder of
each outstanding Junior Subordinated Debentures affected thereby. No such
rescission shall affect any subsequent default or impair any right
consequent thereon.
Upon receipt by the Property Trustee of written notice declaring
such an acceleration, or rescission and annulment thereof, by Holders of the
Preferred Securities all or part of which is represented by Global Preferred
Securities, a record date shall be established for determining Holders of
Outstanding Preferred Securities entitled to join in such notice, which
record date shall be at the close of business on the day the Property
Trustee receives such notice. The Holders on such record date, or their duly
designated proxies, and only such Persons, shall be entitled to join in such
notice, whether or not such Holders remain Holders after such record date;
provided, that, unless such declaration of acceleration, or rescission and
annulment, as the case may be, shall have become effective by virtue of the
requisite percentage having joined in such notice prior to the day which is
90 days after such record date, such notice of declaration of acceleration,
or rescission and annulment, as the case may be, shall automatically and
without further action by any Holder be canceled and of no further effect.
Nothing in
28
this paragraph shall prevent a Holder, or a proxy of a Holder, from giving,
after expiration of such 90-day period, a new written notice of declaration
of acceleration, or rescission and annulment thereof, as the case may be,
that is identical to a written notice which has been canceled pursuant to
the proviso to the preceding sentence, in which event a new record date
shall be established pursuant to the provisions of this Section 5.13(b).
(c) For so long as any Preferred Securities remain
Outstanding, to the fullest extent permitted by law and subject to the terms
of this Trust Agreement and the Indenture, upon a Debenture Event of
Default, any Holder of Preferred Securities shall have the right to
institute a proceeding directly against the Depositor, pursuant to Section
5.8 of the Indenture, for enforcement of payment to such Holder of the
principal amount of or interest on Junior Subordinated Debentures having an
aggregate principal amount equal to the aggregate Liquidation Amount of the
Preferred Securities of such Holder (a "Direct Action"). Except as set forth
in Section 5.13(b) and this Section 5.13(c) of this Trust Agreement, the
Holders of Preferred Securities shall have no right to exercise directly any
right or remedy available to the holders of, or in respect of, the Junior
Subordinated Debentures.
ARTICLE VI
----------
ACTS OF HOLDERS; MEETINGS; VOTING
---------------------------------
Section 6.1. Limitations on Holders' Voting Rights.
-------------------------------------
(a) Except as provided in this Trust Agreement and in the
Indenture and as otherwise required by law, no Holder of Preferred
Securities shall have any right to vote or in any manner otherwise control
the administration, operation and management of the Issuer Trust or the
obligations of the parties hereto, nor shall anything herein set forth or
contained in the terms of the Trust Securities Certificates be construed so
as to constitute the Holders from time to time as members of an association.
(b) So long as any Junior Subordinated Debentures are held by
the Property Trustee on behalf of the Issuer Trust, the Property Trustee
shall not (i) direct the time, method or place of conducting any proceeding
for any remedy available to the Property Trustee, or executing any trust or
power conferred on the Debenture Trustee with respect to such Junior
Subordinated Debentures, (ii) waive any past default that may be waived
under Section 5.13 of the Indenture, (iii) exercise any right to rescind or
annul a declaration that the principal of all the Junior Subordinated
Debentures shall be due and payable, or (iv) consent to any amendment,
modification or termination of the Indenture or the Junior Subordinated
Debentures, where such consent shall be required, without, in each case,
obtaining the prior approval of the Holders of a Majority in Liquidation
Amount of the Preferred Securities; provided, however, that where a consent
under the Indenture would require the consent of each holder of Junior
Subordinated Debentures affected thereby, no such consent shall be given by
the Property Trustee without the prior written consent of each Holder of
Preferred Securities. The Property Trustee shall not revoke any action
previously authorized or approved by a vote of the Holders of Preferred
Securities, except by a subsequent vote of the Holders of Preferred
Securities. The Property Trustee shall notify all Holders of the Preferred
Securities of any notice of default received with respect to the Junior
Subordinated Debentures. In addition to obtaining the foregoing approvals of
the Holders of the Preferred Securities, prior to taking any of the
foregoing actions, the Property Trustee shall, at the expense of the
Depositor, obtain an Opinion of Counsel experienced in such matters to the
effect that such action will not cause the Issuer Trust to fail or cease to
be treated as grantor trust for United States federal income tax purposes.
29
(c) If any proposed amendment to the Trust Agreement provides
for, or the Issuer Trust otherwise proposes to effect, (i) any action that
would adversely affect in any material respect the interests, powers,
preferences or special rights of the Preferred Securities, whether by way of
amendment to the Trust Agreement or otherwise, or (ii) the dissolution of
the Issuer Trust, other than pursuant to the terms of this Trust Agreement,
then the Holders of Outstanding Preferred Securities as a class will be
entitled to vote on such amendment or proposal and such amendment or
proposal shall not be effective except with the approval of the Holders of a
Majority in Liquidation Amount of the Preferred Securities. Notwithstanding
any other provision of this Trust Agreement, no amendment to this Trust
Agreement may be made if, as a result of such amendment, it would cause the
Issuer Trust fail or cease to be treated as a grantor trust for United
States federal income tax purposes.
Section 6.2. Notice of Meetings. Notice of all meetings of the
------------------
Holders, stating the time, place, and purpose of the meeting, shall be given
by the Property Trustee pursuant to Section 10.8 to each Holder of record,
at his registered address, at least 15 days and not more than 90 days before
the meeting. At any such meeting, any business properly before the meeting
may be so considered whether or not stated in the notice of the meeting. Any
adjourned meeting may be held as adjourned without further notice.
Section 6.3. Meetings of Holders.
-------------------
(a) No annual meeting of Holders is required to be held. The
Property Trustee, however, shall call a meeting of Holders to vote on any
matter upon the written request of the Holders of record of 25% or more of
the aggregate Liquidation Amount of the Preferred Securities and the
Administrators or the Property Trustee may, at any time in their discretion,
call a meeting of Holders of Preferred Securities to vote on any matters as
to which Holders are entitled to vote.
(b) Holders of a Majority in Liquidation Amount of the
Preferred Securities, present in person or represented by proxy, shall
constitute a quorum at any meeting of Holders of Preferred Securities.
(c) If a quorum is present at a meeting, an affirmative vote
by the Holders of record present, in person or by proxy, holding Preferred
Securities representing a Majority in Liquidation Amount of the Preferred
Securities held by the Holders present, either in person or by proxy, at
such meeting shall constitute the action of the Holders of Preferred
Securities, unless this Trust Agreement requires a greater number of
affirmative votes.
Section 6.4. Voting Rights. Holders shall be entitled to one
-------------
vote for each $25 of Liquidation Amount represented by their Outstanding
Trust Securities in respect of any matter as to which such Holders are
entitled to vote.
Section 6.5. Proxies, etc. At any meeting of Holders, any
------------
Holder entitled to vote thereat may vote by proxy, provided that no proxy
shall be voted at any meeting unless it shall have been placed on file with
the Property Trustee, or with such other officer or agent of the Issuer
Trust as the Property Trustee may direct, for verification prior to the time
at which such vote shall be taken. Pursuant to a resolution of the Property
Trustee, proxies may be solicited in the name of the Property Trustee or one
or more officers of the Property Trustee. Only Holders of record shall be
entitled to vote. When Trust Securities are held jointly by several persons,
any one of them may vote at any meeting in person or by proxy in respect of
such Trust Securities, but if more than one of them shall be present at such
meeting in person or by proxy, and such joint owners or their proxies so
present disagree as to any vote to be cast,
30
such vote shall not be received in respect of such Trust Securities. A proxy
purporting to be executed by or on behalf of a Holder shall be deemed valid
unless challenged at or prior to its exercise, and the burden of proving
invalidity shall rest on the challenger. No proxy shall be valid more than
three years after its date of execution.
Section 6.6. Holder Action by Written Consent. Any action
--------------------------------
which may be taken by Holders at a meeting may be taken without a meeting if
Holders holding a Majority in Liquidation Amount of all Trust Securities
entitled to vote in respect of such action (or such larger proportion
thereof as shall be required by any other provision of this Trust Agreement)
shall consent to the action in writing.
Section 6.7. Record Date for Voting and Other Purposes. For
-----------------------------------------
the purposes of determining the Holders who are entitled to notice of and to
vote at any meeting or by written consent, or to participate in any
Distribution on the Trust Securities in respect of which a record date is
not otherwise provided for in this Trust Agreement, or for the purpose of
any other action, the Administrators (or the Property Trustee if the
Administrators are unable or unwilling to act) may from time to time fix a
date, not more than 90 days prior to the date of any meeting of Holders or
the payment of a Distribution or other action, as the case may be, as a
record date for the determination of the identity of the Holders of record
for such purposes.
Section 6.8. Acts of Holders.
---------------
(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 Holders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed
by such Holders in person or by an agent duly appointed in writing; and,
except as otherwise expressly provided herein, such action shall become
effective when such instrument or instruments are delivered to the Property
Trustee. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments. Proof of execution of any
such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Trust Agreement and (subject to Section
8.1) conclusive in favor of the Issuer Trustees, if made in the manner
provided in this Section 6.8.
(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 Issuer
Trustee or Administrator receiving the same deems sufficient.
(c) The ownership of Trust Securities shall be proved by the
Securities Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Trust Security shall bind
every future Holder of the same Trust Security and the Holder of every Trust
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered
to be done by the Issuer Trustees, the Administrators, or the Issuer Trust
in reliance thereon, whether or not notation of such action is made upon
such Trust Security.
31
(e) Without limiting the foregoing, a Holder entitled
hereunder to take any action hereunder with regard to any particular Trust
Security may do so with regard to all or any part of the Liquidation Amount
of such Trust Security or by one or more duly appointed agents each of which
may do so pursuant to such appointment with regard to all or any part of
such Liquidation Amount.
(f) If any dispute shall arise among the Holders, the
Administrators or the Issuer Trustees with respect to the authenticity,
validity or binding nature of any request, demand, authorization, direction,
consent, waiver or other Act of such Holder or Issuer Trustee under this
Article VI, then the determination of such matter by the Property Trustee
shall be conclusive with respect to such matter.
Section 6.9. Inspection of Records. Upon reasonable notice to
---------------------
the Administrators and the Property Trustee, the records of the Issuer Trust
shall be open to inspection by Holders during normal business hours for any
purpose reasonably related to such Holder's interest as a Holder.
ARTICLE VII
-----------
REPRESENTATIONS AND WARRANTIES
------------------------------
Section 7.1. Representations and Warranties of the Property
----------------------------------------------
Trustee and the Delaware Trustee. The Property Trustee and the Delaware
--------------------------------
Trustee (and any successors thereto at the time of their appointment), each
severally on behalf of and as to itself, hereby represents and warrants for
the benefit of the Depositor and the Holders that:
(a) The Property Trustee is a banking corporation duly
organized, validly existing and in good standing under the laws of New York,
with trust power and authority to execute and deliver, and to carry out and
perform its obligations under the terms of this Trust Agreement.
(b) The execution, delivery, and performance by the Property
Trustee of this Trust Agreement has been duly authorized by all necessary
corporate action on the part of the Property Trustee; and this Trust
Agreement has been duly executed and delivered by the Property Trustee, and
constitutes a legal, valid and binding obligation of the Property Trustee,
enforceable against it in accordance with its terms, subject to applicable
bankruptcy, reorganization, moratorium, insolvency and other similar laws
affecting creditors' rights generally and to general principles of equity
and the discretion of the court (regardless of whether the enforcement of
such remedies is considered in a proceeding in equity or at law).
(c) The execution, delivery and performance of this Trust
Agreement by the Property Trustee does not conflict with or constitute a
breach of the certificate of incorporation or by-laws of the Property
Trustee.
(d) At the Time of Delivery, the Property Trustee has not
knowingly created any Liens or encumbrances on the Trust Securities.
(e) No consent, approval or authorization of, or registration
with or notice to, any New York State or federal banking authority is
required for the execution, delivery or performance by the Property Trustee,
of this Trust Agreement.
32
(f) The Delaware Trustee is duly organized, validly existing
and in good standing under the laws of the State of Delaware, with trust
power and authority to execute and deliver, and to carry out and perform its
obligations under the terms of, the Trust Agreement.
(g) The execution, delivery and performance by the Delaware
Trustee of this Trust Agreement has been duly authorized by all necessary
corporate action on the part of the Delaware Trustee; and this Trust
Agreement has been duly executed and delivered by the Delaware Trustee, and
constitutes a legal, valid and binding obligation of the Delaware Trustee,
enforceable against it in accordance with its terms, subject to applicable
bankruptcy, reorganization, moratorium, insolvency and other similar laws
affecting creditors' right generally and to general principles of equity and
the discretion of the court (regardless of whether the enforcement of such
remedies is considered in a proceeding in equity or at law).
(h) The execution, delivery and performance of this Trust
Agreement by the Delaware Trustee does not conflict with or constitute a
breach of the certificate of incorporation or by-laws of the Delaware
Trustee.
(i) No consent, approval or authorization of, or registration
with or notice to any state or Federal banking authority is required for the
execution, delivery or performance by the Delaware Trustee, of this Trust
Agreement.
(j) The Delaware Trustee is an entity which has its principal
place of business in the State of Delaware.
Section 7.2. Representations and Warranties of the Depositor.
-----------------------------------------------
The Depositor hereby represents and warrants for the benefit of the Holders
that:
(a) the Trust Securities Certificates issued at the Time of
Delivery on behalf of the Issuer Trust have been duly authorized and will
have been duly and validly executed, and, subject to payment therefor,
issued and delivered by the Issuer Trustees pursuant to the terms and
provisions of, and in accordance with the requirements of, this Trust
Agreement, and the Holders will be, as of each such date, entitled to the
benefits of this Trust Agreement; and
(b) there are no taxes, fees or other governmental charges
payable by the Issuer Trust (or the Issuer Trustees on behalf of the Issuer
Trust) under the laws of the State of Delaware or any political subdivision
thereof in connection with the execution, delivery and performance by either
the Property Trustee or the Delaware Trustee, as the case may be, of this
Trust Agreement.
ARTICLE VIII
------------
THE ISSUER TRUSTEES; THE ADMINISTRATORS
---------------------------------------
Section 8.1. Certain Duties and Responsibilities.
-----------------------------------
(a) The duties and responsibilities of the Issuer Trustees and
the Administrators shall be as provided by this Trust Agreement and, in the
case of the Property Trustee, by the Trust Indenture Act. Notwithstanding
the foregoing, no provision of this Trust Agreement shall require the Issuer
Trustees or the Administrators to expend or risk their own funds or
otherwise incur any financial liability in the performance of any of their
duties hereunder, or in the exercise of any of their rights or powers, if
they
33
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured
to it or them. Whether or not therein expressly so provided, every provision
of this Trust Agreement relating to the conduct or affecting the liability
of or affording protection to the Issuer Trustees or the Administrators
shall be subject to the provisions of this Section 8.1. Nothing in this
Trust Agreement shall be construed to release an Administrator or any of the
Issuer Trustees from liability for his or its own negligent action, his or
its own negligent failure to act, or his or its own willful misconduct. To
the extent that, at law or in equity, an Issuer Trustee or Administrator has
duties and liabilities relating to the Issuer Trust or to the Holders, such
Issuer Trustee or Administrator shall not be liable to the Issuer Trust or
to any Holder for such Issuer Trustee's or Administrator's good faith
reliance on the provisions of this Trust Agreement. The provisions of this
Trust Agreement, to the extent that they restrict the duties and liabilities
of the Issuer Trustees and Administrators otherwise existing at law or in
equity, are agreed by the Depositor and the Holders to replace such other
duties and liabilities of the Issuer Trustees and Administrators.
(b) All payments made by the Property Trustee or a Paying
Agent in respect of the Trust Securities shall be made only from the revenue
and proceeds from the Trust Property and only to the extent that there shall
be sufficient revenue or proceeds from the Trust Property to enable the
Property Trustee or a Paying Agent to make payments in accordance with the
terms hereof. Each Holder, by his or its acceptance of a Trust Security,
agrees that he or it will look solely to the revenue and proceeds from the
Trust Property to the extent legally available for distribution to it or him
as herein provided and that neither the Issuer Trustees nor the
Administrators are personally liable to it or him for any amount
distributable in respect of any Trust Security or for any other liability in
respect of any Trust Security. This Section 8.1(b) does not limit the
liability of the Issuer Trustees expressly set forth elsewhere in this Trust
Agreement or, in the case of the Property Trustee, in the Trust Indenture
Act.
(c) The Property Trustee, before the occurrence of any Event
of Default and after the curing of all Events of Default that may have
occurred, shall undertake to perform only such duties as are specifically
set forth in this Trust Agreement (including pursuant to Section 10.10), and
no implied covenants shall be read into this Trust Agreement against the
Property Trustee. If an Event of Default has occurred (that has not been
cured or waived pursuant to Section 5.13 of the Indenture), the Property
Trustee shall enforce this Trust Agreement for the benefit of the Holders
and shall exercise such of the rights and powers vested in it by this Trust
Agreement, and use the same degree of care and skill in its exercise
thereof, as a prudent person would exercise or use under the circumstances
in the conduct of his or her own affairs.
(d) No provision of this Trust Agreement shall be construed to
relieve the Property Trustee from liability for its own negligent action,
its own negligent failure to act, or its own willful misconduct, except
that:
(i) prior to the occurrence of any Event of Default and
after the curing or waiving of all such Events of Default that may
have occurred:
(A) the duties and obligations of the Property
Trustee shall be determined solely by the express
provisions of this Trust Agreement (including pursuant to
Section 10.10), and the Property Trustee shall not be
liable except for the performance of such duties and
obligations as are specifically set forth in this Trust
Agreement (including pursuant to Section 10.10); and
34
(B) in the absence of bad faith on the part of
the Property Trustee, the Property Trustee may
conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon
any certificates or opinions furnished to the Property
Trustee and conforming to the requirements of this Trust
Agreement; but in the case of any such certificates or
opinions that by any provision hereof or of the Trust
Indenture Act are specifically required to be furnished to
the Property Trustee, the Property Trustee shall be under
a duty to examine the same to determine whether or not
they conform to the requirements of this Trust Agreement;
(ii) the Property Trustee shall not be liable for any
error of judgment made in good faith by an authorized officer of
the Property Trustee, unless it shall be proved that the Property
Trustee was negligent in ascertaining the pertinent facts;
(iii) the Property Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good
faith in accordance with the direction of the Holders of a Majority
in Liquidation Amount of the Preferred Securities relating to the
time, method and place of conducting any proceeding for any remedy
available to the Property Trustee, or exercising any trust or power
conferred upon the Property Trustee under this Trust Agreement;
(iv) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Junior
Subordinated Debentures and the Payment Account shall be to deal
with such Property in a similar manner as the Property Trustee
deals with similar property for its own account, subject to the
protections and limitations on liability afforded to the Property
Trustee under this Trust Agreement and the Trust Indenture Act;
(v) the Property Trustee shall not be liable for any
interest on any money received by it except as it may otherwise
agree with the Depositor; and money held by the Property Trustee
need not be segregated from other funds held by it except in
relation to the Payment Account maintained by the Property Trustee
pursuant to Section 3.1 and except to the extent otherwise required
by law;
(vi) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrators or the Depositor
with their respective duties under this Trust Agreement, nor shall
the Property Trustee be liable for the default or misconduct of any
other Issuer Trustee, the Administrators or the Depositor; and
(vii) no provision of this Trust Agreement shall require
the Property Trustee to expend or risk its own funds or otherwise
incur personal financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers, if the
Property Trustee shall have reasonable grounds for believing that
the repayment of such funds or liability is not reasonably assured
to it under the terms of this Trust Agreement or adequate indemnity
against such risk or liability is not reasonably assured to it.
(e) The Administrators shall not be responsible for monitoring
the compliance by the Issuer Trustees or the Depositor with their respective
duties under this Trust Agreement, nor shall either Administrator be liable
for the default or misconduct of any other Administrator, the Issuer
Trustees or the Depositor.
35
Section 8.2. Certain Notices.
---------------
(a) Within five Business Days after the occurrence of any
Event of Default actually known to a Responsible Officer of the Property
Trustee, the Property Trustee shall transmit, in the manner and to the
extent provided in Section 10.8, notice of such Event of Default to the
Holders and the Administrators, unless such Event of Default shall have been
cured or waived.
(b) Within five Business Days after the receipt of notice of
the Depositor's exercise of its right to defer the payment of interest on
the Junior Subordinated Debentures pursuant to the Indenture, the Property
Trustee shall transmit, in the manner and to the extent provided in Section
10.8, notice of such exercise to the Holders and the Administrators, unless
such exercise shall have been revoked.
(c) In the event the Property Trustee receives notice of the
Depositor's exercise of its right to shorten the stated maturity of the
Junior Subordinated Debentures as provided in Section 3.16 of the Indenture,
the Property Trustee shall give notice of such shortening of the stated
maturity to the Holders at least 30 but not more than 60 days before the
effective date thereof.
Section 8.3. Certain Rights of Property Trustee. Subject to the
----------------------------------
provisions of Section 8.1:
(a) the Property Trustee may rely and shall be fully protected
in acting or refraining from acting in good faith upon any resolution,
Opinion of Counsel, certificate, written representation of a Holder or
transferee, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any direction or act of the Depositor contemplated by this
Trust Agreement shall be sufficiently evidenced by an Officers' Certificate;
(c) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any financing
or continuation statement or any filing under tax or securities laws) or any
re-recording, refiling or re-registration thereof;
(d) the Property Trustee may consult with counsel of its own
choosing (which counsel may be counsel to the Depositor or any of its
Affiliates, and may include any of its employees) and the advice of such
counsel shall be full and complete authorization and protection in respect
of any action taken suffered or omitted by it hereunder in good faith and in
reliance thereon and in accordance with such advice; and the Property
Trustee shall have the right at any time to seek instructions concerning the
administration of this Trust Agreement from any court of competent
jurisdiction;
(e) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Trust Agreement at
the request or direction of any of the Holders pursuant to this Trust
Agreement, unless such Holders shall have offered to the Property Trustee
security or indemnity satisfactory to it against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction; provided that, nothing contained in this Section 8.3(e) shall be
taken to relieve the Property Trustee, upon the occurrence of an Event of
Default, of its obligation to exercise the rights and powers vested in it by
this Trust Agreement;
36
(f) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond, debenture, note or other evidence of
indebtedness or other paper or document, unless requested in writing to do
so by one or more Holders, but the Property Trustee may make such further
inquiry or investigation into such facts or matters as it may see fit;
(g) the Property Trustee may execute any of the trusts or
powers hereunder or perform any of its duties hereunder either directly or
by or through its agents or attorneys, provided that the Property Trustee
shall not be responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder;
(h) whenever in the administration of this Trust Agreement the
Property Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder, the Property Trustee (i) may request instructions from the
Holders (which instructions may only be given by the Holders of the same
proportion in Liquidation Amount of the Trust Securities as would be
entitled to direct the Property Trustee under the terms of the Trust
Securities in respect of such remedy, right or action), (ii) may refrain
from enforcing such remedy or right or taking such other action until such
instructions are received, and (iii) shall be fully protected in acting in
accordance with such instructions; and
(i) except as otherwise expressly provided by this Trust
Agreement, the Property Trustee shall not be under any obligation to take
any action that is discretionary under the provisions of this Trust
Agreement.
No provision of this Trust Agreement shall be deemed to impose any
duty or obligation on any Issuer Trustee or Administrator to perform any act
or acts or exercise any right, power, duty or obligation conferred or
imposed on it, in any jurisdiction in which it shall be illegal, or in which
the Property Trustee shall be unqualified or incompetent in accordance with
applicable law, to perform any such act or acts, or to exercise any such
right, power, duty or obligation. No permissive power or authority available
to any Issuer Trustee or Administrator shall be construed to be a duty.
Section 8.4. Not Responsible for Recitals or Issuance of
-------------------------------------------
Securities. The recitals contained herein and in the Trust Securities
----------
Certificates shall be taken as the statements of the Issuer Trust, and the
Issuer Trustees and the Administrators do not assume any responsibility for
their correctness. The Issuer Trustees and the Administrators shall not be
accountable for the use or application by the Depositor of the proceeds of
the Junior Subordinated Debentures.
Section 8.5. May Hold Securities. Except as provided in the
-------------------
definition of the term "Outstanding" in Article I, the Administrators, any
Issuer Trustee or any other agent of any Issuer Trustee or the Issuer Trust,
in its individual or any other capacity, may become the owner or pledgee of
Trust Securities and, subject to Sections 8.8 and 8.13, may otherwise deal
with the Issuer Trust with the same rights it would have if it were not an
Administrator, Issuer Trustee or such other agent.
Section 8.6. Compensation; Indemnity; Fees. The Depositor agrees:
-----------------------------
(a) to pay to the Issuer Trustees from time to time reasonable
compensation for all services rendered by them hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation
of a trustee of an express trust);
37
(b) to reimburse the Issuer Trustees and the Administrators
upon request for all reasonable expenses, disbursements and advances
incurred or made by the Issuer Trustees in accordance with any provision of
this Trust Agreement (including the reasonable compensation, expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to the Issuer Trustees' bad
faith, negligence or willful misconduct; and
(c) to the fullest extent permitted by applicable law, to
indemnify and hold harmless (i) each Issuer Trustee, (ii) each
Administrator, (iii) any Affiliate of any Issuer Trustee, (iv) any officer,
director, shareholder, employee, representative or agent of any Issuer
Trustee, and (v) any employee or agent of the Issuer Trust (referred to
herein as an "Indemnified Person"), from and against any loss, damage,
liability, tax (excluding income taxes, other than taxes referred to in
Sections 4.5 and 4.6 hereunder), penalty, expense or claim of any kind or
nature whatsoever incurred by such Indemnified Person arising out of or in
connection with the creation, operation or dissolution of the Issuer Trust
or any act or omission performed or omitted by such Indemnified Person in
good faith on behalf of the Issuer Trust and in a manner such Indemnified
Person reasonably believed to be within the scope of authority conferred on
such Indemnified Person by this Trust Agreement, except that no Indemnified
Person shall be entitled to be indemnified in respect of any loss, damage or
claim incurred by such Indemnified Person by reason of bad faith, negligence
or willful misconduct with respect to such acts or omissions. The
indemnification provided to an Indemnified Party in this Trust Agreement
shall not be exclusive and nothing in this Trust Agreement shall limit any
indemnification for actions taken in connection with this Trust Agreement or
otherwise which may be available or provided to such Indemnified Party under
other sources.
The provisions of this Section 8.6 shall survive the termination of
this Trust Agreement.
No Issuer Trustee may claim any lien or charge on any Trust
Property as a result of any amount due pursuant to this Section 8.6.
The Depositor, any Administrator and any Issuer Trustee may engage
in or possess an interest in other business ventures of any nature or
description, independently or with others, similar or dissimilar to the
business of the Issuer Trust, and the Issuer Trust and the Holders of Trust
Securities shall have no rights by virtue of this Trust Agreement in and to
such independent ventures or the income or profits derived therefrom, and
the pursuit of any such venture, even if competitive with the business of
the Issuer Trust, shall not be deemed wrongful or improper. Neither the
Depositor, any Administrator nor any Issuer Trustee shall be obligated to
present any particular investment or other opportunity to the Issuer Trust
even if such opportunity is of a character that, if presented to the Issuer
Trust, could be taken by the Issuer Trust, and the Depositor, any
Administrator or any Issuer Trustee shall have the right to take for its own
account (individually or as a partner or fiduciary) or to recommend to
others any such particular investment or other opportunity. Any Issuer
Trustee may engage or be interested in any financial or other transaction
with the Depositor or any Affiliate of the Depositor, or may act as
depository for, trustee or agent for, or act on any committee or body of
holders of, securities or other obligations of the Depositor or its
Affiliates.
Section 8.7. Corporate Property Trustee Required; Eligibility of
---------------------------------------------------
Trustees and Administrators.
---------------------------
(a) There shall at all times be a Property Trustee hereunder
with respect to the Trust Securities. The Property Trustee shall be a Person
that is a national or state chartered bank and eligible pursuant to the
Trust Indenture Act to act as such and has a combined capital and surplus of
at least $50,000,000. If any such Person publishes reports of condition at
least annually, pursuant to law or to
38
the requirements of its supervising or examining authority, then for the
purposes of this Section 8.7, the combined capital and surplus of such
Person shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time the
Property Trustee with respect to the Trust Securities shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article VIII. At the time of appointment, the Property Trustee must have
securities rated in one of the three highest rating categories by a
nationally recognized statistical rating organization.
(b) There shall at all times be one or more Administrators
hereunder. Each Administrator shall be either a natural person who is at
least 21 years of age or a legal entity that shall act through one or more
persons authorized to bind that entity. An employee, officer or Affiliate of
the Depositor may serve as an Administrator.
(c) There shall at all times be a Delaware Trustee. The
Delaware Trustee shall either be (i) a natural person who is at least 21
years of age and a resident of the State of Delaware or (ii) a legal entity
with its principal place of business in the State of Delaware and that
otherwise meets the requirements of applicable Delaware law that shall act
through one or more persons authorized to bind such entity.
Section 8.8. Conflicting Interests.
---------------------
(a) If the Property Trustee has or shall acquire a conflicting
interest within the meaning of the Trust Indenture Act, the Property Trustee
shall either eliminate such interest or resign, to the extent and in the
manner provided by, and subject to the provisions of, the Trust Indenture
Act and this Trust Agreement.
(b) The Guarantee Agreement and the Indenture shall be deemed
to be specifically described in this Trust Agreement for the purposes of
clause (i) of the first proviso contained in Section 310(b) of the Trust
Indenture Act.
Section 8.9. Co-Trustees and Separate Trustee.
--------------------------------
(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 Property Trustee
shall have power to appoint, and upon the written request of the Property
Trustee, the Depositor and the Administrators shall for such purpose join
with the Property Trustee in the execution, delivery, and performance of all
instruments and agreements necessary or proper to appoint, one or more
Persons approved by the Property Trustee either to act as co-trustee,
jointly with the Property Trustee, of all or any part of such Trust
Property, or to the extent required by law to act as separate trustee of any
such property, in either case with such powers as may be provided in the
instrument of appointment, and to vest in such Person or Persons in the
capacity aforesaid, any property, title, right or power deemed necessary or
desirable, subject to the other provisions of this Section 8.9. Any
co-trustee or separate trustee appointed pursuant to this Section 8.9 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
39
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 by one or more
Administrators, and the Trust Securities shall be executed and
delivered and all rights, powers, duties, and obligations hereunder
in respect of the custody of securities, cash and other personal
property held by, or required to be deposited or pledged with, the
Property Trustees specified hereunder, shall be exercised, solely
by the Property Trustee and not by such co-trustee or separate
trustee.
(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 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, and, in case a
Debenture Event of Default has occurred and is continuing, the
Property Trustee shall have power to accept the resignation of, or
remove, any such co-trustee or separate trustee without the
concurrence of the Depositor. Upon the written request of the
Property Trustee, the Depositor shall join with the Property
Trustee in the execution, delivery and performance of all
instruments and agreements necessary or proper to effectuate such
resignation or removal. A successor to any co-trustee or separate
trustee so resigned or removed may be appointed in the manner
provided in this Section 8.9.
(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 8.10. Resignation and Removal; Appointment of Successor.
-------------------------------------------------
(a) No resignation or removal of any Issuer Trustee (the
"Relevant Trustee") and no appointment of a successor Issuer Trustee
pursuant to this Article VIII shall become effective until the acceptance of
appointment by the successor Issuer Trustee in accordance with the
applicable requirements of Section 8.11.
40
(b) Subject to Section 8.10(a), a Relevant Trustee may resign
at any time by giving written notice thereof to the Holders. The Relevant
Trustee shall appoint a successor by requesting from at least three Persons
meeting the eligibility requirements its expenses and charges to serve as
the successor Issuer Trustee on a form provided by the Administrators, and
selecting the Person who agrees to the lowest expenses and charges, subject
to the prior consent of the Depositor which consent shall not be
unreasonably withheld. If the instrument of acceptance by the successor
Issuer Trustee required by Section 8.11 shall not have been delivered to the
Relevant Trustee within 60 days after the giving of such notice of
resignation, the Relevant Trustee may petition, at the expense of the Issuer
Trust, any court of competent jurisdiction for the appointment of a
successor Issuer Trustee.
(c) The Property Trustee or the Delaware Trustee may be
removed at any time by Act of the Holders of a Majority in Liquidation
Amount of the Preferred Securities, delivered to the Relevant Trustee (in
its individual capacity and on behalf of the Issuer Trust) (i) for Cause, or
(ii) if a Debenture Event of Default shall have occurred and be continuing
at any time.
(d) If a resigning Relevant Trustee shall fail to appoint a
successor, or if a Relevant Trustee shall be removed or become incapable of
acting as Issuer Trustee, or if any vacancy shall occur in the office of any
Issuer Trustee for any cause, the Holders of the Preferred Securities, by
Act of the Holders of record of not less than 25% aggregate Liquidation
Amount of the Preferred Securities then Outstanding delivered to such
Relevant Trustee, shall promptly appoint a successor Issuer Trustee or
Trustees, and such successor Issuer Trustee shall comply with the applicable
requirements of Section 8.11. If no successor Issuer Trustee shall have been
so appointed by the Holders of the Preferred Securities and accepted
appointment in the manner required by Section 8.11, any Holder, on behalf of
himself and all others similarly situated, or any other Issuer Trustee, may
petition any court in the State of Delaware for the appointment of a
successor Issuer Trustee.
(e) The Property Trustee shall give notice of each resignation
and each removal of a Relevant Trustee and each appointment of a successor
Issuer Trustee to all Holders in the manner provided in Section 10.8 and
shall give notice to the Depositor and to the Administrators. Each notice
shall include the name of the Relevant Trustee and the address of its
Corporate Trust Office if it is the Property Trustee.
(f) Notwithstanding the foregoing or any other provision of
this Trust Agreement, in the event any Delaware Trustee who is a natural
person dies or becomes, in the opinion of the Holders of the Common
Securities, incompetent or incapacitated, the vacancy created by such death,
incompetence or incapacity may be filled by the Property Trustee following
the procedures regarding expenses and charges set forth above (with the
successor in each case being a Person who satisfies the eligibility
requirement for Delaware Trustee set forth in Section 8.7).
Section 8.11. Acceptance of Appointment by Successor.
--------------------------------------
(a) In case of the appointment hereunder of a successor Issuer
Trustee, the retiring Relevant Trustee and each such successor Issuer
Trustee with respect to the Trust Securities shall execute, acknowledge and
deliver an instrument wherein each successor Issuer Trustee shall accept
such appointment and which shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Issuer Trustee all the rights, powers, trusts and duties of the
retiring Relevant Trustee with respect to the Trust Securities and the
Issuer 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 Issuer
Trustee, without any further act,
41
deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the Relevant Trustee; but, on request of the Issuer Trust or
any successor Issuer Trustee such Relevant Trustee shall duly assign,
transfer and deliver to such successor Issuer Trustee all Trust Property,
all proceeds thereof and money held by such Relevant Trustee hereunder with
respect to the Trust Securities and the Issuer Trust.
(b) Upon request of any such successor Issuer Trustee, the
Issuer Trust shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Issuer Trustee all
such rights, powers and trusts referred to in the first or second preceding
paragraph, as the case may be.
(c) No successor Issuer Trustee shall accept its appointment
unless at the time of such acceptance such successor Issuer Trustee shall be
qualified and eligible under this Article VIII.
Section 8.12. Merger, Conversion, Consolidation or Succession
-----------------------------------------------
to Business. Any Person into which the Property Trustee or the Delaware
-----------
Trustee may be merged or converted or with which it may be consolidated, or
any Person resulting from any merger, conversion or consolidation to which
such Relevant Trustee shall be a party, or any Person succeeding to all or
substantially all the corporate trust business of such Relevant Trustee,
shall be the successor of such Relevant Trustee hereunder, provided that
such Person shall be otherwise qualified and eligible under this Article
VIII, without the execution or filing of any paper or any further act on the
part of any of the parties hereto.
Section 8.13. Preferential Collection of Claims Against
-----------------------------------------
Depositor or Issuer Trust. If and when the Property Trustee shall be or
-------------------------
become a creditor of the Depositor (or any other obligor upon Junior
Subordinated Debentures or the Trust Securities), the Property Trustee shall
be subject to the provisions of the Trust Indenture Act regarding the
collection of claims against the Depositor or the Issuer Trust (or any such
other obligor) as is required by the Trust Indenture Act.
Section 8.14. Trustee May File Proofs of Claim. In case of any
--------------------------------
receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition, or other similar judicial proceeding
relative to the Issuer Trust or any other obligor upon the Trust Securities
or the property of the Issuer Trust or of such other obligor, the Property
Trustee (irrespective of whether any Distributions on the Trust Securities
shall then be due and payable and irrespective of whether the Property
Trustee shall have made any demand on the Issuer Trust for the payment of
any past due Distributions) shall be entitled and empowered, to the fullest
extent permitted by law, by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of any
Distributions owing and unpaid in respect of the Trust Securities and to
file such other papers or documents as may be necessary or advisable in
order to have the claims of the Property Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Property Trustee, its agents and counsel) and of the Holders allowed in such
judicial proceeding, and
(b) to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same; and
any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Property Trustee and, in the
event the Property Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Property Trustee any amount due it
for the reasonable compensation, expenses, disbursements and advances of the
Property Trustee, its agents and counsel, and any other amounts due the
Property Trustee.
42
Nothing herein contained shall be deemed to authorize the Property
Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or compensation
affecting the Trust Securities or the rights of any Holder thereof or to
authorize the Property Trustee to vote in respect of the claim of any Holder
in any such proceeding.
Section 8.15. Reports by Property Trustee.
---------------------------
(a) Within 60 days of January 31 of each year commencing with
January 31, 2002, the Property Trustee shall transmit to all Holders in
accordance with Section 10.8, and to the Depositor, a brief report dated as
of the immediately preceding January 31 with respect to:
(i) its eligibility under Section 8.7 or, in lieu
thereof, if to the best of its knowledge it has continued to be
eligible under said Section, a written statement to such effect;
and
(ii) any change in the property and funds in its
possession as Property Trustee since the date of its last report
and any action taken by the Property Trustee in the performance of
its duties hereunder which it has not previously reported and which
in its opinion materially affects the Trust Securities.
(b) In addition, the Property Trustee shall transmit to
Holders such reports concerning the Property Trustee and its actions under
this Trust Agreement as may be required pursuant to the Trust Indenture Act
at the times and in the manner provided pursuant thereto as set forth in
Section 10.10 of this Trust Agreement.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Property Trustee with the
Depositor.
Section 8.16. Reports to the Property Trustee. The Depositor
-------------------------------
and the Administrators on behalf of the Issuer Trust shall provide to the
Property Trustee such documents, reports and information as required by
Section 314 of the Trust Indenture Act and the compliance certificate
required by Section 314(a) of the Trust Indenture Act in the form, in the
manner and at the times required by Section 314 of the Trust Indenture Act,
as set forth in Section 10.10 of this Trust Agreement. The Depositor and the
Administrators shall annually file with the Property Trustee a certificate
specifying whether such Person is in compliance with all the terms and
covenants applicable to such Person hereunder.
Section 8.17. Evidence of Compliance with Conditions Precedent.
------------------------------------------------
Each of the Depositor and the Administrators on behalf of the Issuer Trust
shall provide to the Property Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Trust Agreement that
relate to any of the matters set forth in Section 314(c) of the Trust
Indenture Act as set forth in Section 10.10 of this Trust Agreement. Any
certificate or opinion required to be given by an officer pursuant to
Section 314(c)(1) of the Trust Indenture Act shall be given in the form of
an Officers' Certificate.
Section 8.18. Number of Issuer Trustees.
-------------------------
(a) The number of Issuer Trustees shall be two. The Property
Trustee and the Delaware Trustee may be the same Person, in which event the
number of Issuer Trustees shall be one.
43
(b) If an Issuer Trustee ceases to hold office for any reason,
a vacancy shall occur. The vacancy shall be filled with an Issuer Trustee
appointed in accordance with Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of an Issuer Trustee shall
not operate to dissolve, terminate or annul the Issuer Trust or terminate
this Trust Agreement.
Section 8.19. Delegation of Power.
-------------------
(a) Any Administrator may, by power of attorney consistent
with applicable law, delegate to any other natural person over the age of 21
his or her power for the purpose of executing any documents contemplated in
Section 2.7(a) or making any governmental filing.
(b) The Administrators shall have power to delegate from time
to time to such of their number the doing of such things and the execution
of such instruments either in the name of the Issuer Trust or the names of
the Administrators or otherwise as the Administrators may deem expedient, to
the extent such delegation is not prohibited by applicable law or contrary
to the provisions of this Trust Agreement.
Section 8.20. Appointment of Administrators.
-----------------------------
(a) The Administrators (other than the initial Administrators)
shall be appointed by the Holders of a Majority in Liquidation Amount of the
Common Securities and all Administrators (including the initial
Administrators) may be removed by the Holders of a Majority in Liquidation
Amount of the Common Securities or may resign at any time. If at any time
there is no Administrator, the Property Trustee or any Holder who has been a
Holder of Trust Securities for at least six months may petition any court of
competent jurisdiction for the appointment of one or more Administrators.
(b) Whenever a vacancy in the number of Administrators shall
occur, until such vacancy is filled by the appointment of an Administrator
in accordance with this Section 8.20, the Administrators in office,
regardless of their number (and notwithstanding any other provision of this
Trust Agreement), shall have all the powers granted to the Administrators
and shall discharge all the duties imposed upon the Administrators by this
Trust Agreement.
(c) Notwithstanding the foregoing or any other provision of
this Trust Agreement, in the event any Administrator or a Delaware Trustee
who is a natural person dies or becomes, in the opinion of the Holders of a
Majority in Liquidation Amount of the Common Securities, incompetent or
incapacitated, the vacancy created by such death, incompetence or incapacity
may be filled by the remaining Administrators, if there were at least two of
them prior to such vacancy and by the Depositor, if there were not two such
Administrators immediately prior to such vacancy (with the successor in each
case being a Person who satisfies the eligibility requirement for
Administrators or Delaware Trustee, as the case may be, set forth in Section
8.7).
(d) Except as otherwise provided in this Trust Agreement or by
applicable law, any one Administrator may execute any document or otherwise
take any action which the Administrators are authorized to take under this
Trust Agreement.
44
ARTICLE IX
----------
DISSOLUTION, LIQUIDATION AND MERGER
-----------------------------------
Section 9.1. Dissolution Upon Expiration Date. Unless earlier
--------------------------------
dissolved, the Issuer Trust shall automatically dissolve on June 8, 2031
(the "Expiration Date").
Section 9.2. Early Dissolution. The first to occur of any of
-----------------
the following events is an "Early Termination Event," upon the occurrence of
which the Issuer Trust shall dissolve:
(a) the occurrence of any Bankruptcy Event with respect to the
Depositor, unless the Depositor shall transfer the Common Securities as
provided by Section 5.11, in which case this provision shall refer instead
to any Bankruptcy Event with respect to the successor Holder of the Common
Securities;
(b) delivery of the written direction to the Property Trustee
from the Holder of the Common Securities at any time to dissolve the Issuer
Trust and, after satisfaction of liabilities to creditors of the Issuer
Trust as provided by applicable law, to distribute the Junior Subordinated
Debentures to Holders in exchange for the Preferred Securities (which
direction, subject to Section 9.4(a), is optional and wholly within the
discretion of the Holder of the Common Securities);
(c) the redemption of all of the Preferred Securities in
connection with the redemption of all the Junior Subordinated Debentures; and
(d) the entry of an order for dissolution of the Issuer Trust by a
court of competent jurisdiction.
Section 9.3. Termination. The respective obligations and
-----------
responsibilities of the Issuer Trustees, the Administrators and the Issuer
Trust created and continued hereby shall terminate upon the latest to occur
of the following: (a) the distribution by the Property Trustee to Holders of
all amounts required to be distributed hereunder upon the liquidation of the
Issuer Trust pursuant to Section 9.4, or upon the redemption of all of the
Trust Securities pursuant to Section 4.2, (b) the payment of any expenses
owed by the Issuer Trust, (c) the discharge of all administrative duties of
the Administrators, including the performance of any tax reporting
obligations with respect to the Issuer Trust or the Holders, and (d) the
filing of a certificate of cancellation with the Delaware Secretary of State
pursuant to Section 3810 of the Delaware Business Trust Act.
Section 9.4. Liquidation.
-----------
(a) If an Early Termination Event specified in clause (a), (b)
or (d) of Section 9.2 occurs or upon the Expiration Date, the Issuer Trust
shall be liquidated by the Property Trustee as expeditiously as the Property
Trustee determines to be possible by distributing, after satisfaction of
liabilities to creditors of the Issuer Trust as provided by applicable law,
to each Holder a Like Amount of Junior Subordinated Debentures, subject to
Section 9.4(d). Notice of liquidation shall be given by the Property Trustee
by first-class mail, postage prepaid, mailed not later than 15 nor more than
45 days prior to the Liquidation Date to each Holder of Trust Securities at
such Holder's address appearing in the Securities Register. All notices of
liquidation shall:
(i) state the Liquidation Date;
45
(ii) state that, from and after the Liquidation Date, the
Trust Securities will no longer be deemed to be Outstanding and any
Trust Securities Certificates not surrendered for exchange will be
deemed to represent a Like Amount of Junior Subordinated
Debentures; and
(iii) provide such information with respect to the
mechanics by which Holders may exchange Trust Securities
Certificates for Junior Subordinated Debentures, or if Section
9.4(d) applies receive a Liquidation Distribution, as the
Administrators or the Property Trustee shall deem appropriate.
(b) Except where Section 9.2(c) or 9.4(d) applies, in order to
effect the liquidation of the Issuer Trust and distribution of the Junior
Subordinated Debentures to Holders, the Property Trustee shall establish a
record date for such distribution (which shall be not more than 30 days
prior to the Liquidation Date) and, either itself acting as exchange agent
or through the appointment of a separate exchange agent, shall establish
such procedures as it shall deem appropriate to effect the distribution of
Junior Subordinated Debentures in exchange for the Outstanding Trust
Securities Certificates.
(c) Except where Section 9.2(c) or 9.4(d) applies, after the
Liquidation Date, (i) the Trust Securities will no longer be deemed to be
Outstanding, (ii) the Clearing Agency for the Preferred Securities or its
nominee, as the registered Holder of the Global Preferred Securities
Certificate, shall receive a registered global certificate or certificates
representing the Junior Subordinated Debentures to be delivered upon such
distribution with respect to Preferred Securities held by the Clearing
Agency or its nominee, and (iii) any Trust Securities Certificates not held
by the Clearing Agency for the Preferred Securities or its nominee as
specified in clause (ii) above will be deemed to represent Junior
Subordinated Debentures having a principal amount equal to the stated
Liquidation Amount of the Trust Securities represented thereby and bearing
accrued and unpaid interest in an amount equal to the accumulated and unpaid
Distributions on such Trust Securities until such certificates are presented
to the Securities Registrar for transfer or reissuance.
(d) If, notwithstanding the other provisions of this Section
9.4, whether because of an order for dissolution entered by a court of
competent jurisdiction or otherwise, distribution of the Junior Subordinated
Debentures is not practical, or if any Early Termination Event specified in
clause (c) of Section 9.2 occurs, the Trust Property shall be liquidated,
and the Issuer Trust shall be liquidated by the Property Trustee in such
manner as the Property Trustee determines. In such event, on the date of the
dissolution of the Issuer Trust, Holders will be entitled to receive out of
the assets of the Issuer Trust available for distribution to Holders, after
satisfaction of liabilities to creditors of the Issuer Trust as provided by
applicable law, an amount equal to the aggregate of 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, the Liquidation Distribution can be paid only in part
because the Issuer Trust has insufficient assets available to pay in full
the aggregate Liquidation Distribution, then, subject to the next succeeding
sentence, the amounts payable by the Issuer Trust on the Trust Securities
shall be paid on a pro rata basis (based upon Liquidation Amounts). The
Holders of the Common Securities will be entitled to receive Liquidation
Distributions upon any such liquidation pro rata (determined as aforesaid)
with Holders of Preferred Securities, except that, if a Debenture Event of
Default has occurred and is continuing, the Preferred Securities shall have
a priority over the Common Securities as provided in Section 4.3.
46
(e) Following the dissolution of the Issuer Trust and after
the completion of the winding up of the affairs of the Issuer Trust, one of
the Issuer Trustees shall file a certificate of cancellation with the
Delaware Secretary of State.
Section 9.5. Mergers, Consolidations, Amalgamations or
-----------------------------------------
Replacements of the Issuer Trust. The Issuer Trust may not merge with or
--------------------------------
into, consolidate, amalgamate, or be replaced by, or convey, transfer or
lease its properties and assets substantially as an entirety to, any entity,
except pursuant to this Section 9.5 and Section 9.4. At the request of the
Holders of the Common Securities, and with the consent of the Holders of a
Majority in Liquidation Amount of the Preferred Securities but without the
consent of the Delaware Trustee or the Property Trustee, the Issuer Trust
may merge with or into, consolidate, amalgamate, or be replaced by or
convey, transfer or lease its properties and assets substantially as an
entirety to a trust organized as such under the laws of any state; provided,
however, that (a) such successor entity either (i) expressly assumes all of
the obligations of the Issuer Trust with respect to the Securities or (ii)
substitutes for the Preferred Securities other securities having
substantially the same terms as the Preferred Securities (the "Successor
Securities") so long as the Successor Securities have the same priority as
the Preferred Securities with respect to distributions and payments upon
liquidation, redemption and otherwise and which are then listed or listed
upon notification of issuance on any national securities exchange or
automated quotation system on which the trust preferred securities are then
listed, (b) a trustee of such successor entity possessing the same powers
and duties as the Property Trustee is appointed to hold the Junior
Subordinated Debentures, (c) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not cause the Preferred
Securities (including any Successor Securities) to be downgraded by any
nationally recognized statistical rating organization if the Preferred
Securities were rated by any nationally recognized statistical rating
organization immediately prior to such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, (d) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not adversely
affect the rights, preferences and privileges of the holders of the
Preferred Securities (including any Successor Securities) in any material
respect, (e) such successor entity has a purpose substantially identical to
that of the Issuer Trust, (f) prior to such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease, the Issuer Trustee
has received an Opinion of Counsel from independent counsel experienced in
such matters to the effect that (i) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not adversely
affect the rights preferences and privileges of the holders of the Preferred
Securities (including any Successor Securities) in any material respect, and
(ii) following such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease, neither the Issuer Trust nor such successor
entity will be required to register as an "investment company" under the
Investment Company Act, and (g) the Depositor or any permitted transferee to
whom it has transferred the Common Securities hereunder 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 Agreement. Notwithstanding the foregoing, the
Issuer Trust shall not, except with the consent of Holders of 100% in
Liquidation Amount of the Preferred Securities, consolidate, amalgamate,
merge with or into, or be replaced by or convey, transfer or lease its
properties and assets substantially as an entirety to any other entity or
permit any other entity to consolidate, amalgamate, merge with or into, or
replace it if such consolidation, amalgamation, merger, replacement,
conveyance, transfer or lease would cause the Issuer Trust or the successor
entity to fail or cease to be classified as a grantor trust for United
States federal income tax purposes. Any merger or similar agreement shall be
executed by the Administrators on behalf of the Issuer Trust.
Section 9.6. Listing of the Junior Subordinated Debentures. In
---------------------------------------------
the event that the Junior Subordinated Debentures are distributed to the
holders of the Preferred Securities for any reason, the
47
Depositor and the Issuer Trust will use their respective commercially
reasonable efforts to cause the Junior Subordinated Debentures to be listed,
subject to notice of issuance, at the time of such distribution, upon the
Nasdaq National Market or such other interdealer quotation system or
securities exchange or exchanges upon which the Preferred Securities are
then listed. The Depositor will thereafter comply with all registration,
filing and reporting requirements of the Nasdaq National Market or such
other interdealer quotation system or exchange or upon which the Junior
Subordinated Debentures are listed.
ARTICLE X
---------
MISCELLANEOUS PROVISIONS
------------------------
Section 10.1. Limitation of Rights of Holders. Except as set
-------------------------------
forth in Section 9.2, the bankruptcy, dissolution, termination, death or
incapacity of any Person having an interest, beneficial or otherwise, in
Trust Securities shall not operate to terminate this Trust Agreement or
dissolve, terminate or annul the Issuer Trust, nor entitle the legal
representatives or heirs of such Person or any Holder for such Person, to
claim an accounting, take any action or bring any proceeding in any court
for a partition or winding-up of the arrangements contemplated hereby, nor
otherwise affect the rights, obligations and liabilities of the parties
hereto or any of them.
Section 10.2. Amendment.
---------
(a) This Trust Agreement may be amended from time to time by
the Property Trustee, the Administrators and the Holders of a Majority in
Liquidation Amount of the Common Securities, without the consent of any
Holder of the Preferred Securities, (i) to cure any ambiguity, correct or
supplement any provision herein which may be inconsistent with any other
provision herein, or to make any other provisions with respect to matters or
questions arising under this Trust Agreement; provided, however, that such
amendment shall not adversely affect in any material respect the interests
of any Holder or (ii) to modify, eliminate, or add to any provisions of this
Trust Agreement to such extent as shall be necessary to ensure that the
Issuer Trust will be classified as a grantor trust (and not an association
taxable as a corporation) for United States federal income tax purposes at
any time that any Trust Securities are Outstanding or to ensure that the
Issuer Trust will not be required to register as an "investment company"
under the Investment Company Act.
(b) Except as provided in Section 6.1(c) or Section 10.2(c),
any provision of this Trust Agreement may be amended by the Property
Trustee, the Administrators, and the Holders of a Majority in Liquidation
Amount of the Common Securities with (i) the consent of Holders of a
Majority in Liquidation Amount of the Preferred Securities and (ii) receipt
by the Issuer Trustees of an Opinion of Counsel to the effect that such
amendment or the exercise of any power granted to the Issuer Trustees in
accordance with such amendment will not cause the Issuer Trust to fail or
cease to be classified as a grantor trust for United States federal income
tax purposes or affect the Issuer Trust's exemption from status of an
"investment company" under the Investment Company Act.
(c) In addition to and notwithstanding any other provision in
this Trust Agreement, without the consent of each affected Holder (such
consent being obtained in accordance with Section 6.3 or 6.6 hereof), this
Trust Agreement may not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely affect the
amount of any Distribution required to be made in respect of the Trust
Securities as of a specified date or (ii) restrict the right of a Holder to
institute suit for the enforcement of any such payment on or after such
date. Notwithstanding any other provision
48
herein, without the unanimous consent of the Holders (such consent being
obtained in accordance with Section 6.3 or 6.6), this Section 10.2(c) may
not be amended.
(d) Notwithstanding any other provisions of this Trust
Agreement, no Issuer Trustee shall enter into or consent to any amendment to
this Trust Agreement which would cause the Issuer Trust to fail or cease to
qualify for the exemption from status as an "investment company" under the
Investment Company Act or 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 and the Administrators, this
Trust Agreement may not be amended in a manner which imposes any additional
obligation on the Depositor or the Administrators.
(f) In the event that any amendment to this Trust Agreement is
made, the Administrators or the Property Trustee shall promptly provide to
the Depositor a copy of such amendment.
(g) Neither the Property Trustee nor the Delaware Trustee
shall be required to enter into any amendment to this Trust Agreement which
affects its own rights, duties or immunities under this Trust Agreement. The
Property Trustee shall be entitled to receive an Opinion of Counsel and an
Officers' Certificate stating that any amendment to this Trust Agreement is
in compliance with this Trust Agreement.
(h) Any amendments to this Trust Agreement pursuant to Section
10.2(a) shall become effective when notice of such amendment is given to the
Holders of the Trust Securities.
Section 10.3. Separability. In case any provision in this Trust
------------
Agreement or in the Trust Securities Certificates shall be invalid, illegal
or unenforceable, the validity, legality, and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
Section 10.4. Governing Law. THIS TRUST AGREEMENT AND THE
-------------
RIGHTS AND OBLIGATIONS OF EACH OF THE HOLDERS, THE ISSUER TRUST, THE
DEPOSITOR, THE ISSUER TRUSTEES, AND THE ADMINISTRATORS WITH RESPECT TO THIS
TRUST AGREEMENT AND THE TRUST SECURITIES SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO
THE CONFLICT OF LAWS PROVISIONS THEREOF.
Section 10.5. Payments Due on Non-Business Day. If the date
--------------------------------
fixed for any payment on any Trust Security shall be a day that is not a
Business Day, then such payment need not be made on such date but may be
made on the next succeeding day that is a Business Day (except as otherwise
provided in Section 4.2(d)), except that, if such Business Day is in the
next succeeding calendar year, payment on any Trust Security shall be made
on the immediately preceding Business Day, in each case, with the same force
and effect as though made on the date fixed for such payment, and no
Distributions shall accumulate on such unpaid amount for the period after
such date.
Section 10.6. Successors and Assigns. This Trust Agreement
----------------------
shall be binding upon and shall inure to the benefit of any successor to the
Depositor, the Issuer Trust, the Administrators, and any Issuer Trustee,
including any successor by operation of law. Except in connection with a
consolidation, merger or sale involving the Depositor that is permitted
under Article VIII of the Indenture and pursuant to
49
which the assignee agrees in writing to perform the Depositor's obligations
hereunder, the Depositor shall not assign its obligations hereunder.
Section 10.7. Headings. The Article and Section headings are
--------
for convenience only and shall not affect the construction of this Trust
Agreement.
Section 10.8. Reports, Notices and Demands.
----------------------------
(a) Any report, notice, demand or other communication that by
any provision of this Trust Agreement is required or permitted to be given
or served to or upon any Holder or the Depositor may be given or served in
writing by deposit thereof, first class postage prepaid, in the United
States mail, hand delivery or facsimile transmission, in each case,
addressed, (i) in the case of a Holder of Preferred Securities, to such
Holder as such Holder's name and address may appear on the Securities
Register; and (ii) in the case of the Holder of Common Securities or the
Depositor, to Allegiant Bancorp, Inc., ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: Corporate Secretary, facsimile no.: (▇▇▇) ▇▇▇-▇▇▇▇ or to
such other address as may be specified in a written notice by the Depositor
to the Property Trustee. Such notice, demand or other communication to or
upon a Holder shall be deemed to have been sufficiently given or made, for
all purposes, upon hand delivery, mailing or transmission. Such notice,
demand or other communication to or upon the Depositor shall be deemed to
have been sufficiently given or made only upon actual receipt of the writing
by the Depositor.
(b) Any notice, demand or other communication which by any
provision of this Trust Agreement is required or permitted to be given or
served to or upon the Issuer Trust, the Property Trustee, the Delaware
Trustee, the Administrators, or the Issuer Trust shall be given in writing
addressed (until another address is published by the Issuer Trust) as
follows: (i) with respect to the Property Trustee to Bankers Trust Company,
Four ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Corporate
Trust and Agency Group Corporate Market Services; (ii) with respect to the
Delaware Trustee to Bankers Trust (Delaware), E.A. Delle Donne Corporate
Center, ▇▇▇▇▇▇▇▇▇▇ Building, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇-▇▇▇▇, Attention: Corporate Trust Administration, and (iii)
with respect to the Administrators, to them at the address above for notices
to the Depositor, marked "Attention: Office of the Secretary." Such notice,
demand or other communication to or upon the Issuer Trust or the Property
Trustee shall be deemed to have been sufficiently given or made only upon
actual receipt of the writing by the Issuer Trust, the Property Trustee, or
such Administrator.
Section 10.9. Agreement Not to Petition. Each of the Issuer
-------------------------
Trustees, the Administrators and the Depositor agree for the benefit of the
Holders that, until at least one year and one day after the Issuer Trust has
been terminated in accordance with Article IX, they shall not file, or join
in the filing of, a petition against the Issuer Trust under any bankruptcy,
insolvency, reorganization or other similar law (including, without
limitation, the United States Bankruptcy Code) (collectively, "Bankruptcy
Laws") or otherwise join in the commencement of any proceeding against the
Issuer Trust under any Bankruptcy Law. In the event the Depositor takes
action in violation of this Section 10.9, the Property Trustee agrees, for
the benefit of Holders, that at the expense of the Depositor, it shall file
an answer with the bankruptcy court or otherwise properly contest the filing
of such petition by the Depositor against the Issuer Trust or the
commencement of such action and raise the defense that the Depositor has
agreed in writing not to take such action and should be estopped and
precluded therefrom and such other defenses, if any, as counsel for the
Issuer Trustee or the Issuer Trust may assert. If any Issuer Trustee or
Administrator takes action in violation of this Section 10.9, the Depositor
agrees, for the benefit of the Holders, that at the expense of the
Depositor, it shall file an answer with the bankruptcy court or otherwise
properly contest the filing of such petition by such Person against the
Depositor or the
50
commencement of such action and raise the defense that such Person has
agreed in writing not to take such action and should be estopped and
precluded therefrom and such other defenses, if any, as counsel for the
Depositor or the Issuer Trust may assert. The provisions of this Section
10.9 shall survive the termination of this Trust Agreement.
Section 10.10. Trust Indenture Act; Conflict with Trust Indenture
--------------------------------------------------
Act.
---
(a) Trust Indenture Act; Application. (i) This Trust Agreement
--------------------------------
is subject to the provisions of the Trust Indenture Act that are required to
be a part of this Trust Agreement and shall, to the extent applicable, be
governed by such provisions; (ii) if and to the extent that any provision of
this Trust Agreement limits, qualifies or conflicts with the duties imposed
by Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed
duties shall control; (iii) for purposes of this Trust Agreement, the
Property Trustee, to the extent permitted by applicable law and/or the rules
and regulations of the Commission, shall be the only Issuer Trustee which is
a trustee for the purposes of the Trust Indenture Act; and (iv) the
application of the Trust Indenture Act to this Trust Agreement shall not
affect the nature of the Preferred Securities and the Common Securities as
equity securities representing undivided beneficial interests in the assets
of the Issuer Trust.
(b) Lists of Holders of Preferred Securities. (i) Each of the
----------------------------------------
Depositor and the Administrators on behalf of the Issuer Trust shall provide
the Property Trustee with such information as is required under Section
312(a) of the Trust Indenture Act at the times and in the manner provided in
Section 312(a) and (ii) the Property Trustee shall comply with its
obligations under Sections 310(b), 311 and 312(b) of the Trust Indenture
Act.
(c) Reports by the Property Trustee. Within 60 days after
-------------------------------
January 31 of each year, commencing January 31, 2002, the Property Trustee
shall provide to the Holders of the Trust Securities such reports as are
required by Section 313 of the Trust Indenture Act, if any, in the form, in
the manner and at the times provided by Section 313 of the Trust Indenture
Act. The Property Trustee shall also comply with the requirements of Section
313(d) of the Trust Indenture Act.
(d) Periodic Reports to Property Trustee. Each of the
------------------------------------
Depositor and the Administrators on behalf of the Issuer Trust shall provide
to the Property Trustee, the Commission and the Holders of the Trust
Securities, as applicable, such documents, reports and information as
required by Section 314(a)(1)-(3) (if any) of the Trust Indenture Act and
the compliance certificates required by Section 314(a)(4) and (c) of the
Trust Indenture Act (provided that any certificate to be provided pursuant
to Section 314(a)(4) of the Trust Indenture Act shall be provided within 120
days of the end of each fiscal year of the Issuer Trust).
(e) Evidence of Compliance with Conditions Precedent. Each of
------------------------------------------------
the Depositor and the Administrators on behalf of the Issuer Trust shall
provide to the Property Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Trust Agreement which
relate to any of the matters set forth in Section 314(c) of the Trust
Indenture Act. Any certificate or opinion required to be given pursuant to
Section 314(c) shall comply with Section 314(e) of the Trust Indenture Act.
(f) Disclosure of Information. The disclosure of information
-------------------------
as to the names and addresses of the Holders of Trust Securities in
accordance with Section 312 of the Trust Indenture Act, regardless of the
source from which such information was derived, shall not be deemed to be a
violation of any existing law or any law hereafter enacted which does not
specifically refer to Section 312 of the Trust
51
Indenture Act, nor shall the Property Trustee be held accountable by reason
of mailing any material pursuant to a request made under Section 312(b) of
the Trust Indenture Act.
Section 10.11. Acceptance of Terms of Trust Agreement, Guarantee
-------------------------------------------------
and Indenture. THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY
-------------
INTEREST THEREIN BY OR ON BEHALF OF A HOLDER OR ANY BENEFICIAL OWNER,
WITHOUT ANY SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE
THE UNCONDITIONAL ACCEPTANCE BY THE HOLDER AND ALL OTHERS HAVING A
BENEFICIAL INTEREST IN SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS
OF THIS TRUST AGREEMENT, THE GUARANTEE AGREEMENT AND THE INDENTURE, AND THE
AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE
AGREEMENT AND THE INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE
ISSUER TRUST, SUCH HOLDER AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF
THIS TRUST AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN
THE ISSUER TRUST AND SUCH HOLDER AND SUCH OTHERS.
Section 10.12. Counterparts. This Trust Agreement may contain
------------
more than one counterpart of the signature page and this Trust Agreement may
be executed by the affixing of the signature of each of the Issuer Trustees
to one of such counterpart signature pages. All of such counterpart
signature pages shall be read as though one, and they shall have the same
force and effect as though all of the signers had signed a single signature
paper.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
52
IN WITNESS WHEREOF, the parties have caused this Amended and
Restated Trust Agreement to be duly executed as of the day and year first
above written.
ALLEGIANT BANCORP, INC., as Depositor
By:
--------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
President and Chief Executive Officer
BANKERS TRUST COMPANY, as Property Trustee
By:
--------------------------------------------
Name:
Title:
BANKERS TRUST (DELAWARE), as Delaware Trustee
By:
--------------------------------------------
Name:
Title:
Subscribed to and Accepted by, as the Initial Administrators:
---------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
53
EXHIBIT A
---------
[CERTIFICATE OF TRUST FILED WITH DELAWARE SECRETARY OF STATE]
54
EXHIBIT B
---------
[FORM OF CERTIFICATE DEPOSITARY AGREEMENT]
55
EXHIBIT C
---------
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT TO A
SUCCESSOR IN INTEREST TO THE DEPOSITOR OR AN AFFILIATE
OF THE DEPOSITOR IN COMPLIANCE WITH APPLICABLE LAW
AND SECTION 5.11 OF THE TRUST AGREEMENT
Certificate Number: C-1 Number of Common Securities: 46,754
Certificate Evidencing Common Securities
of
Allegiant Capital Trust II
_____% Common Securities
(liquidation amount $25 per Common Security)
Allegiant Capital Trust II, a statutory business trust created
under the laws of the State of Delaware (the "Issuer Trust"), hereby
certifies that Allegiant Bancorp, Inc. (the "Holder") is the registered
owner of Forty-Six Thousand Seven Hundred Fifty-Four (46,754) common
securities of the Issuer Trust representing undivided beneficial interest in
the assets of the Issuer Trust and designated the Allegiant Capital Trust II
_____% Common Securities (liquidation amount $25 per Common Security) (the
"Common Securities"). Except in accordance with Section 5.11 of the Trust
Agreement (as defined below), the Common Securities are not transferable and
any attempted transfer hereof other than in accordance therewith shall be
void. The designations, rights, privileges, restrictions, preferences and
other terms and provisions of the Common Securities are set forth in, and
this certificate and the Common Securities represented hereby are issued and
shall in all respects be subject to the terms and provisions of, the Amended
and Restated Trust Agreement of the Issuer Trust, dated as of _____ __,
2001, as the same may be amended from time to time (the "Trust Agreement")
among Allegiant Bancorp, Inc., as Depositor, Bankers Trust Company, as
Property Trustee, Bankers Trust (Delaware), as Delaware Trustee, the
Administrators named therein and the Holders of Trust Securities, including
the designation of the terms of the Common Securities as set forth therein.
The Issuer Trust will furnish a copy of the Trust Agreement to the Holder
without charge upon written request to the Issuer Trust at its principal
place of business.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
Terms used but not defined herein have the meanings set forth in
the Trust Agreement.
This Common Security shall be governed by the laws of the State of
Delaware (without giving effect to conflict of laws principles).
56
IN WITNESS WHEREOF, one of the Administrators of the Issuer Trust
has executed this certificate this __ day of _____, 2001 on behalf of the
Issuer Trust.
Allegiant Capital Trust II
By:
--------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇, Administrator
AUTHENTICATED AND REGISTERED:
BANKERS TRUST COMPANY,
as Property Trustee and Securities Registrar
By:
-----------------------------------------
Name:
Authorized Signatory
57
EXHIBIT D
---------
[IF THE PREFERRED SECURITY CERTIFICATE IS TO BE A GLOBAL PREFERRED
SECURITY CERTIFICATE, INSERT - This Preferred Security Certificate is a
Global Preferred Security Certificate within the meaning of the Trust
Agreement hereinafter referred to and is registered in the name of a
Depositary or a nominee of a Depositary. This Preferred Security Certificate
is exchangeable for Preferred Security Certificates registered in the name
of a person other than the Depositary or its nominee only in the limited
circumstances described in the Trust Agreement and may not be transferred
except as a whole by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the
Depositary, except in the limited circumstances described in the Trust
Agreement.
Unless this Preferred Security Certificate is presented by an
authorized representative of The Depository Trust Company, a New York
Corporation ("DTC"), to Allegiant Capital Trust II or its agent for
registration of transfer, exchange or payment, and any Preferred Security
Certificate issued is registered in the name of such nominee as is requested
by an authorized representative of DTC (and any payment is made to such
entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO A
PERSON IS WRONGFUL inasmuch as the registered owner hereof, has an interest
herein.]
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CERTIFICATE NUMBER: P-1 NUMBER OF PREFERRED SECURITIES: 1,200,000
CUSIP NO. ▇▇▇▇▇▇▇▇▇
CERTIFICATE EVIDENCING PREFERRED SECURITIES
OF
ALLEGIANT CAPITAL TRUST II
_____% CUMULATIVE PREFERRED SECURITIES
(LIQUIDATION AMOUNT $25 PER PREFERRED SECURITY)
Allegiant Capital Trust II, a statutory business trust created
under the laws of the State of Delaware (the "Issuer Trust"), hereby
certifies that Cede (the "Holder") is the registered owner of $30,000,000
aggregate liquidation amount of preferred securities of the Issuer Trust
representing a preferred undivided beneficial interest in the assets of the
Issuer Trust and designated the Allegiant Capital Trust II _____% Preferred
Securities (liquidation amount $25 per Preferred Security) (the "Preferred
Securities"). The Preferred Securities are transferable on the books and the
records of the Issuer Trust, in person or by a duly authorized attorney,
upon surrender of this certificate duly endorsed and in proper form for
transfer as provided in Section 5.5 of the Trust Agreement (as defined
below). The designations, rights, privileges, restrictions, preferences and
other terms and provisions of the Preferred Securities are set forth in, and
this certificate and the Preferred Securities represented hereby are issued
and shall in all respects be subject to the terms and provisions of, the
Amended and Restated Trust Agreement of the Issuer Trust, dated as of _____
__, 2001, as the same may be amended from time to time (the "Trust
Agreement"), among Allegiant Bancorp, Inc., as Depositor, Bankers Trust
Company, as Property Trustee, Bankers Trust (Delaware), as Delaware Trustee,
and the Administrators named therein, the Holders of Trust Securities,
including the designation of the terms of the Preferred Securities as set
forth therein. The Holder is entitled to the benefits of the Guarantee
Agreement entered into by Allegiant Bancorp, Inc., a Missouri corporation,
and Bankers Trust Company, as Guarantee Trustee, dated as of _____ __, 2001,
as the same may be amended from time to time (the "Guarantee Agreement"), to
the extent provided therein. The Issuer Trust will furnish a copy of the
Trust Agreement and the Guarantee Agreement to the Holder without charge
upon written request to the Issuer Trust at its principal place of business
or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
This Preferred Security shall be governed by the laws of the State
of Delaware (without giving effect to conflict of laws principles).
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IN WITNESS WHEREOF, one of the Administrators of the Issuer Trust
has executed this certificate this __ day of _____, 2001.
ALLEGIANT CAPITAL TRUST II
By:
--------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇, Administrator
AUTHENTICATED AND REGISTERED:
BANKERS TRUST COMPANY,
as Property Trustee and Securities Registrar
By:
-----------------------------------------
Name:
Authorized Signatory
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Preferred Security Certificate to:
---------------------------------------------------------
(Insert assignee's name and social security or tax
identification number)
---------------------------------------------------------
---------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints:
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
agent to transfer this Preferred Security Certificate on the books of the
Issuer Trust. The agent may substitute another to act for him or her.
Date:
-----------------------------------------
Signature:
-----------------------------------------
(Sign exactly as your name appears on
the other side of this Preferred Security
Certificate)
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant
to S.E.C. Rule 17Ad-15.
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