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AMENDED AND RESTATED
TRUST AGREEMENT
among
WSFS FINANCIAL CORPORATION, as Depositor,
WILMINGTON TRUST COMPANY,
as Property Trustee,
WILMINGTON TRUST COMPANY,
as Delaware Trustee,
and
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
Dated as of November 20, 1998
WSFS CAPITAL TRUST I
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WSFS CAPITAL TRUST I
Certain Sections of this Trust Agreement relating to Sections
310 through 318 of the Trust Indenture Act of 1939:
TRUST INDENTURE INDENTURE
ACT SECTION SECTION
----------- -------
(Subsection) 310 (a)(1). . . . . . . . . . . . . . . . . . 8.7
(a)(2). . . . . . . . . . . . . . . . . . 8.7
(a)(3). . . . . . . . . . . . . . . . . . 8.9
(a)(4).. . . . . . . . . . . . . . 2.7(a)(ii)
(b). . . . . . . . . . . . . . . . . . . 8.8
(Subsection) 311 (a) . . . . . . . . . . . . . . . . . . . 8.13
(b) . . . . . . . . . . . . . . . . . . . 8.13
(Subsection) 312 (a) . . . . . . . . . . . . . . . . . . . 5.7
(b) . . . . . . . . . . . . . . . . . . . 5.7
(c) . . . . . . . . . . . . . . . . . . . 5.7
(Subsection) 313 (a) . . . . . . . . . . . . . . . . . 8.14(a)
(a)(4). . . . . . . . . . . . . . . . .14(b)
(b) . . . . . . . . . . . . . . . . . 8.14(b)
(c) . . . . . . . . . . . . . . . . . . 10.8
(d) . . . . . . . . . . . . . . . . . 8.14(c)
(Subsection) 314 (a) . . . . . . . . . . . . . . . . . 8.15
(b) . . . . . . . . . . . . Not Applicable
(c)(1). . . . . . . . . . . . . . . . 8.16
(c)(2). . . . . . . . . . . . . . . . 8.16
(c)(3). . . . . . . . . . . .Not Applicable
(d) . . . . . . . . . . . . .Not Applicable
(e) . . . . . . . . . . . . .. . 1.1, 8.16
(Subsection) 315 (a) . . . . . . . . . . . .. 8.1(a), 8.3(a)
(b) . . . . . . . . . . . . . . . 8.2, 10.8
(c) . . . . . . . . . . . . . . . . . 8.1(a)
(d) . . . . . . . . . . . . . . .. 8.1, 8.3
(e) . . . . . . . . . . . . .Not Applicable
(Subsection) 316 (a) . . . . . . . . . . . . .Not Applicable
(a)(1)(A) . . . . . . . . . .Not Applicable
(a)(1)(B) . . . . . . . . . .Not Applicable
(a)(2). . . . . . . . . . . .Not Applicable
(b) . . . . . . . . . . . . . . . . . .5.14
(c) . . . . . . . . . . . . . . . . . 6.7
(Subsection) 317 (a)(1). . . . . . . . . . . .Not Applicable
(a)(2). . . . . . . . . . . .Not Applicable
(b) . . . . . . . . . . . . . . . . . . 5.9
(Subsection) 318 (a) . . . . . . . . . . . . . . . . . 10.10
_____________
Note: This reconciliation and tie sheet shall not, for any
purpose, be deemed to be a part of the Trust Agreement.
TABLE OF CONTENTS
ARTICLE I
DEFINED TERMS. . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.1. Definitions. . . . . . . . . . . . . . . 1
ARTICLE II
ESTABLISHMENT OF THE TRUST . . . . . . . . . . . . . . . . . 9
Section 2.1. Name . . . . . . . . . . . . . . . . . . 9
Section 2.2. Office of the Delaware Trustee;
Principal Place of Business. . . . . . 9
Section 2.3. Initial Contribution of Trust
Property; Organizational Expenses. . . 10
Section 2.4. Issuance of the Preferred Securities . . 10
Section 2.5. Issuance of the Common Securities;
Subscription and Purchase of
Debentures . . . . . . . . . . . . . . 10
Section 2.6. Declaration of Trust . . . . . . . . . . 10
Section 2.7. Authorization to Enter into Certain
Transactions . . . . . . . . . . . . . 10
Section 2.8. Assets of Trust. . . . . . . . . . . . . 13
Section 2.9. Title to Trust Property. . . . . . . . . 14
ARTICLE III
PAYMENT ACCOUNT. . . . . . . . . . . . . . . . . . . . . . . 14
Section 3.1. Payment Account. . . . . . . . . . . . . 14
ARTICLE IV
DISTRIBUTIONS; REDEMPTION. . . . . . . . . . . . . . . . . . 14
Section 4.1. Distributions. . . . . . . . . . . . . . 14
Section 4.2. Redemption . . . . . . . . . . . . . . . 15
Section 4.3. Subordination of Common Securities . . . 17
Section 4.4. Payment Procedures . . . . . . . . . . . 17
Section 4.5. Tax Returns and Reports. . . . . . . . . 17
Section 4.6. Payment of Taxes, Duties, Etc. of
the Trust. . . . . . . . . . . . . . . 18
Section 4.7. Payments under Indenture or pursuant
to Direct Actions. . . . . . . . . . . 18
ARTICLE V
TRUST SECURITIES CERTIFICATES. . . . . . . . . . . . . . . . 18
Section 5.1. Initial Ownership. . . . . . . . . . . . 18
Section 5.2. The Trust Securities Certificates. . . . 18
Section 5.3. Execution and Delivery of Trust
Securities Certificates. . . . . . . . 18
Section 5.4. Registration of Transfer and
Exchange of Preferred Securities
Certificates . . . . . . . . . . . . . 19
Section 5.5. Mutilated, Destroyed, Lost or Stolen
Trust Securities Certificates. . . . . 19
Section 5.6. Persons Deemed Securityholders . . . . . 20
Section 5.7. Access to List of Securityholders'
Names and Addresses. . . . . . . . . . 20
Section 5.8. Maintenance of Office or Agency. . . . . 20
Section 5.9. Appointment of Paying Agent. . . . . . . 20
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Section 5.10. Ownership of Common Securities by
Depositor. . . . . . . . . . . . . . . 20
Section 5.11. Book-Entry Preferred Securities
Certificates; Common Securities
Certificate. . . . . . . . . . . . . . 21
Section 5.12. Notices to Clearing Agency . . . . . . . 21
Section 5.13. Definitive Preferred Securities
Certificates . . . . . . . . . . . . . 21
Section 5.14. Rights of Securityholders. . . . . . . . 22
ARTICLE VI
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING. . . . . . . . . . 23
Section 6.1. Limitations on Voting Rights . . . . . . 23
Section 6.2. Notice of Meetings . . . . . . . . . . . 24
Section 6.3. Meetings of Preferred Securityholders. . 24
Section 6.4. Voting Rights. . . . . . . . . . . . . . 25
Section 6.5. Proxies, etc . . . . . . . . . . . . . . 25
Section 6.6. Securityholder Action by Written
Consent. . . . . . . . . . . . . . . . 25
Section 6.7. Record Date for Voting and Other
Purposes . . . . . . . . . . . . . . . 25
Section 6.8. Acts of Securityholders. . . . . . . . . 25
Section 6.9. Inspection of Records. . . . . . . . . . 26
ARTICLE VII
REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . 26
Section 7.1. Representations and Warranties of the
Property Trustee and the Delaware
Trustee. . . . . . . . . . . . . . . . 26
Section 7.2. Representations and Warranties of
Depositor. . . . . . . . . . . . . . . 27
ARTICLE VIII
THE TRUSTEES . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 8.1. Certain Duties and Responsibilities. . . 28
Section 8.2. Certain Notices. . . . . . . . . . . . . 29
Section 8.3. Certain Rights of Property Trustee . . . 29
Section 8.4. Not Responsible for Recitals or
Issuance of Securities . . . . . . . . 31
Section 8.5. May Hold Securities. . . . . . . . . . . 31
Section 8.6. Compensation; Indemnity; Fees. . . . . . 31
Section 8.7. Corporate Property Trustee Required;
Eligibility of Trustees. . . . . . . . 32
Section 8.8. Conflicting Interests. . . . . . . . . . 32
Section 8.9. Co-Trustees and Separate Trustee . . . . 33
Section 8.10. Resignation and Removal; Appointment
of Successor . . . . . . . . . . . . . 34
Section 8.11. Acceptance of Appointment by Successor . 35
Section 8.12. Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . 35
Section 8.13. Preferential Collection of Claims
Against Depositor or Trust . . . . . . 35
Section 8.14. Reports by Property Trustee. . . . . . . 36
Section 8.15. Reports to the Property Trustee. . . . . 37
Section 8.16. Evidence of Compliance with Conditions
Precedent. . . . . . . . . . . . . . . 37
Section 8.17. Number of Trustees . . . . . . . . . . . 37
Section 8.18. Delegation of Power. . . . . . . . . . . 37
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ARTICLE IX
TERMINATION, LIQUIDATION AND MERGER. . . . . . . . . . . . . 38
Section 9.1. Termination Upon Expiration Date . . . . 38
Section 9.2. Early Termination. . . . . . . . . . . . 38
Section 9.3. Termination. . . . . . . . . . . . . . . 38
Section 9.4. Liquidation. . . . . . . . . . . . . . . 38
Section 9.5. Mergers, Consolidations, Amalgamations
or Replacements of the Trust . . . . . 39
ARTICLE X
MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . . 40
Section 10.1. Limitation of Rights of
Securityholders. . . . . . . . . . . . 40
Section 10.2. Amendment. . . . . . . . . . . . . . . . 40
Section 10.3. Separability . . . . . . . . . . . . . . 41
Section 10.4. Governing Law. . . . . . . . . . . . . . 41
Section 10.5. Payments Due on Non-Business Day . . . . 41
Section 10.6. Successors . . . . . . . . . . . . . . . 42
Section 10.7. Headings . . . . . . . . . . . . . . . . 42
Section 10.8. Reports, Notices and Demands . . . . . . 42
Section 10.9. Agreement Not to Petition. . . . . . . . 42
Section 10.10. Trust Indenture Act; Conflict with
Trust Indenture Act. . . . . . . . . . 43
Section 10.11. Counterparts . . . . . . . . . . . . . . 43
Section 10.12. Acceptance of Terms of Trust Agreement,
Guarantee and Indenture. . . . . . . . 43
EXHIBIT A Certificate of Trust
EXHIBIT B Certificate Depositary Agreement
EXHIBIT C Common Securities Certificates
EXHIBIT D Expense Agreement
EXHIBIT E Preferred Securities Certificate
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AMENDED AND RESTATED TRUST AGREEMENT, dated as of November
20, 1998, among (i) WSFS Financial Corporation, a Delaware
corporation (including any successors or assigns, the
"Depositor"), (ii) Wilmington Trust Company, a Delaware banking
corporation, as property trustee, (in each such capacity, the
"Property Trustee" and, in its separate corporate capacity and
not in its capacity as Property Trustee, the "Bank"), (iii)
Wilmington Trust Company, a Delaware banking corporation, as
Delaware trustee (the "Delaware Trustee"), (iv) ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇, an individual, ▇▇▇▇ ▇. ▇▇▇▇▇▇, an individual, and
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, an individual, each of whose address is c/o
WSFS Financial Corporation, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (each an "Administrative Trustee" and
collectively the "Administrative Trustees") (the Property
Trustee, the Delaware Trustee and the Administrative
Trustees referred to collectively as the "Trustees") and (v) the
several Holders, as hereinafter defined.
WITNESSETH
Whereas, the Depositor, the Property Trustee and the
Delaware Trustee have heretofore duly declared and established a
business trust pursuant to the Delaware Business Trust Act by
the entering into that certain Trust Agreement, dated as of May
28, 1998 (the "Original Trust Agreement"), and by the execution
and filing by the Administrative Trustee and the Delaware
Trustee with the Secretary of State of the State of Delaware of
the Certificate of Trust, filed on May 28, 1998, attached as
Exhibit A; and
Whereas, the Depositor and the Trustees desire to amend and
restate the Original Trust Agreement in its entirety as set
forth herein to provide for, among other things, (i) the
issuance of the Common Securities by the Trust to the Depositor,
(ii) the issuance and sale of the Preferred Securities by the
Trust pursuant to the Underwriting Agreement, (iii) the
acquisition by the Trust from the Depositor of all of the right,
title and interest in the Debentures and (iv) the appointment
of the Administrative Trustees;
Now therefore, in consideration of the agreements and
obligations set forth herein and for other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, each party, for the benefit of the other parties
and for the benefit of the Securityholders, hereby amends and
restates the Original Trust Agreement in its entirety and
agrees as follows:
ARTICLE I
DEFINED TERMS
SECTION 1.1. DEFINITIONS.
For all purposes of this Trust Agreement, except as
otherwise expressly provided or unless the context otherwise
requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well
as the singular;
(b) all other terms used herein that are defined in the
Trust Indenture Act, either directly or by reference therein,
have the meanings assigned to them therein;
(c) unless the context otherwise requires, any reference
to an "Article" or a "Section" refers to an Article or a
Section, as the case may be, of this Trust Agreement; and
(d) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Trust Agreement as a whole
and not to any particular Article, Section or other subdivision.
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"Act" has the meaning specified in Section 6.8.
"Additional Amount" means, with respect to Trust Securities
of a given Liquidation Amount and/or a given period, the amount
of Additional Interest (as defined in the Indenture) paid by the
Depositor on a Like Amount of Debentures for such period.
"Additional Sums" has the meaning specified in Section 10.6
of the Indenture.
"Administrative Trustee" means each of the Persons
identified as an "Administrative Trustee" in the preamble to
this Trustee Agreement solely in such Person's capacity as
Administrative Trustee of the Trust formed and continued
hereunder and not in such Person's individual capacity, or such
Administrative Trustee's successor in interest in such capacity,
or any successor trustee appointed as herein provided.
"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.
"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 Bankruptcy Law,
or appointing a receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of such Person or of
any substantial part of its property or ordering the winding up
or liquidation of its affairs, and the continuance of any such
decree or order unstayed and in effect for a period of 90
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 Bankruptcy
Law, or the consent by it to the filing of any such petition or
to the appointment of a receiver, liquidator, assignee, trustee,
sequestrator (or similar official) of such Person or of any
substantial part of its property, or the making by it of an
assignment for the benefit of creditors, or the admission by it
in writing of its inability to pay its debts generally as
they become due and its willingness to be adjudicated a
bankrupt, or the taking of corporate action by such Person in
furtherance of any such action.
"Bankruptcy Law" means any federal or state bankruptcy,
insolvency, reorganization or other similar law (including,
without limitation, the United States Bankruptcy Code).
"Book-Entry Preferred Securities Certificates" means a
beneficial interest in the Preferred Securities Certificates,
ownership and transfers of which shall be made through book
entries by a Clearing Agency as described in Section 5.11.
"Business Day" means a day other than (a) a Saturday or
Sunday, (b) a day on which banking institutions in The City of
New York or Wilmington, Delaware are authorized or required by
law to remain closed, or (c) a day
2
on which the Property Trustee's Corporate Trust Office or the
Corporate Trust Office of the Debenture Trustee is closed for
business.
"Calculation Agent" means Wilmington Trust Company.
"Certificate Depositary Agreement" means the agreement
among the Trust, the Depositor and The Depository Trust Company,
as the initial Clearing Agency, dated as of the Closing Date,
relating to the Trust Securities Certificates, substantially in
the form attached as Exhibit B, as the same may be amended and
supplemented from time to time.
"Certificate of Trust" means the certificate of trust filed
with the Secretary of State of the State of Delaware with
respect to the Trust, as amended or restated from time to time.
"Clearing Agency" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Exchange Act.
The Depository Trust Company will 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 November 20, 1998.
"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 Guarantee" means the Common Securities
Guarantee Agreement extended by the Depositor contemporaneously
with the execution and delivery of this Trust Agreement, for the
benefit of the holders of Common Securities, as amended from
time to time.
"Common Securities Guarantee Agreement" means the Common
Securities Guarantee Agreement dated November 20, 1998 given by
the Depositor, as Guarantor, evidencing the Common Securities
Guarantee.
"Common Security" means an undivided beneficial interest in
the assets of the Trust, having a Liquidation Amount of $1,000
and having the rights provided therefor in this Trust
Agreement, including the right to receive Distributions and a
Liquidation Distribution as provided herein.
"Common Securities Certificate" means a certificate
evidencing ownership of Common Securities, substantially in the
form attached as Exhibit C.
"Corporate Trust Office" means (i) when used with respect
to the Property Trustee, the principal office of the Property
Trustee located in Wilmington, Delaware, and (ii) when used
with respect to the Debenture Trustee, the principal office of
the Debenture Trustee located in Wilmington, Delaware.
"Debenture Event of Default" means an "Event of Default" as
defined in the Indenture.
"Debenture Redemption Date" means, with respect to any
Debentures to be redeemed under the Indenture, the date fixed
for redemption under the Indenture.
3
"Debenture Trustee" means Wilmington Trust Company, a
Delaware banking corporation, and any successor thereto.
"Debentures" means the aggregate principal amount of the
Depositor's Floating Rate Junior Subordinated Deferrable
Interest Debentures due December 1, 2028 issued pursuant to the
Indenture.
"Definitive Preferred Securities Certificates" means either
or both (as the context requires) of (a) Preferred Securities
Certificates issued as Book-Entry Preferred Securities
Certificate as provided in Section 5.11(a) and (b) Preferred
Securities Certificates issued in certificated, fully registered
form as provided in Section 5.13.
"Delaware Business Trust Act" means Chapter 38 of Title 12
of the Delaware Code, 12 Del. C. Subsection 3801, et seq., as it
may be amended from time to time.
"Delaware Trustee" means the Person identified as the
"Delaware Trustee" in the preamble to this Trust Agreement
solely in its capacity as Delaware Trustee of the Trust formed
and continued hereunder and not in its individual capacity, or
its successor in interest in such capacity, or any successor
trustee appointed as herein provided.
"Depositor" has the meaning specified in the preamble to
this Trust Agreement.
"Determination Date" for a Distribution Period is two
London Banking Days preceding the first day of such Distribution
Period.
"Distribution Date" has the meaning specified in Section
4.1(a).
"Distribution Period" with respect to a Trust Preferred
Security is each successive period from and including a
Distribution Date (or November 20, 1998 in the case of the
initial Distribution Period) to but excluding the next
Distribution Date or the Stated Maturity, as the case may be;
provided however, if such Distribution Date would not be a
Business Day, then such Distribution Date and the first day of
the next succeeding Distribution Period will be the next
succeeding Business Day, except that if such Business Day is in
the next succeeding calendar year, such Distribution Date and
the first day of the next succeeding Distribution Period
will be the immediately preceding Business Day.
"Distribution Rate" has the meaning specified in Section
4.1.
"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;
or
(b) default by the Property Trustee in the payment of
any Distribution when it becomes due and payable, and
continuation of such default for a period of 30 days; or
(c) default by the Property Trustee in the payment of
any Redemption Price of any Trust Security when it becomes due
and payable; or
4
(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 or breach of which is dealt with in
clause (b) or (c) above) and continuation of such default or
breach for a period of 60 days after there has been given, by
registered or certified mail, to the defaulting Trustee or
Trustees by the Holders of at least 25% in aggregate liquidation
preference of the Outstanding Preferred Securities a written
notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder; or
(e) the occurrence of a Bankruptcy Event with respect
to the Property Trustee and the failure by the Depositor to
appoint a successor Property Trustee within 60 days thereof.
"Exchange Act" means the Securities Exchange Act of 1934,
as amended.
"Expense Agreement" means the Agreement as to Expenses and
Liabilities between the Depositor and the Trust, substantially
in the form attached as Exhibit D, as amended from time to
time.
"Expiration Date" has the meaning specified in Section 9.1.
"Indenture" means the Junior Subordinated Indenture, dated
as of November 20, 1998, between the Depositor and the Debenture
Trustee, as trustee, as amended or supplemented from time to
time.
"LIBOR" means, with respect to a Determination Date, the
London interbank offered rate (expressed as a percentage per
annum) a three-month Eurodollar deposits determined in following
order of priority:
(i) the rate (expressed as a percentage per annum)
for Eurodollar deposits having a three-month
maturity that appears on Telerate Page 3750 as of
11:00 am (London time) on the related
Determination Date;
(ii) if such rate does not appear on Telerate Page
3750 as of 11:00 a.m. (London time) on the
related Determination Date, 3-month LIBOR will be
the arithmetic mean of the rates (expressed as
percentages per annum) for Eurodollar deposits
having a three-month maturity that appear on
Reuters Monitor Money Rates Page LIBO ("Reuters
Page LIBO") as of 11:00 a.m. (London time) on
such Determination Date;
(iii)if such rate does not appear on Reuters Page LIBO
as of 11:00 a.m. (London time) on therelated
Determination Date, the Calculation Agent will
request the principal London offices of four
leading banks in the London interbank market to
provide such banks' offered quotations (expressed
as percentages per annum) to prime banks in the
London interbank market for Eurodollar deposits
having a three-month maturity as of 11:00 a.m.
(London time) on such Determination Date. If at
least two quotations are provided, 3-month LIBOR
will be the arithmetic mean of such quotations;
(iv) if fewer than two such quotations are provided as
requested in clause (iii) above, the Calculation
Agent will request four major New York City banks
to provide such banks' offered quotations
(expressed as percentages per annum) to leading
European banks for three-month loans in
Eurodollars as of 11:00 a.m. (London time) on
such Determination Date. If at least two such
quotations are provided, 3-month LIBOR will be
the arithmetic mean of such quotations; and
5
(v) if fewer than two such quotations are provided as
requested in clause (iv) above, 3-month LIBOR
will be 3-month LIBOR determined with respect to
the Interest Period immediately preceding such
current Interest Period.
If the rate for Eurodollar deposits having a three-month
maturity that initially appears on Telerate Page 3750 or Reuters
Page LIBO, as the case may be, as of 11:00 a.m. (London time) on
the related Determination Date is superseded on Telerate Page
3750 or Reuters Page LIBO, as the case may be, by a corrected
rate before 12:00 noon (London time) on such Determination
Date, the corrected rate as so substituted on the applicable
page will be the applicable 3-month LIBOR for such Determination
Date.
All percentages resulting from any calculations on the
Trust Securities will be rounded, if necessary, to the nearest
one hundred-thousandth of a percentage point, with five
one-millionths of a percentage point rounded upward (e.g.,
9.876545% (or .09876545) being rounded to 9.87655% (or
.0987655)), and all dollar amounts used in or resulting from
such calculation will be rounded to the nearest cent (with
one-half cent being rounded upward).
The Calculation Agent will, upon the request of the holder
of any Preferred Securities, provide the Distribution Rate then
in effect. All calculations made by the Calculation Agent in
the absence of manifest error shall be conclusive for all
purposes and binding on the Depositor and the holders of the
Preferred Securities.
"Lien" means any lien, pledge, charge, encumbrance,
mortgage, deed of trust, adverse ownership interest, adverse
claim, 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 the portion of the principal amount of Debentures to be
contemporaneously redeemed in accordance with the Indenture,
allocated to the Common Securities and to the Preferred
Securities pro rata based upon the relative Liquidation Amounts
of such classes the proceeds of which will be used to pay the
Redemption Price of such Trust Securities, and (b) with respect
to a distribution of Debentures to Holders of Trust Securities
in connection with a dissolution or liquidation of the Trust,
Debentures having a principal amount equal to the Liquidation
Amount of the Trust Securities of the Holder to whom such
Debentures are distributed.
"Liquidation Amount" means the stated amount of $1,000 per
Trust Security.
"Liquidation Date" means the date on which Debentures are
to be distributed to Holders of Trust Securities in connection
with a termination and liquidation of the Trust pursuant to
Section 9.4(a).
"Liquidation Distribution" has the meaning specified in
Section 9.4(d).
"London Banking Day" means a day on which dealings in
deposits in U.S. dollars are transacted in the London interbank
market.
"1940 Act" means the Investment Company Act of 1940, as
amended.
"Officers' Certificate" means a certificate signed by the
Chairman and Chief Executive Officer, President or a Vice
President, and by the Treasurer, an Associate Treasurer, an
Assistant Treasurer, the Controller, the Secretary or an
Assistant Secretary, of the Depositor, and delivered to the
appropriate Trustee. One of the officers signing an Officers'
Certificate given pursuant to Section 8.16 shall be the
principal executive, financial or accounting officer of the
Depositor. Any Officers' Certificate delivered with respect to
compliance with a condition or covenant provided for in this
Trust Agreement shall include:
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(a) a statement that each officer signing the
Officers' Certificate has read the covenant or condition and the
definitions relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in
rendering the Officers' Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion, is
necessary to enable such officer to express an informed opinion
as to whether or not such covenant or condition has been
complied with; and
(d) a statement as to whether, in the opinion of each
such officer, such condition or covenant has been complied with.
"Original Trust Agreement" has the meaning specified in the
recitals to this Trust Agreement.
"Outstanding", when used 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 Trust 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 Preferred Securities have
been executed and delivered pursuant to Sections 5.4, 5.5,
5.11 and 5.13;
provided, however, that in determining whether the Holders of
the requisite Liquidation Amount of the Outstanding Preferred
Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Preferred
Securities owned by the Depositor, any Trustee or any Affiliate
of the Depositor or any Trustee shall be disregarded and deemed
not to be Outstanding, except that (a) in determining whether
any Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver,
only Preferred Securities that such Trustee knows to be so owned
shall be so disregarded and (b) the foregoing shall not apply at
any time when all of the outstanding Preferred Securities are
owned by the Depositor, one or more of the Trustees and/or any
such Affiliate. Preferred Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Administrative
Trustees the pledgee's right so to act with respect to such
Preferred Securities and that the pledgee is not the Depositor
or any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner of a
Book-Entry Preferred Securities Certificate 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 5.9 and shall initially be the
Bank.
"Payment Account" means a segregated non-interest-bearing
corporate trust account maintained by the Property Trustee with
the Bank in its trust department for the benefit of the
Securityholders in which all amounts paid
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in respect of the Debentures will be held and from which the
Property Trustee, through the Paying Agent, shall make payments
to the Securityholders in accordance with Sections 4.1 and 4.2.
"Person" means any individual, corporation, partnership,
joint venture, trust, limited liability company or corporation,
unincorporated organization or government or any agency or
political subdivision thereof.
"Preferred Security" means an undivided beneficial interest
in the assets of the Trust, having a Liquidation Amount of
$1,000 and having the rights provided therefor in this Trust
Agreement, including the right to receive Distributions and a
Liquidation Distribution as provided herein.
"Preferred Securities Certificate" means a certificate
evidencing ownership of Preferred Securities, substantially in
the form attached as Exhibit E.
"Preferred Securities Guarantee" means the Preferred
Securities Guarantee Agreement extended by the Depositor
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.
"Preferred Securities Guarantee Agreement" means the Trust
Preferred Securities Guarantee Agreement dated November 20, 1998
between the Depositor, as Guarantor, and Wilmington Trust
Company, as trustee, evidencing the Preferred Securities
Guarantee.
"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 Trust
heretofore formed and continued hereunder and not in its
individual capacity, or its successor in interest in such
capacity, or any successor property trustee appointed as herein
provided.
"Redemption Date" means, with respect to any Trust Security
to be redeemed, the date fixed for such redemption by or
pursuant to this Trust Agreement; provided that each Debenture
Redemption Date and the stated maturity of the Debentures shall
be a Redemption Date for a Like Amount of Trust Securities.
"Redemption Price" means, with respect to any Trust
Security, the Liquidation Amount of such Trust Security, plus
accumulated and unpaid Distributions to the Redemption Date,
plus the related amount of the premium, if any, paid by the
Depositor upon the concurrent redemption of a Like Amount of
Debentures, allocated on a pro rata basis (based on Liquidation
Amounts) among the Trust Securities.
"Relevant Trustee" shall have the meaning specified in
Section 8.10.
"Responsible Officer" when used with respect to the
Property Trustee means any officer assigned to the Corporate
Trust Office, including any managing director, principal, vice
president, assistant vice president, assistant treasurer,
assistant secretary or any other officer of the Property Trustee
customarily performing functions similar to those performed by
any of the above designated officers and having direct
responsibility for the administration of this Trust Agreement,
and also, with respect to a particular matter, any other officer
to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject.
"Securities Register" and "Securities Registrar" have the
respective meanings specified in Section 5.4.
"Securityholder" or "Holder" means a Person in whose name a
Trust Security or Trust Securities is registered in the
Securities Register; any such Person shall be deemed to be a
beneficial owner within the meaning of the Delaware Business
Trust Act.
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"Telerate Page 3750" means the display designated as "Page
3750" on the Dow ▇▇▇▇▇ Telerate Service (or such other page as
may replace Page 3750 on that service or such other service or
services as may be nominated by the British Bankers' Association
as the information vendor for the purpose of displaying London
interbank offered rates for U.S. dollars deposits).
"Trust" means the Delaware business trust created and
continued hereby and identified on the cover page to this Trust
Agreement.
"Trust Agreement" means this Amended and Restated Trust
Agreement, as the same may be modified, amended or supplemented
in accordance with the applicable provisions hereof, including
(i) all exhibits hereto and (ii) for all purposes of this Trust
Agreement and any such modification, amendment or supplement,
the provisions of the Trust Indenture Act that are deemed to be
a part of and govern this Trust Agreement and any such
modification, amendment or supplement, respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939
as in force at the date as of which this instrument was
executed; provided, however, that in the event the Trust
Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"Trust Property" means (a) the Debentures, (b) the rights
of the Property Trustee under the Common Securities Guarantee
and the Preferred Securities Guarantee, (c) any cash on deposit
in, or owing to, the Payment Account and (d) all proceeds and
rights in respect of the foregoing and any other property and
assets for the time being held or deemed to be held by the
Property Trustee pursuant to the trusts of this Trust Agreement.
"Trust Security" means any one of the Common Securities or
the Preferred Securities.
"Trust Securities Certificate" means any one of the Common
Securities Certificates or the Preferred Securities
Certificates.
"Trustees" means, collectively, the Property Trustee, the
Delaware Trustee and the Administrative Trustees.
"Underwriting Agreement" means the Underwriting Agreement,
dated November 17, 1998, among the Trust, the Depositor,
Wilmington Savings Fund Society, Federal Savings Bank,
and the underwriter named therein.
ARTICLE II
ESTABLISHMENT OF THE TRUST
SECTION 2.1. NAME.
The Trust continued hereby shall be known as "WSFS Capital
Trust I" as such name may be modified from time to time by the
Administrative Trustees following written notice to the
Holders of Trust Securities and the other Trustees, in which
name the Trustees may engage in the transactions contemplated
hereby, make and execute contracts and other instruments on
behalf of the Trust and ▇▇▇ and be sued.
SECTION 2.2. OFFICE OF THE DELAWARE TRUSTEE; PRINCIPAL PLACE
OF BUSINESS.
The address of the Delaware Trustee in the State of
Delaware is c/o Wilmington Trust Company, ▇▇▇▇▇▇ Square North,
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Corporate Trust Administration, or such other address
in the State of Delaware as the Delaware Trustee may designate
by written notice to the
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Securityholders and the Depositor. The principal executive
office of the Trust is c/o WSFS Financial Corporation, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
SECTION 2.3. INITIAL CONTRIBUTION OF TRUST PROPERTY;
ORGANIZATIONAL EXPENSES.
The Property Trustee acknowledges receipt in trust from the
Depositor in connection with the Original Trust Agreement of the
sum of $10, which constituted the initial Trust Property. The
Depositor shall pay organizational expenses of the Trust as they
arise or shall, upon request of any Trustee, promptly reimburse
such Trustee for any such expenses paid by such Trustee
pursuant to the Expense Agreement. 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 November 17, 1998 the Depositor, on behalf of the Trust
and pursuant to the Original Trust Agreement, executed and
delivered the Underwriting Agreement. Contemporaneously with
the execution and delivery of this Trust Agreement, an
Administrative Trustee, on behalf of the Trust, shall execute in
accordance with Section 5.2 and deliver to the Underwriter named
in the Underwriting Agreement Preferred Securities Certificates,
registered in the name of the nominee of the initial Clearing
Agency, in an aggregate amount of 50,000 Preferred Securities
having an aggregate Liquidation Amount of $50,000,000, against
receipt of such aggregate purchase price of such Preferred
Securities of $50,000,000, which amount the Administrative
Trustee shall promptly deliver to the Property Trustee.
SECTION 2.5. ISSUANCE OF THE COMMON SECURITIES; SUBSCRIPTION
AND PURCHASE OF DEBENTURES.
Contemporaneously with the execution and delivery of this
Trust Agreement, an Administrative Trustee, on behalf of the
Trust, shall execute in accordance with Section 5.2 and deliver
to the Depositor Common Securities Certificates, registered in
the name of the Depositor, in an aggregate amount of 1,547
Common Securities having an aggregate Liquidation Amount of
$1,547,000 against payment by the Depositor of such amount,
which amount such Administrative Trustee shall promptly deliver
to the Property Trustee. Contemporaneously therewith, an
Administrative Trustee, on behalf of the Trust, shall subscribe
to and purchase from the Depositor Debentures, registered in the
name of the Trust and having an aggregate principal
amount equal to $51,547,000, and, in satisfaction of the
purchase price for such Debentures, the Property Trustee, on
behalf of the Trust, shall deliver to the Depositor the sum of
$51,547,000 (being the sum of the amounts delivered to the
Property Trustee pursuant to (i) the second sentence of Section
2.4 and (ii) the first sentence of this Section 2.5).
SECTION 2.6. DECLARATION OF TRUST.
The exclusive purposes and functions of the Trust are (a)
to issue and sell Trust Securities and use the proceeds from
such sale to acquire the Debentures, and (b) to engage in those
activities necessary, advisable or incidental thereto (such as
registering the transfer of the Trust Securities). The
Depositor hereby appoints the Trustees as trustees of the Trust,
to have all the rights, powers and duties to the extent set
forth herein, and the Trustees hereby accept such appointment.
The Property Trustee hereby declares that it will hold the Trust
Property in trust upon and subject to the conditions set forth
herein for the benefit of the Trust and the Securityholders. The
Administrative Trustees shall have all rights, powers and duties
set forth herein and in accordance with applicable law with
respect to accomplishing the purposes of the Trust. The Delaware
Trustee shall not be entitled to exercise any powers, nor shall
the Delaware Trustee have any of the duties and
responsibilities, of the Property Trustee or the Administrative
Trustees set forth herein. The Delaware Trustee shall be one of
the Trustees of the Trust for the sole and limited purpose of
fulfilling the requirements of Section 3807 of the Delaware
Business Trust Act.
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SECTION 2.7. AUTHORIZATION TO ENTER INTO CERTAIN TRANSACTIONS.
(a) The Trustees shall conduct the affairs of the Trust in
accordance with the terms of this Trust Agreement. Subject to
the limitations set forth in paragraph (b) of this Section and
Section 2.6, and in accordance with the following provisions (i)
and (ii), the Trustees shall have the authority to enter into
all transactions and agreements determined by the Trustees to be
appropriate in exercising the authority, express or implied,
otherwise granted to the Trustees under this Trust Agreement,
and to perform all acts in furtherance thereof, including
without limitation, the following:
(i) As among the Trustees, each Administrative
Trustee shall have the power and authority to act on
behalf of the Trust with respect to the following matters:
(A) the issuance and sale of the Trust
Securities;
(B) to cause the Trust to enter into, and to
execute, deliver and perform on behalf of the Trust,
the Expense Agreement and the Certificate Depositary
Agreement and such other agreements as may be
necessary or desirable in connection with the
purposes and function of the Trust;
(C) assisting in the registration of the
Preferred Securities under the Securities Act of
1933, as amended, and under state securities or blue
sky laws, and the qualification of this Trust
Agreement as a trust indenture under the Trust
Indenture Act;
(D) assisting in the listing of the Preferred
Securities upon such securities exchange or exchanges
as shall be determined by the Depositor and the
registration of the Preferred Securities under the
Exchange Act and the preparation and filing of all
periodic and other reports and other documents
pursuant to the foregoing;
(E) the sending of notices (other than notices
of default) and other information regarding the Trust
Securities and the Debentures to the Securityholders
in accordance with this Trust Agreement;
(F) the appointment of a Paying Agent,
authenticating agent and Securities Registrar in
accordance with this Trust Agreement;
(G) registering transfer of the Trust Securities
in accordance with this Trust Agreement;
(H) to the extent provided in this Trust
Agreement, the winding up of the affairs of and
liquidation of the Trust and the preparation,
execution and filing of the certificate of
cancellation with the Secretary of State of the State
of Delaware;
(I) unless otherwise determined by the
Depositor, the Property Trustee or the Administrative
Trustees, or as otherwise required by the Delaware
Business Trust Act or the Trust Indenture Act, to
execute on behalf of the Trust (either acting alone
or together with any or all of the Administrative
Trustees) any documents that the Administrative
Trustees have the power to execute pursuant to this
Trust Agreement; and
11
(J) the taking of any action incidental to the
foregoing as the Trustees may from time to time
determine is necessary or advisable to give effect to
the terms of this Trust Agreement for the benefit of
the Securityholders (without consideration of the
effect of any such action on any particular
Securityholder).
(ii) As among the Trustees, the Property Trustee shall
have the power, duty and authority to act on behalf of the
Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Debentures;
(C) the collection of interest, principal and
any other payments made in respect of the Debentures
in the Payment Account;
(D) the distribution through the Paying Agent of
amounts owed to the Securityholders in respect of the
Trust Securities;
(E) the exercise of all of the rights, powers
and privileges of a holder of the Debentures;
(F) the sending of notices of default and other
information regarding the Trust Securities and the
Debentures to the Securityholders in accordance with
this Trust Agreement;
(G) the distribution of the Trust Property in
accordance with the terms of this Trust Agreement;
(H) to the extent provided in this Trust
Agreement, the winding up of the affairs of and
liquidation of the Trust and the preparation,
execution and filing of 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), (d) or (e) of the definition of
such term if such Event of Default is by or with
respect to the Property Trustee) the taking of any
action incidental to the foregoing as the Property
Trustee may from time to time determine is necessary
or advisable to give effect to the terms of this Trust
Agreement and protect and conserve the Trust Property
for the benefit of the Securityholders (without
consideration of the effect of any such action on any
particular Securityholder) and, within five Business
Days after the occurrence of any Event of Default
actually known to the Property Trustee, to give notice
thereof to the Securityholders; and
(J) except as otherwise provided in this Section
2.7(a)(ii), the Property Trustee shall have none of
the duties, liabilities, powers or the authority of
the Administrative Trustees set forth in Section
2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the
Trust (or the Trustees acting on behalf of the Trust) shall not
undertake any business, activities or transaction except as
expressly provided herein or contemplated hereby. In particular,
the Trustees shall not (i) acquire any investments or engage in
any activities not authorized by this Trust Agreement, (ii)
sell, assign, transfer, exchange, mortgage, pledge, set-off or
otherwise dispose of any of
12
the Trust Property or interests therein, including to
Securityholders, except as expressly provided herein, (iii) take
any action that would cause the Trust to fail or cease to
qualify as a "grantor trust" for United States federal income
tax purposes, (iv) incur any indebtedness for borrowed money or
issue any other debt or (v) take or consent to any action that
would result in the placement of a Lien on any of the Trust
Property. The Administrative Trustees shall defend all claims
and demands of all Persons at any time claiming any Lien on any
of the Trust Property adverse to the interest of the Trust or
the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred
Securities, the Depositor shall have the right and
responsibility to assist the Trust with respect to, or effect on
behalf of the Trust, the following (and any actions taken by the
Depositor in furtherance of the following prior to the date of
this Trust Agreement are hereby ratified and confirmed in all
respects):
(i) the preparation and filing by the Trust with the
Commission and the execution on behalf of the Trust of a
registration statement on the appropriate form in relation
to the Preferred Securities, including any amendments
thereto;
(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, the Preferred Securities
Guarantee and the determination of any and all such acts,
other than actions which must be taken by or on behalf of
the Trust, and the advice to the Trustees of actions they
must take on behalf of the Trust, and the preparation for
execution and filing of any documents to be executed and
filed by the Trust or on behalf of the Trust, as the
Depositor deems necessary or advisable in order to comply
with the applicable laws of any such States;
(iii) the preparation for filing by the Trust and
execution on behalf of the Trust of an application to the
New York Stock Exchange or any other national stock
exchange or the Nasdaq National Market for listing upon
notice of issuance of any Preferred Securities;
(iv) the preparation for filing by the Trust with the
Commission and the execution on behalf of the 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, including any
amendments thereto;
(v) the negotiation of the terms of, and the
execution and delivery of, the Underwriting Agreement
providing for the sale of the Preferred Securities; 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
Administrative Trustees are authorized and directed to conduct
the affairs of the Trust and to operate the Trust so that the
Trust will not be deemed to be an "investment company" required
to be registered under the 1940 Act, or fail to be classified as
a grantor trust for United States federal income tax purposes
and so that the Debentures will be treated as indebtedness of
the Depositor for United States federal income tax purposes. In
this connection, the Depositor and the Administrative Trustees
are authorized to take any action, not inconsistent with
applicable law, the Certificate of Trust or this Trust
Agreement, that each of the Depositor and any Administrative
Trustee determines in its 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 Preferred Securities.
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SECTION 2.8. ASSETS OF TRUST.
The assets of the Trust shall consist of the Trust
Property.
SECTION 2.9. TITLE TO TRUST PROPERTY.
Legal title to all Trust Property shall be vested at all
times in the Property Trustee (in its capacity as such) and
shall be held and administered by the Property Trustee for the
benefit of the Trust and the Securityholders in accordance with
this Trust Agreement.
ARTICLE III
PAYMENT ACCOUNT
SECTION 3.1. PAYMENT ACCOUNT.
(a) On or prior to the Closing Date, the Property Trustee
shall establish the Payment Account. The Property Trustee and
any agent of the Property Trustee shall have exclusive control
and sole right of withdrawal with respect to the Payment Account
for the purpose of making deposits 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
Securityholders and for distribution as herein provided,
including (and subject to) any priority of payments provided for
herein.
(b) The Property Trustee shall deposit in the Payment
Account, promptly upon receipt, all payments of principal of or
interest on, and any other payments or proceeds with
respect to, the Debentures. Amounts held in the Payment Account
shall not be invested by the Property Trustee pending
distribution thereof.
ARTICLE IV
DISTRIBUTIONS; REDEMPTION
SECTION 4.1. DISTRIBUTIONS.
(a) The Trust Securities represent undivided beneficial
interests in the Trust Property, and Distributions (including of
Additional Amounts) will be made on the Trust Securities at the
rate and on the dates that payments of interest (including of
Additional Interest, as defined in the Indenture) are made on
the Debentures. Accordingly:
(i) Distributions on the Trust Securities shall be
cumulative, and will accumulate whether or not there are
funds of the Trust available for the payment of
Distributions. Distributions shall accrue from November
20, 1998, and, except in the event (and to the extent)
that the Depositor exercises its right to defer the payment
of interest on the Debentures pursuant to the Indenture,
shall be payable quarterly in arrears on March 1, June 1,
September 1 and December 1 of each year, commencing on
March 1, 1999. If any date on which a Distribution is
otherwise payable on the Trust Securities is not a Business
Day, then the payment of such Distribution shall be made on
the next succeeding day that is a Business Day (and without
any interest or other payment in respect of any such delay)
except that, if such Business Day is in the next succeeding
calendar year, payment of such Distribution shall be made
on the immediately preceding Business Day, in each case
with the
14
same force and effect as if made on such date (each date on
which distributions are payable in accordance with this
Section 4.1(a), a "Distribution Date").
(ii) Assuming payments of interest on the Debentures
are made when due (and before giving effect to Additional
Amounts, if applicable), Distributions on the Trust
Securities shall be payable at a rate per annum reset
quarterly equal to 3-month LIBOR plus 250 basis points of
the Liquidation Amount of the Trust Securities. The
Distribution Rate on the Trust Preferred Securities for any
Distribution Period will be effective as of the first day
of such Distribution Period. The Distribution Rate on the
Trust Preferred Securities for each Distribution Period
will be determined on the Determination Date for such
Distribution Period and be a per annum rate equal to
3-month U.S. dollar LIBOR plus 250 basis points. The
amount of Distributions payable for any full period shall
be computed on the basis of actual days elapsed and a
360-day year of twelve 30-day months. The amount of
Distributions for any partial period shall be computed on
the basis of the number of days elapsed in a 360-day year
of twelve 30-day months. The amount of Distributions
payable for any period shall include the Additional
Amounts, if any.
(iii) 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 Trust has funds then on hand and available
in the Payment Account for the payment of such
Distributions.
(b) Distributions on the Trust Securities with respect to
a Distribution Date shall be payable to the Holders thereof as
they appear on the Securities Register for the Trust Securities
on the relevant record date, which shall be one Business Day
prior to such Distribution Date; provided, however, that in the
event that the Preferred Securities do not remain in
book-entry-only form, the relevant record date shall be the 15th
day of the month prior to the relevant Distribution Date.
(c) The Calculation Agent shall, as soon as practicable
after 11:00 a.m., London, England time, on each Determination
Date, determine the Distribution Rate and inform the Debenture
Trustee, the Property Trustee and the Paying Agent. Unless
otherwise provided by the Property Trustee, the Paying Agent
will calculate the amount of distributions payable in
respect of the following Distribution Period (the "Distribution
Amount"). The Distribution Amount shall be calculated by
applying the Distribution Rate to the liquidation amount of each
Trust Security outstanding at the commencement of the
Distribution Period, multiplying each such liquidation amount by
the actual number of days in the Distribution Period concerned
divided by 360 and rounding the resulting figure to the nearest
cent (with one-half cent or more being rounded upwards). The
determination of the Distribution Rate by the Calculation Agent
and the Distribution Amount by the Paying Agent will (in the
absence of willful default, bad faith or manifest error) be
final, conclusive and binding on all concerned.
SECTION 4.2. REDEMPTION.
(a) On each Debenture Redemption Date and on the stated
maturity of the Debentures, the Trust will be required to
redeem, subject to Section 4.3, 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;
(iii) the CUSIP number;
15
(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; and
(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 accrue on and after said date.
(c) The Trust Securities redeemed on each Redemption Date
shall be redeemed at the Redemption Price with the proceeds from
the contemporaneous redemption of Debentures. Redemptions of the
Trust Securities shall be made and the Redemption Price shall be
payable on each Redemption Date only to the extent that the
Trust has funds then on hand and available in the Payment
Account for the payment of such Redemption Price.
(d) If the Property Trustee gives a notice of redemption
in respect of any Preferred Securities, then, by 12:00 noon, New
York City time, on the Redemption Date, subject to Section
4.2(c), with respect to Preferred Securities held in book-entry
form, the Property Trustee will irrevocably deposit with the
Clearing Agency for the Preferred Securities funds sufficient to
pay the applicable Redemption Price and will give such Clearing
Agency irrevocable instructions and authority to pay the
Redemption Price to the holders thereof. With respect to
Preferred Securities held in certificated form, the Property
Trustee, subject to Section 4.2(c), will irrevocably deposit
with the Paying Agent 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 thereof upon surrender of their Preferred Securities
Certificates. Notwithstanding the foregoing, Distributions
payable on or prior to the Redemption Date for any Trust
Securities called for redemption shall be payable to the Holders
of such Trust Securities as they appear on the Register for the
Trust Securities on the relevant record dates for the related
Distribution Dates. If notice of redemption shall have been
given and funds deposited as required, then upon the date
of such deposit, all rights of Securityholders holding Trust
Securities so called for redemption will cease, except the right
of such Securityholders to receive the Redemption Price and any
Distribution payable on or prior to the Redemption Date, but
without interest, and such Securities will cease to be
outstanding. In the event that any date on which any Redemption
Price is payable is not a Business Day, then payment of the
Redemption Price payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest
or other payment in respect of any such delay), except that, if
such Business Day falls in the next calendar year, such
payment will be made on the immediately preceding Business Day,
in each case, with the same force and effect as if made on such
date. In the event that payment of the Redemption Price in
respect of any Trust Securities called for redemption is
improperly withheld or refused and not paid either by the Trust
or by the Depositor pursuant to the Common Securities Guarantee
and the Preferred Securities Guarantee, Distributions on such
Trust Securities will continue to accrue, at the then applicable
rate, from the Redemption Date originally established by the
Trust for such Trust Securities to the date such Redemption
Price is actually paid, in which case the actual payment date
will be the date fixed for redemption for purposes of
calculating the Redemption Price.
(e) Payment of the Redemption Price on the Trust
Securities shall be made to the recordholders thereof as they
appear on the Securities Register for the Trust Securities on
the relevant record date, which shall be one Business Day prior
to the relevant Redemption Date; provided, however, that in the
event that the Preferred Securities do not remain in
book-entry-only form, the relevant record date shall be the 15th
day of the month prior to the relevant Redemption Date.
(f) Subject to Section 4.3(a), if less than all the
Outstanding Trust Securities are to be redeemed on a Redemption
Date, then the aggregate Liquidation Amount of Trust Securities
to be redeemed shall be allocated on a pro rata basis (based on
Liquidation Amounts) among the Common Securities and the
Preferred Securities. The particular Preferred Securities to be
redeemed shall be selected on a pro rata basis (based upon
Liquidation Amounts) not more than 60 days prior to the
Redemption Date by the Property Trustee from the Outstanding
Preferred Securities not previously called for redemption, by
such method (including, without limitation, by lot) as the
Property Trustee shall deem fair and appropriate and which may
provide for the selection for redemption of portions (equal to
$1,000 or an integral multiple of $1,000 in excess thereof) of
the Liquidation Amount of Preferred Securities of a denomination
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larger than $1,000. The Property Trustee shall promptly notify
the Security 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 that has been or is to be redeemed.
SECTION 4.3. SUBORDINATION OF COMMON SECURITIES.
(a) Payment of Distributions (including Additional
Amounts, if applicable) on, and the Redemption Price of, the
Trust Securities, as applicable, shall be made, subject to
Section 4.2(f), pro rata among the Common Securities and the
Preferred Securities based on the Liquidation Amount of the
Trust Securities; provided, however, that if on any Distribution
Date or Redemption Date any Event of Default resulting from a
Debenture Event of Default shall have occurred and be
continuing, no payment of any Distribution (including Additional
Amounts, if applicable) on, or Redemption Price of, any Common
Security, and no other payment on account of the redemption,
liquidation or other acquisition 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, shall
have been made or provided for, and all funds immediately
available to the Property Trustee shall first be applied
to the payment in full in cash of all Distributions (including
Additional Amounts, if applicable) on, or the Redemption Price
of, Preferred Securities then due and payable.
(b) In the case of the occurrence of any Event of Default
resulting from any Debenture Event of Default, the Holder of
Common Securities will be deemed to have waived any right to act
with respect to any such Event of Default under this Trust
Agreement until the effect of all such Events of Default with
respect to the Preferred Securities have been cured,
waived or otherwise eliminated. Until any such Event of Default
under this Trust Agreement with respect to the Preferred
Securities has been so cured, waived or otherwise eliminated,
the Property Trustee shall act solely on behalf of the Holders
of the Preferred Securities and not 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 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 shall credit the relevant
Persons' accounts at such Clearing Agency on the applicable
Distribution Dates. Payments in respect of the Common Securities
shall be made in such manner as shall be mutually agreed between
the Property Trustee and the Common Securityholder.
SECTION 4.5. TAX RETURNS AND REPORTS.
The Administrative Trustees shall prepare (or cause to be
prepared), at the Depositor's expense, and file all United
States federal, state and local tax and information returns and
reports required to be filed by or in respect of the Trust. In
this regard, the Administrative Trustees shall (a) prepare and
file (or cause to be prepared and filed) the appropriate
Internal Revenue Service Form required to be filed in respect of
the Trust in each taxable year of the Trust and (b) prepare
and furnish (or cause to be prepared and furnished) to each
Securityholder the appropriate Internal Revenue Service form
required to be provided on such form, together with an annual
financial statement of the Trust. The Administrative Trustees
shall provide the Depositor and the Property Trustee with a copy
of all such returns and reports promptly after such filing or
furnishing. The Trustees shall comply with United States federal
withholding and
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backup withholding tax laws and information reporting
requirements with respect to any payments to Securityholders
under the Trust Securities.
SECTION 4.6. PAYMENT OF TAXES, DUTIES, ETC. OF THE TRUST.
Upon receipt under the Debentures of Additional Sums, the
Property Trustee shall, at the written request of an
Administrative Trustee or the Depositor promptly pay any taxes,
duties or governmental charges of whatsoever nature (other than
withholding taxes) imposed on the Trust by the United States or
any other taxing authority.
SECTION 4.7. PAYMENTS UNDER INDENTURE OR PURSUANT TO DIRECT
ACTIONS.
Notwithstanding any payments made to any Holder of
Preferred Securities (and any Owner with respect thereto),
pursuant to Section 5.8 of the Indenture or Section 5.14 of this
Trust Agreement, the Depositor shall remain obligated to pay
principal of or interest on Debentures and the Depositor shall
be subrogated to the rights of the Holder (and Owner) of such
Preferred Securities with respect to payments on the Preferred
Securities to the extent of any payments made by the Depositor
to such Holder (and Owner) pursuant to either of such Sections.
ARTICLE V
TRUST SECURITIES CERTIFICATES
SECTION 5.1. INITIAL OWNERSHIP.
Upon the formation of the Trust and the contribution by the
Depositor pursuant to Section 2.3 and until the issuance of the
Trust Securities, and at any time during which no Trust
Securities are outstanding, the Depositor shall be the sole
beneficial owner of the Trust.
SECTION 5.2. THE TRUST SECURITIES CERTIFICATES.
The Preferred Securities Certificates shall be issued in
minimum denominations of $1,000 Liquidation Amount and integral
multiples of $1,000 in excess thereof, and the Common
Securities Certificates shall be issued in denominations of
$1,000 Liquidation Amount and integral multiples thereof. The
Trust Securities Certificates shall be executed on behalf of the
Trust by manual signature of at least one Administrative
Trustee. Trust Securities Certificates bearing the manual
signatures of individuals who were, at the time when such
signatures shall have been affixed, authorized to sign on behalf
of the Trust, shall be validly issued and entitled to
the benefits of this Trust Agreement, notwithstanding that such
individuals or any of them shall have ceased to be so authorized
prior to the delivery of such Trust Securities Certificates or
did not hold such offices at the date of delivery of such Trust
Securities Certificates. A transferee of a Trust Securities
Certificate shall become a Securityholder, and shall be entitled
to the rights and subject to the obligations of a Securityholder
hereunder, upon due registration of such Trust Securities
Certificate in such transferee's name pursuant to Sections 5.4,
5.11 and 5.13.
SECTION 5.3. EXECUTION AND DELIVERY OF TRUST SECURITIES
CERTIFICATES.
At the Closing Date, the Administrative Trustees shall
cause Trust Securities Certificates, in an aggregate Liquidation
Amount as provided in Sections 2.4 and 2.5, to be executed on
behalf of the Trust and delivered to or upon the written order
of the Depositor, signed by its chairman of the board, its
president, any executive vice president or any vice president,
treasurer or assistant treasurer or controller without further
corporate action by the Depositor, in authorized denominations.
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SECTION 5.4. REGISTRATION OF TRANSFER AND EXCHANGE OF
PREFERRED SECURITIES CERTIFICATES.
The Depositor shall keep or cause to be kept, at the office
or agency maintained pursuant to Section 5.8, a register or
registers for the purpose of registering Trust Securities
Certificates and transfers and exchanges of Preferred Securities
Certificates (the "Securities Register") in which, the registrar
designated by the Depositor (the "Securities Registrar"),
subject to such reasonable regulations as it may prescribe,
shall provide for the registration of Preferred Securities
Certificates and Common Securities Certificates (subject to
Section 5.10 in the case of the Common Securities Certificates)
and registration of transfers and exchanges of Preferred
Securities Certificates as herein provided. The Depositor shall
be the initial Securities Registrar.
Upon surrender for registration of transfer of any
Preferred Securities Certificate at the office or agency
maintained pursuant to Section 5.8, the Administrative Trustees
or any one of them shall execute and deliver, in the name of the
designated transferee or transferees, one or more new Preferred
Securities Certificates in authorized denominations of a like
aggregate Liquidation Amount dated the date of execution by such
Administrative Trustee or Trustees.
The Securities Registrar shall not be required to register
the transfer of any Preferred Securities that have been called
for redemption. At the option of a Holder, Preferred Securities
Certificates may be exchanged for other Preferred Securities
Certificates in authorized denominations of the same class and
of a like aggregate Liquidation Amount upon surrender of
the Preferred Securities Certificates to be exchanged at the
office or agency maintained pursuant to Section 5.8.
Every Preferred Securities Certificate presented or
surrendered for registration of transfer or exchange shall be
accompanied by a written instrument of transfer in form
satisfactory to an Administrative Trustee and the Securities
Registrar duly executed by the Holder or his attorney duly
authorized in writing. Each Preferred Securities Certificate
surrendered for registration of transfer or exchange shall be
canceled and subsequently disposed of by an Administrative
Trustee in accordance with such Person's customary practice.
No service charge shall be made for any registration of
transfer or exchange of Preferred Securities Certificates, but
the Securities Registrar may require payment of a sum sufficient
to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Preferred Securities
Certificates.
SECTION 5.5. MUTILATED, DESTROYED, LOST OR STOLEN TRUST
SECURITIES CERTIFICATES.
If (a) any mutilated Trust Securities Certificate shall be
surrendered to the Securities Registrar, or if the Securities
Registrar shall receive evidence to its satisfaction of the
destruction, loss or theft of any Trust Securities Certificate
and (b) there shall be delivered to the Securities Registrar and
the Administrative Trustees such security or indemnity as may be
required by them to save each of them harmless, then in the
absence of notice that such Trust Securities Certificate
shall have been acquired by a bona fide purchaser, the
Administrative Trustees, or any one of them, on behalf of the
Trust shall execute and make available for delivery, in exchange
for or in lieu of any such mutilated, destroyed, lost or stolen
Trust Securities Certificate, a new Trust Securities Certificate
of like class, tenor and denomination. In connection with the
issuance of any new Trust Securities Certificate under this
Section, the Administrative Trustees or the Securities Registrar
may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection
therewith. Any duplicate Trust Securities Certificate issued
pursuant to this Section shall constitute conclusive evidence of
an undivided beneficial interest in the assets of the Trust, as
if originally issued, whether or not the lost, stolen or
destroyed Trust Securities Certificate shall be found at any
time.
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SECTION 5.6. PERSONS DEEMED SECURITYHOLDERS.
The Trustees, the Paying Agent or the Securities Registrar
shall treat the Person in whose name any Trust Securities
Certificate shall be registered in the Securities Register as
the owner of such Trust Securities Certificate for the purpose
of receiving Distributions and for all other purposes
whatsoever, and neither the Trustees, the Paying Agent nor the
Securities Registrar shall be bound by any notice to the
contrary.
SECTION 5.7. ACCESS TO LIST OF SECURITYHOLDERS' NAMES AND
ADDRESSES.
Each Holder and each Owner shall be deemed to have agreed
not to hold the Depositor, the Property Trustee or the
Administrative Trustees accountable by reason of the disclosure
of its name and address, regardless of the source from which
such information was derived.
SECTION 5.8. MAINTENANCE OF OFFICE OR AGENCY.
The Administrative Trustees shall maintain 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 Trustees
in respect of the Trust Securities Certificates may be served.
The Administrative Trustees initially designate WSFS Financial
Corporation, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attn:
▇▇▇▇ ▇. ▇▇▇▇▇▇, as its principal corporate trust office for such
purposes. The Administrative Trustees shall give prompt written
notice to the Depositor and to the Securityholders of any change
in the location of the Securities Register or any such office or
agency.
SECTION 5.9. APPOINTMENT OF PAYING AGENT.
The Paying Agent shall make Distributions to
Securityholders from the Payment Account and shall report the
amounts of such Distributions to the Property Trustee and the
Administrative Trustees. Any Paying Agent shall have the
revocable power to withdraw funds from the Payment Account for
the purpose of making the Distributions referred to above. The
Administrative Trustees may revoke such power and remove the
Paying Agent if such Trustees determine in their sole discretion
that the Paying Agent shall have failed to perform its
obligations under this Trust Agreement in any material respect.
The Paying Agent shall initially be the Bank, and any
co-paying agent chosen by the Bank, and acceptable to the
Administrative Trustees and the Depositor. Any Person acting as
Paying Agent shall be permitted to resign as Paying Agent upon
30 days' written notice to the Administrative Trustees, the
Property Trustee and the Depositor. In the event that the Bank
shall no longer be the Paying Agent or a successor Paying Agent
shall resign or its authority to act be revoked, the
Administrative Trustees shall appoint a successor that is
acceptable to the Property Trustee and the Depositor to act as
Paying Agent (which shall be a bank or trust company). The
Administrative Trustees shall cause such successor Paying
Agent or any additional Paying Agent appointed by the
Administrative Trustees to execute and deliver to the Trustees
an instrument in which such successor Paying Agent or additional
Paying Agent shall agree with the Trustees that as Paying Agent,
such successor Paying Agent or additional Paying Agent will hold
all sums, if any, held by it for payment to the Securityholders
in trust for the benefit of the Securityholders entitled thereto
until such sums shall be paid to such Securityholders. The
Paying Agent shall return all unclaimed funds to the Property
Trustee and upon removal of a Paying Agent such Paying Agent
shall also return all funds in its possession to the Property
Trustee. The provisions of Sections 8.1, 8.3 and 8.6 herein
shall apply to the Bank also in its role as Paying Agent, for so
long as the Bank shall act as Paying Agent and, to the
extent applicable, to any other paying agent appointed
hereunder. Any reference in this Agreement to the Paying Agent
shall include any co-paying agent unless the context requires
otherwise.
SECTION 5.10. OWNERSHIP OF COMMON SECURITIES BY DEPOSITOR.
At the Closing Date, the Depositor shall acquire and retain
beneficial and record ownership of the Common Securities. To the
fullest extent permitted by law, other than a transfer in
connection with a consolidation or merger
20
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, any attempted transfer of the Common
Securities shall be void. The Administrative Trustees shall
cause each Common Securities Certificate issued to the Depositor
to contain a legend stating "THIS CERTIFICATE IS NOT
TRANSFERABLE.
SECTION 5.11. BOOK-ENTRY PREFERRED SECURITIES CERTIFICATES;
COMMON SECURITIES CERTIFICATE.
(a) The Preferred Securities Certificates, upon original
issuance, will be issued in the form of a typewritten Preferred
Securities Certificate or Certificates representing Book-Entry
Preferred Securities Certificates, to be delivered to The
Depository Trust Company, the initial Clearing Agency, by, or on
behalf of, the Trust. Such Preferred Securities Certificate or
Certificates shall initially be registered on the Securities
Register in the name of Cede & Co., the nominee of the initial
Clearing Agency, and no Owner will receive a Definitive
Preferred Securities Certificate representing such Owner's
interest in such Preferred Securities, except as provided in
Section 5.13. Unless and until Definitive Preferred Securities
Certificates have been issued to Owners pursuant to Section
5.13:
(i) the provisions of this Section 5.11(a) shall be
in full force and effect;
(ii) the Securities Registrar and the Trustees shall
be entitled to deal with the Clearing Agency for all
purposes of this Trust Agreement relating to the
Book-Entry Preferred Securities Certificates (including
the payment of the Liquidation Amount of and Distributions
on the Preferred Securities evidenced by Book-Entry
Preferred Securities Certificates and the giving
of instructions or directions to Owners of Preferred
Securities evidenced by Book-Entry Preferred Securities
Certificates) as the sole Holder of Preferred Securities
evidenced by Book-Entry Preferred Securities Certificates
and shall have no obligations to the Owners thereof;
(iii) to the extent that the provisions of this
Section 5.11 conflict with any other provisions of this
Trust Agreement, the provisions of this Section 5.11 shall
control; and
(iv) the rights of the Owners of the Book-Entry
Preferred Securities Certificates 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 and/or the Clearing Agency
Participants. Pursuant to the Certificate Depositary
Agreement, unless and until Definitive Preferred
Securities Certificates are issued pursuant to Section
5.13, the initial Clearing Agency will make book-entry
transfers among the Clearing Agency Participants and
receive and transmit payments on the Preferred Securities
to such Clearing Agency Participants.
(b) A single Common Securities Certificate representing
the Common Securities shall be issued to the Depositor in the
form of a definitive Common Securities Certificate.
SECTION 5.12. NOTICES TO CLEARING AGENCY.
To the extent that a notice or other communication to the
Owners is required under this Trust Agreement, unless and until
Definitive Preferred Securities Certificates shall have been
issued to Owners pursuant to Section 5.13, the Trustees shall
give all such notices and communications specified herein to be
given to Owners to the Clearing Agency, and shall have no
obligations to the Owners.
SECTION 5.13. DEFINITIVE PREFERRED SECURITIES CERTIFICATES.
If (a) the Depositor advises the Trustees in writing that
the Clearing Agency is no longer willing or able to properly
discharge its responsibilities with respect to the Preferred
Securities Certificates, and the Depositor is unable to locate a
qualified successor, (b) the Depositor at its option advises the
Trustees in writing that it elects to terminate
21
the book-entry system through the Clearing Agency or (c) after
the occurrence of a Debenture Event of Default, Owners of
Preferred Securities Certificates representing beneficial
interests aggregating at least a majority of the Liquidation
Amount advise the Administrative Trustees in writing that the
continuation of a book-entry system through the Clearing Agency
is no longer in the best interest of the Owners of Preferred
Securities Certificates, then the Administrative Trustee shall
notify the Clearing Agency and the Clearing Agency shall notify
all Owners of Preferred Securities Certificates and the other
Trustees of the occurrence of any such event and of the
availability of the Definitive Preferred Securities Certificates
to Owners of such class or classes, as applicable, requesting
the same. Upon surrender to the Administrative Trustees of the
typewritten Preferred Securities Certificate or Certificates
representing the Book Entry Preferred Securities Certificates by
the Clearing Agency, accompanied by registration instructions,
the Administrative Trustees, or any one of them, shall execute
the Definitive Preferred Securities Certificates in accordance
with the instructions of the Clearing Agency. Neither the
Securities Registrar nor the Trustees shall be liable for any
delay in delivery of such instructions and may conclusively
rely on, and shall be protected in relying on, such
instructions. Upon the issuance of Definitive Preferred
Securities Certificates, the Trustees shall recognize the
Holders of the Definitive Preferred Securities Certificates as
Securityholders. The Definitive Preferred Securities
Certificates shall be printed, lithographed or engraved or may
be produced in any other manner as is reasonably acceptable to
the Administrative Trustees, as evidenced by the execution
thereof by the Administrative Trustees or any one of them.
SECTION 5.14. RIGHTS OF SECURITYHOLDERS.
(a) The legal title to the Trust Property is vested
exclusively in the Property Trustee (in its capacity as such) in
accordance with Section 2.9, and the Securityholders shall not
have any right or title therein other than the undivided
beneficial interest in the assets of the Trust conferred by
their Trust Securities and they shall have no right to call for
any partition or division of property, profits or rights of the
Trust except as described below. The Trust Securities
shall be personal property giving only the rights specifically
set forth therein and in this Trust Agreement. The Trust
Securities shall have no preemptive or similar rights and when
issued and delivered to Securityholders against payment of the
purchase price therefor will be fully paid and nonassessable by
the Trust. The Holders of the Trust Securities, in their
capacities as such, shall be entitled to the same limitation of
personal liability extended to stockholders of private
corporations for profit organized under the General Corporation
Law of the State of Delaware.
(b) For so long as any Preferred Securities remain
Outstanding, if, upon a Debenture Event of Default, the
Debenture Trustee fails or the holders of not less than 25% in
principal amount of the outstanding Debentures fail to declare
the principal of all of the Debentures to be immediately due and
payable, the Holders of at least 25% in Liquidation Amount of
the Preferred Securities then Outstanding shall have such right
by a notice in writing to the Depositor and the Debenture
Trustee; and upon any such declaration such principal amount of
and the accrued interest on all of the Debentures shall become
immediately due and payable, provided that the payment of
principal and interest on such Debentures shall remain
subordinated to the extent provided in the Indenture.
At any time after such a declaration of acceleration with
respect to the Debentures has been made and before a judgment or
decree for payment of the money due has been obtained by
the Debenture Trustee as in the Indenture provided, 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
(including any Additional Interest (as defined in the
Indenture)) on all of the Debentures,
(B) the principal of (and premium, if any, on)
any Debentures which have become due otherwise than
by such declaration of acceleration and interest
thereon at the rate borne by the Debentures, and
22
(C) 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
Debentures, other than the non-payment of the principal of
the 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 aggregate 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 Debenture. 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 Book-Entry Preferred Securities
Certificates, a record date shall be established for
determining Holders of Outstanding Preferred Securities entitled
to join in such notice, which record date shall be at the close
of business on the day the Property Trustee receives such
notice. The Holders on such record date, or their duly
designated proxies, and only such Persons, shall be entitled to
join in such notice, whether or not such Holders remain Holders
after such record date; provided, that, unless such declaration
of acceleration, or rescission and annulment, as the case may
be, shall have become effective by virtue of the requisite
percentage having joined in such notice prior to the day which
is 90 days after such record date, such notice of declaration of
acceleration, or rescission and annulment, as the case may be,
shall automatically and without further action by any Holder be
canceled and of no further effect. Nothing in this paragraph
shall prevent a Holder, or a proxy of a Holder, from giving,
after expiration of such 90-day period, a new written notice of
declaration of acceleration, or rescission and annulment
thereof, as the case may be, that is identical to a written
notice which has been canceled pursuant to the proviso to
the preceding sentence, in which event a new record date shall
be established pursuant to the provisions of this Section
5.14(b).
(c) For so long as any Preferred Securities remain
Outstanding, to the fullest extent permitted by law and subject
to the terms of this Trust Agreement and the Indenture, upon a
Debenture Event of Default specified in Section 5.1(1) or 5.1(2)
of the Indenture, any Holder of Preferred Securities shall have
the right to institute a proceeding directly against the
Depositor, pursuant to Section 5.8 of the Indenture, for
enforcement of payment to such Holder of the principal amount of
or interest on Debentures having a principal amount equal to the
Liquidation Amount of the Preferred Securities of such Holder (a
"Direct Action"). Except as set forth in Section 5.14(b) and
this Section 5.14(c), the Holders of Preferred Securities shall
have no right to exercise directly any right or remedy available
to the holders of, or in respect of, the Debentures.
ARTICLE VI
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
SECTION 6.1. LIMITATIONS ON VOTING RIGHTS.
(a) Except as provided in this Section, in Sections 5.14,
8.10 and 10.2 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 Trust or the obligations of the
parties hereto, nor shall
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anything herein set forth, or contained in the terms of the
Trust Securities Certificates, be construed so as to constitute
the Securityholders from time to time as partners or members of
an association.
(b) So long as any Debentures are held by the Property
Trustee, the Trustees shall not (i) direct the time, method and
place of conducting any proceeding for any remedy available to
the Debenture Trustee, or executing any trust or power conferred
on the Debenture Trustee with respect to such Debentures, (ii)
waive any past default which is waivable under Section 5.13 of
the Indenture, (iii) exercise any right to rescind or annul a
declaration that the principal of all the Debentures shall be
due and payable or (iv) consent to any amendment, modification
or termination of the Indenture or the Debentures, where such
consent shall be required, without, in each case, obtaining the
prior approval of the Holders of at least a majority in
Liquidation Amount of all Outstanding Preferred Securities,
provided, however, that where a consent under the Indenture
would require the consent of each Holder of 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 Trustees 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 from the Debenture Trustee with respect to the
Debentures. In addition to obtaining the foregoing approvals of
the Holders of the Preferred Securities, prior to taking any of
the foregoing actions, the Trustees shall, at the expense of the
Depositor, obtain an opinion of its tax advisors to the effect
that such action shall not cause the Trust to fail to be
classified as a grantor trust for United States Federal income
tax purposes.
(c) If any proposed amendment to the Trust Agreement
provides for, or the Trustees otherwise propose to effect, (i)
any action that would adversely affect in any material respect
the powers, preferences or special rights of the Preferred
Securities, whether by way of amendment to the Trust Agreement
or otherwise, or (ii) the dissolution, winding-up or termination
of the Trust, other than pursuant to the terms of this Trust
Agreement, then the Holders of Outstanding 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 at least a
majority in Liquidation Amount of the Outstanding 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 Trust to fail
to be classified as a grantor trust for United States federal
income tax purposes.
SECTION 6.2. NOTICE OF MEETINGS.
Notice of all meetings of the Preferred Securityholders,
stating the time, place and purpose of the meeting, shall be
given by the Property Trustee pursuant to Section 10.8 to each
Preferred Securityholder of record, at his registered address,
at least 15 days and not more than 90 days before the meeting.
At any such meeting, any business properly before the meeting
may be so considered whether or not stated in the notice of the
meeting. Any adjourned meeting may be held as adjourned without
further notice.
SECTION 6.3. MEETINGS OF PREFERRED SECURITYHOLDERS.
No annual meeting of Securityholders is required to be
held. The Administrative Trustees, however, shall call a meeting
of Preferred Securityholders to vote on any matter upon
the written request of the Preferred Securityholders of record
of 25% of the Outstanding Preferred Securities (based upon their
Liquidation Amount) and the Administrative Trustees or
the Property Trustee may, at any time in their discretion, call
a meeting of Preferred Securityholders to vote on any matters as
to which Preferred Securityholders are entitled to vote.
Preferred Securityholders of record of 50% of the
Outstanding Preferred Securities (based upon their Liquidation
Amount), present in person or by proxy, shall constitute a
quorum at any meeting of Securityholders.
If a quorum is present at a meeting, an affirmative vote by
the Preferred Securityholders of record present, in person or by
proxy, holding more than a majority of the Preferred Securities
(based upon their Liquidation Amount)
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held by the Preferred Securityholders of record present, either
in person or by proxy, at such meeting shall constitute the
action of the Preferred Securityholders, unless this Trust
Agreement requires a greater number of affirmative votes.
SECTION 6.4. VOTING RIGHTS.
Securityholders shall be entitled to one vote for each
1,000 of Liquidation Amount represented by their Trust
Securities in respect of any matter as to which such
Securityholders are entitled to vote.
SECTION 6.5. PROXIES, ETC.
At any meeting of Securityholders, any Securityholder
entitled to vote thereat may vote by proxy, provided that no
proxy shall be voted at any meeting unless it shall have been
placed on file with the Administrative Trustees, or with such
other officer or agent of the Trust as the Administrative
Trustees may direct, for verification prior to the time at which
such vote shall be taken. 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 Securityholders of record shall be entitled to
vote. When Trust Securities are held jointly by several persons,
any one of them may vote at any meeting in person or by proxy in
respect of such Trust Securities, but if more than one of them
shall be present at such meeting in person or by proxy, and such
joint owners or their proxies so present disagree as to any vote
to be cast, such vote shall not be received in respect of such
Trust Securities. A proxy purporting to be executed by or on
behalf of a Securityholder shall be deemed valid unless
challenged at or prior to its exercise, and the burden of
proving invalidity shall rest on the challenger. No proxy shall
be valid more than three years after its date of execution.
SECTION 6.6. SECURITYHOLDER ACTION BY WRITTEN CONSENT.
Any action which may be taken by Securityholders at a
meeting may be taken without a meeting if Securityholders
holding more than a majority of all Outstanding Trust Securities
(based upon their Liquidation Amount) entitled to vote in
respect of such action (or such larger proportion thereof as
shall be required by any express provision of this Trust
Agreement) shall consent to the action in writing.
SECTION 6.7. RECORD DATE FOR VOTING AND OTHER PURPOSES.
For the purposes of determining the Securityholders who are
entitled to notice of and to vote at any meeting or by written
consent, or to participate in any Distribution on the Trust
Securities in respect of which a record date is not otherwise
provided for in this Trust Agreement, or for the purpose of any
other action, the Administrative Trustees may from time to
time fix a date, not more than 90 days prior to the date of any
meeting of Securityholders or the payment of a Distribution or
other action, as the case may be, as a record date for the
determination of the identity of the Securityholders of record
for such purposes.
SECTION 6.8. ACTS OF SECURITYHOLDERS.
Any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this
Trust Agreement to be given, made or taken by Securityholders or
Owners may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such
Securityholders or Owners in person or by an agent duly
appointed in writing; and, except as otherwise expressly
provided herein, such action shall become effective when such
instrument or instruments are delivered to an Administrative
Trustee. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Securityholders or Owners 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 Trustees, if made in
the manner provided in this Section.
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PAGE>
The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a
witness of such execution or by a certificate of a notary public
or other officer authorized by law to take acknowledgments of
deeds, certifying that the individual signing such instrument or
writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also
constitute sufficient proof of his authority. The fact and date
of the execution of any such instrument or writing, or the
authority of the Person executing the same, may also be
proved in any other manner which any Trustee receiving the same
deems sufficient.
The ownership of Preferred Securities shall be proved by
the Securities Register.
Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Securityholder of any Trust
Security shall bind every future Securityholder of the same
Trust Security and the Securityholder of every Trust Security
issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted
or suffered to be done by the Trustees or the Trust in reliance
thereon, whether or not notation of such action is made upon
such Trust Security.
Without limiting the foregoing, a Securityholder entitled
hereunder to take any action hereunder with regard to any
particular Trust Security may do so with regard to all or any
part of the Liquidation Amount of such Trust Security or by one
or more duly appointed agents each of which may do so pursuant
to such appointment with regard to all or any part of such
liquidation amount.
If any dispute shall arise between the Securityholders and
the Administrative Trustees or among such Securityholders or
Trustees with respect to the authenticity, validity or binding
nature of any request, demand, authorization, direction,
consent, waiver or other Act of such Securityholder or Trustee
under this Article VI, then the determination of such matter by
the Property Trustee, pursuant to Section 8.3(b) hereof, shall
be conclusive with respect to such matter.
A Securityholder may institute a legal proceeding directly
against the Depositor under the Common Securities Guarantee and
the Preferred Securities Guarantee to enforce its rights under
the Preferred Securities Guarantee without first instituting a
legal proceeding against the Guarantee Trustee (as defined in
the Preferred Securities Guarantee), the Trust or any person or
entity.
SECTION 6.9. INSPECTION OF RECORDS.
Upon reasonable notice to the Administrative Trustees and
the Property Trustee, the records of the Trust shall be open to
inspection by Securityholders during normal business hours
for any purpose reasonably related to such Securityholder's
interest as a Securityholder.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
SECTION 7.1. REPRESENTATIONS AND WARRANTIES OF THE PROPERTY
TRUSTEE AND THE DELAWARE TRUSTEE.
The Property Trustee and the Delaware Trustee, each
severally on behalf of and as to itself, hereby represents and
warrants for the benefit of the Depositor and the
Securityholders that:
(a) the Property Trustee is a Delaware banking corporation
duly organized, validly existing and in good standing under the
existing and in good standing under the laws of the State
of Delaware;
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(b) the Property Trustee has full corporate power,
authority and legal right to execute, deliver and perform its
obligations under this Trust Agreement and has taken all
necessary action to authorize the execution, delivery and
performance by it of this Trust Agreement;
(c) the Delaware Trustee is a Delaware corporation duly
organized, validly existing and in good standing in the State of
Delaware;
(d) the Delaware Trustee has full corporate power,
authority and legal right to execute, deliver and perform its
obligations under this Trust Agreement and has taken all
necessary action to authorize the execution, delivery and
performance by it of this Trust Agreement;
(e) this Trust Agreement has been duly authorized,
executed and delivered by the Property Trustee and the Delaware
Trustee and constitutes the valid and legally binding
agreement of each of the Property Trustee and the Delaware
Trustee enforceable against each of them in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles;
(f) the execution, delivery and performance of this Trust
Agreement has been duly authorized by all necessary corporate or
other action on the part of the Property Trustee and the
Delaware Trustee and does not require any approval of
stockholders of the Property Trustee and the Delaware Trustee
and such execution, delivery and performance will not (i)
violate the Charter or By-laws of the Property Trustee or the
Delaware Trustee, (ii) violate any provision of, or constitute,
with or without notice or lapse of time, a default under, or
result in the creation or imposition of, any Lien on any
properties included in the Trust Property pursuant to the
provisions of, any indenture, mortgage, credit agreement,
license or other agreement or instrument to which the Property
Trustee or the Delaware Trustee is a party or by which it is
bound, or (iii) violate any law, governmental rule or regulation
of the United States or the State of Delaware, as the case may
be, governing the banking, trust or general powers of the
Property Trustee or the Delaware Trustee (as appropriate in
context) or any order, judgment or decree applicable to the
Property Trustee or the Delaware Trustee;
(g) neither the authorization, execution or delivery by
the Property Trustee or the Delaware Trustee of this Trust
Agreement nor the consummation of any of the transactions by
the Property Trustee or the Delaware Trustee (as appropriate in
context) contemplated herein or therein requires the consent or
approval of, the giving of notice to, the registration with or
the taking of any other action with respect to any governmental
authority or agency under any existing federal law governing the
banking, trust or general powers of the Property Trustee or the
Delaware Trustee, as the case may be, under the laws of the
United States or the State of Delaware;
(h) there are no proceedings pending or, to the best of
each of the Property Trustee's and the Delaware Trustee's
knowledge, threatened against or affecting the Property Trustee
or the Delaware Trustee in any court or before any governmental
authority, agency or arbitration board or tribunal which,
individually or in the aggregate, would materially and adversely
affect the Trust or would question the right, power and
authority of the Property Trustee or the Delaware Trustee, as
the case may be, to enter into or perform its obligations as one
of the Trustees under this Trust Agreement.
SECTION 7.2. REPRESENTATIONS AND WARRANTIES OF DEPOSITOR.
The Depositor hereby represents and warrants for the
benefit of the Securityholders that:
(a) the Trust Securities Certificates issued at the
Closing Date on behalf of the Trust have been duly authorized
and will have been, duly and validly executed, issued and
delivered by the Trustees pursuant to the terms and provisions
of, and in accordance with the requirements of, this Trust
Agreement and the Securityholders will be, as of each such date,
entitled to the benefits of this Trust Agreement; and
27
(b) there are no taxes, fees or other governmental charges
payable by the Trust (or the Trustees on behalf of the Trust)
under the laws of the State of Delaware or any political
subdivision thereof in connection with the execution, delivery
and performance by the Property Trustee or the Delaware Trustee,
as the case may be, of this Trust Agreement.
ARTICLE VIII
THE TRUSTEES
SECTION 8.1. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) The duties and responsibilities of the Trustees shall
be as provided by this Trust Agreement and, in the case of the
Property Trustee, by the Trust Indenture Act. Notwithstanding
the foregoing, no provision of this Trust Agreement shall
require the Trustees to expend or risk their own funds or
otherwise incur any financial liability in the performance of
any of their duties hereunder, or in the exercise of any of
their rights or powers, if they shall have reasonable
grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably
assured to it. Whether or not therein expressly so provided,
every provision of this Trust Agreement relating to the conduct
or affecting the liability of or affording protection to the
Trustees shall be subject to the provisions of this Section.
Nothing in this Trust Agreement shall be construed to release an
Administrative Trustee or the Delaware Trustee from liability
for its own grossly negligent action, its own grossly negligent
failure to act, or its own willful misconduct. To the extent
that, at law or in equity, an Administrative Trustee has duties
(including fiduciary duties) and liabilities relating thereto to
the Trust or to the Securityholders, such Administrative Trustee
or the Delaware Trustee shall not be liable to the Trust or to
any Securityholder for such Trustee's good faith reliance on the
provisions of this Trust Agreement. The provisions of this
Trust Agreement, to the extent that they restrict the duties and
liabilities of the Administrative Trustees or the Delaware
Trustee otherwise existing at law or in equity, are agreed by
the Depositor and the Securityholders to replace such other
duties and liabilities of the Administrative Trustees or the
Delaware Trustee.
(b) All payments made by the Property Trustee or a Paying
Agent in respect of the Trust Securities shall be made only from
the revenue and proceeds from the Trust Property and only to the
extent that there shall be sufficient revenue or proceeds from
the Trust Property to enable the Property Trustee or a Paying
Agent to make payments in accordance with the terms hereof. Each
Securityholder, by its acceptance of a Trust Security, agrees
that it will look solely to the revenue and proceeds from the
Trust Property to the extent legally available for distribution
to it as herein provided and that the Trustees are not
personally liable to it for any amount distributable in respect
of any Trust Security or for any other liability in respect of
any Trust Security. This Section 8.1(b) does not limit the
liability of the Trustees expressly set forth elsewhere in this
Trust Agreement or, in the case of the Property Trustee, in the
Trust Indenture Act.
(c) No provision of this Trust Agreement shall be
construed to relieve the Property Trustee from liability for its
own negligent action, its own negligent failure to act, or its
own willful misconduct, except that:
(i) the Property Trustee shall not be liable for any
error of judgment made in good faith by an authorized
officer of the Property Trustee, unless it shall be proved
that the Property Trustee was negligent in ascertaining
the pertinent facts;
(ii) the Property Trustee shall not be liable with
respect to any action taken or omitted to be taken by it
in good faith in accordance with the direction of the
Holders of not less than a majority in Liquidation Amount
of the Trust Securities relating to the time, method and
place of conducting any proceeding for any remedy
available to the Property Trustee, or exercising any trust
or power conferred upon the Property Trustee under this
Trust Agreement;
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(iii) the Property Trustee's sole duty with respect to
the custody, safe keeping and physical preservation of the
Debentures and the Payment Account shall be to deal with
such Property in a similar manner as the Property Trustee
deals with similar property for its own account, subject
to the protections and limitations on liability afforded
to the Property Trustee under this Trust Agreement and the
Trust Indenture Act;
(iv) the Property Trustee shall not be liable for any
interest on any money received by it except as it may
otherwise agree with the Depositor; and money held by the
Property Trustee need not be segregated from other funds
held by it except in relation to the Payment Account
maintained by the Property Trustee pursuant to Section
3.1 and except to the extent otherwise required by law;
and
(v) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrative Trustees
or the Depositor with their respective duties under
this Trust Agreement, nor shall the Property Trustee be
liable for the default or misconduct of the
Administrative Trustees or the Depositor.
(vi) 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.
(vii) no provision of the 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 exercises
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.
SECTION 8.2. CERTAIN NOTICES.
Within five Business Days after the occurrence of any Event
of Default actually known to the 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 Securityholders, the Administrative
Trustees and the Depositor, unless such Event of Default
shall have been cured or waived.
Within five Business Days after the receipt of notice of
the Depositor's exercise of its right to defer the payment of
interest on the Debentures pursuant to the Indenture, the
Administrative Trustee shall transmit, in the manner and to the
extent provided in Section 10.8, notice of such exercise to the
Securityholders and the Property Trustee, unless such exercise
shall have been revoked.
SECTION 8.3. CERTAIN RIGHTS OF PROPERTY TRUSTEE.
Subject to the provisions of Section 8.1:
(a) the Property Trustee may rely and shall be 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,
▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) if (i) in performing its duties under this Trust
Agreement the Property Trustee is required to decide between
alternative courses of action or (ii) in construing any of the
provisions of this Trust Agreement the Property Trustee finds
the same ambiguous or inconsistent with any other provisions
contained herein or (iii) the Property Trustee is unsure of the
application of any provision of this Trust Agreement, then,
except as to any matter as to which the Preferred
Securityholders are entitled to vote under the terms of this
Trust Agreement, the Property Trustee shall deliver a notice to
the Depositor requesting written instructions of the Depositor
as to the course of action to be taken and the Property Trustee
shall take such action, or refrain from taking such action, as
the Property Trustee shall be instructed in writing to take, or
to refrain from taking, by the Depositor; provided, however,
that if the Property Trustee does not receive such instructions
of the Depositor within ten Business Days after it has delivered
such notice, or such reasonably shorter period of time set forth
in such notice (which to the extent practicable shall not be
less than two Business Days), it may, but shall be under no duty
to, take or refrain from taking such action not inconsistent
with this Trust Agreement as it shall deem advisable and in the
best interests of the Securityholders, in which event the
Property Trustee shall have no liability except for its own bad
faith, negligence or willful misconduct;
(c) any direction or act of the Depositor or the
Administrative Trustees contemplated by this Trust Agreement
shall be sufficiently evidenced by an Officers' Certificate;
(d) whenever in the administration of this Trust
Agreement, the Property Trustee shall deem it desirable that a
matter be established before undertaking, suffering or omitting
any action hereunder, the Property Trustee (unless other
evidence is herein specifically prescribed) may, in the absence
of bad faith on its part, request and rely upon an Officers'
Certificate which, upon receipt of such request, shall be
promptly delivered by the Depositor or the Administrative
Trustees;
(e) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including
any financing or continuation statement or any filing under tax
or securities laws) or any rerecording, refiling or
reregistration thereof;
(f) the Property Trustee may consult with counsel (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, such counsel may be counsel to the
Depositor or any of its Affiliates, and may include any of its
employees; the Property Trustee shall have the right at any time
to seek instructions concerning the administration of this Trust
Agreement from any court of competent jurisdiction;
(g) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Trust
Agreement at the request or direction of any of the
Securityholders pursuant to this Trust Agreement, unless such
Securityholders shall have offered to the Property Trustee
security or indemnity reasonable to it against the costs,
expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(h) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond, debenture, note
or other evidence of indebtedness or other paper or document,
unless requested in writing to do so by one or more
Securityholders, but the Property Trustee may make such further
inquiry or investigation into such facts or matters as it may
see fit;
(i) the Property Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly
or by or through its agents or attorneys, provided that the
Property Trustee shall be
30
responsible for its own negligence or recklessness with respect
to selection of any agent or attorney appointed by it hereunder;
(j) whenever in the administration of this Trust Agreement
the Property Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right or
taking any other action hereunder the Property Trustee (i) may
request instructions from the Holders of the Trust Securities
which instructions may only be given by the Holders of the same
proportion in Liquidation Amount of the Trust Securities as
would be entitled to direct the Property Trustee under the terms
of the Trust Securities in respect of such remedy, right or
action, (ii) may refrain from enforcing such remedy or right or
taking such other action until such instructions are received,
and (iii) shall be protected in acting in accordance with such
instructions;
(k) except as otherwise expressly provided by this Trust
Agreement, the Property Trustee shall not be under any
obligation to take any action that is discretionary under the
provisions of this Trust Agreement; and
(l) the Property Trustee shall not be required to give any
bond or surety in respect of the performance of its powers and
duties hereunder.
No provision of this Trust Agreement shall be deemed to
impose any duty or obligation on the Property Trustee to perform
any act or acts or exercise any right, power, duty or obligation
conferred or imposed on it, in any jurisdiction in which it
shall be illegal, or in which the Property Trustee shall be
unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any such right,
power, duty or obligation. No permissive power or authority
available to the Property Trustee shall be construed to be a
duty.
SECTION 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 Trust, and
the Trustees do not assume any responsibility for their
correctness. The Trustees shall not be accountable for the use
or application by the Depositor of the proceeds of the
Debentures.
SECTION 8.5. MAY HOLD SECURITIES.
Except as provided in the definition of the term
"Outstanding" in Article I, any Trustee or any other agent of
any Trustee or the Trust, in its individual or any other
capacity, may become the owner or pledgee of Trust Securities
and, subject to Sections 8.8 and 8.13, may otherwise
deal with the Trust with the same rights it would have if it
were not a Trustee or such other agent.
SECTION 8.6. COMPENSATION; INDEMNITY; FEES.
The Depositor agrees:
(a) to pay to the 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) as
specified in a separate agreement between any of the Trustees
and the Depositor.
(b) except as otherwise expressly provided herein, to
reimburse the Trustees upon request for all expenses,
disbursements and advances incurred or made by the Trustees in
accordance with any provision of this Trust Agreement (including
the reasonable compensation and the expenses and disbursements
of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence
or bad faith; and
(c) to the fullest extent permitted by applicable law, to
indemnify and hold harmless (i) each Trustee, (ii) any Affiliate
of any Trustee, (iii) any officer, director, shareholder,
employee, representative or agent of any
31
Trustee, and (iv) any employee or agent of the Trust or its
Affiliates, (referred to herein as an "Indemnified Person") from
and against any loss, damage, liability, tax, penalty, expense
or claim of any kind or nature whatsoever incurred by such
Indemnified Person by reason of the creation, operation or
termination of the Trust or any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of
the Trust and in a manner such Indemnified Person reasonably
believed to be within the scope of 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 gross negligence (ordinary
negligence in the case of the Property Trustee) or willful
misconduct with respect to such acts or omissions.
The provisions of this Section 8.6 shall survive the
termination of this Trust Agreement.
No 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 and any 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 Trust, and the 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 Trust, shall not be
deemed wrongful or improper. Neither the Depositor, nor any
Trustee, shall be obligated to present any particular investment
or other opportunity to the Trust even if such opportunity is of
a character that, if presented to the Trust, could be taken by
the Trust, and the Depositor or any 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 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.
(a) There shall at all times be a Property Trustee
hereunder with respect to the Trust Securities. The Property
Trustee shall be a Person that is eligible pursuant to the Trust
Indenture Act to act as such and has a combined capital and
surplus of at least $50,000,000. If any such Person publishes
reports of condition at least annually, pursuant to law or to
the requirements of its supervising or examining authority, then
for the purposes of this Section, 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.
(b) There shall at all times be one or more Administrative
Trustees hereunder with respect to the Trust Securities. Each
Administrative Trustee shall be either a natural person who
is at least 21 years of age or a legal entity that shall act
through one or more persons authorized to bind that entity.
(c) There shall at all times be a Delaware Trustee with
respect to the Trust Securities. The Delaware Trustee shall
either be (i) a natural person who is at least 21 years of age
and a resident of the State of Delaware or (ii) a legal entity
with its principal place of business in the State of Delaware
and that otherwise meets the requirements of applicable Delaware
law that shall act through one or more persons authorized to
bind such entity.
SECTION 8.8. CONFLICTING INTERESTS.
If the Property Trustee has or shall acquire a conflicting
interest within the meaning of the Trust Indenture Act, the
Property Trustee shall either eliminate such interest or resign,
to the extent and in the manner provided by, and subject to the
provisions of, the Trust Indenture Act and this Trust Agreement.
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SECTION 8.9. CO-TRUSTEES AND SEPARATE TRUSTEE.
Unless an Event of Default shall have occurred and be
continuing, at any time or times, for the purpose of meeting the
legal requirements of the Trust Indenture Act or of any
jurisdiction in which any part of the Trust Property may at the
time be located, the Depositor and the Administrative Trustees,
by agreed action of the majority of such Trustees, shall have
power to appoint, and upon the written request of the
Administrative Trustees, the Depositor shall for such purpose
join with the Administrative Trustees 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. If the Depositor
does not join in such appointment within 15 days after the
receipt by it of a request so to do, or in case a Debenture
Event of Default has occurred and is continuing, the Property
Trustee alone shall have power to make such appointment. Any
co-trustee or separate trustee appointed pursuant to this
Section shall either be (i) a natural person who is at least 21
years of age and a resident of the United States or (ii) a legal
entity with its principal place of business in the United
States that shall act through one or more persons authorized to
bind such entity.
Should any written instrument from the Depositor be
required by any co-trustee or separate trustee so appointed for
more fully confirming to such co-trustee or separate trustee
such property, title, right, or power, any and all such
instruments shall, on request, be executed, acknowledged and
delivered by the Depositor.
Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject
to the following terms, namely:
(a) The Trust Securities shall be executed and delivered
and all rights, powers, duties, and obligations hereunder in
respect of the custody of securities, cash and other personal
property held by, or required to be deposited or pledged with,
the Trustees specified hereunder shall be exercised solely by
such Trustees and not by such co-trustee or separate trustee.
(b) The rights, powers, duties, and obligations hereby
conferred or imposed upon the Property Trustee in respect of any
property covered by such appointment shall be conferred or
imposed upon and exercised or performed by the Property Trustee
or by the Property Trustee and such co-trustee or separate
trustee jointly, as shall be provided in the instrument
appointing such co-trustee or separate trustee, except to the
extent that under any law of any jurisdiction in which
any particular act is to be performed, the Property Trustee
shall be incompetent or unqualified to perform such act, in
which event such rights, powers, duties and obligations shall be
exercised and performed by such co-trustee or separate trustee.
(c) The Property Trustee at any time, by an instrument in
writing executed by it, with the written concurrence of the
Depositor, may accept the resignation of or remove any
co-trustee or separate trustee appointed under this Section,
and, in case a Debenture Event of Default has occurred and is
continuing, the Property Trustee shall have power to accept the
resignation of, or remove, any such co-trustee or separate
trustee without the concurrence of the Depositor. Upon
the written request of the Property Trustee, the Depositor shall
join with the Property Trustee in the execution, delivery and
performance of all instruments and agreements necessary or
proper to effectuate such resignation or removal. A successor to
any co-trustee or separate trustee so resigned or removed may be
appointed in the manner provided in this Section.
(d) No co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the
Property Trustee or any other trustee hereunder.
(e) The Property Trustee shall not be liable by reason of
any act of a co-trustee or separate trustee.
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(f) Any Act of Holders delivered to the Property Trustee
shall be deemed to have been delivered to each such co-trustee
and separate trustee.
SECTION 8.10. RESIGNATION AND REMOVAL; APPOINTMENT OF
SUCCESSOR.
No resignation or removal of any Trustee (the "Relevant
Trustee") and no appointment of a successor Trustee pursuant to
this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the
applicable requirements of Section 8.11.
Subject to the immediately preceding paragraph, the
Relevant Trustee may resign at any time by giving written notice
thereof to the Securityholders. If the instrument of acceptance
by the successor Trustee required by Section 8.11 shall not have
been delivered to the Relevant Trustee within 30 days after the
giving of such notice of resignation, the Relevant Trustee may
petition, at the expense of the Trust, any court of competent
jurisdiction for the appointment of a successor Relevant
Trustee.
Unless a Debenture Event of Default shall have occurred and
be continuing, any Trustee may be removed at any time by Act of
the Common Securityholder. If a Debenture Event of Default shall
have occurred and be continuing, the Property Trustee or the
Delaware Trustee, or both of them, may be removed at such time
by Act of the Holders of a majority in Liquidation Amount of the
Preferred Securities, delivered to the Relevant Trustee (in its
individual capacity and on behalf of the Trust). An
Administrative Trustee may be removed by the Common
Securityholder at any time.
If any Trustee shall resign, be removed or become incapable
of acting as Trustee, or if a vacancy shall occur in the office
of any Trustee for any cause, at a time when no Debenture
Event of Default shall have occurred and be continuing, the
Common Securityholder, by Act of the Common Securityholder
delivered to the retiring Trustee, shall promptly appoint a
successor Trustee or Trustees, and the retiring Trustee shall
comply with the applicable requirements of Section 8.11. If the
Property Trustee or the Delaware Trustee shall resign, be
removed or become incapable of continuing to act as the Property
Trustee or the Delaware Trustee, as the case may be, at a time
when a Debenture Event of Default shall have occurred and be
continuing, the Preferred Securityholders, by Act of the
Securityholders of a majority in Liquidation Amount of
the Preferred Securities then Outstanding delivered to the
retiring Relevant Trustee, shall promptly appoint a successor
Relevant Trustee or Trustees, and such successor Trustee shall
comply with the applicable requirements of Section 8.11. If an
Administrative Trustee shall resign, be removed or become
incapable of acting as Administrative Trustee, at a time when a
Debenture Event of Default shall have occurred and be
continuing, the Common Securityholder by Act of the Common
Securityholder delivered to the Administrative Trustee shall
promptly appoint a successor Administrative Trustee or
Administrative Trustees and such successor Administrative
Trustee or Trustees shall comply with the applicable
requirements of Section 8.11. If no successor Relevant Trustee
shall have been so appointed by the Common Securityholder or the
Preferred Securityholders and accepted appointment in the manner
required by Section 8.11, any Securityholder who has been a
Securityholder of Trust Securities for at least six months may,
on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a
successor Relevant Trustee.
The Property Trustee shall give notice of each resignation
and each removal of a Trustee and each appointment of a
successor Trustee to all Securityholders in the manner provided
in Section 10.8 and shall give notice to the Depositor. Each
notice shall include the name of the successor Relevant Trustee
and the address of its Corporate Trust Office if it is the
Property Trustee.
Notwithstanding the foregoing or any other provision of
this Trust Agreement, in the event any Administrative Trustee or
a Delaware Trustee who is a natural person dies or becomes,
in the opinion of the Depositor, incompetent or incapacitated,
the vacancy created by such death, incompetence or incapacity
may be filled by (a) the unanimous act of the remaining
Administrative Trustees if there are at least two of them or (b)
otherwise by the Depositor (with
34
the successor in each case being a Person who satisfies the
eligibility requirement for Administrative Trustees or Delaware
Trustee, as the case may be, set forth in Section 8.7).
SECTION 8.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
In case of the appointment hereunder of a successor Trustee
such successor Trustee so appointed shall execute, acknowledge
and deliver to the Trust and to the retiring Trustee an
instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on the
request of the Depositor or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver
an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and if the
Property Trustee is the resigning Trustee shall duly assign,
transfer and deliver to the successor Trustee all property and
money held by such retiring Property Trustee hereunder.
In case of the appointment hereunder of a successor
Relevant Trustee, the retiring Relevant Trustee and each
successor Relevant Trustee with respect to the Trust Securities
shall execute and deliver an amendment hereto wherein each
successor Relevant Trustee shall accept such appointment and
which (a) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, each
successor Relevant Trustee all the rights, powers, trusts and
duties of the retiring Relevant Trustee with respect to the
Trust Securities and the Trust and (b) shall add to or change
any of the provisions of this Trust Agreement as shall be
necessary to provide for or facilitate the administration of the
Trust by more than one Relevant Trustee, it being understood
that nothing herein or in such amendment shall constitute such
Relevant Trustees co-trustees and upon the execution and
delivery of such amendment the resignation or removal of the
retiring Relevant Trustee shall become effective to the extent
provided therein and each such successor Relevant Trustee,
without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the
retiring Relevant Trustee; but, on request of the Trust or any
successor Relevant Trustee such retiring Relevant Trustee shall
duly assign, transfer and deliver to such successor Relevant
Trustee all Trust Property, all proceeds thereof and money held
by such retiring Relevant Trustee hereunder with respect to the
Trust Securities and the Trust.
Upon request of any such successor Relevant Trustee, the
Trust shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Relevant
Trustee all such rights, powers and trusts referred to in the
first or second preceding paragraph, as the case may be.
No successor Relevant Trustee shall accept its appointment
unless at the time of such acceptance such successor Relevant
Trustee shall be qualified and eligible under this Article.
SECTION 8.12. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION
TO BUSINESS.
Any corporation into which the Property Trustee or the
Delaware Trustee may be merged or converted or with which it may
be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which such Relevant Trustee shall
be a party, or any corporation succeeding to all or
substantially all the corporate trust business of such Relevant
Trustee, shall be the successor of such Relevant Trustee
hereunder, provided such corporation shall be otherwise
qualified and eligible under this Article, without the execution
or filing of any paper or any further act on the part of any of
the parties hereto.
SECTION 8.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST
DEPOSITOR OR TRUST.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement,
adjustment, composition or other similar judicial proceeding
relative to the Trust or any other obligor upon the Trust
Securities or the property of the Trust or of such other obligor
or their creditors, the Property Trustee (irrespective of
whether any Distributions on the Trust Securities shall then be
due and payable as therein expressed or by declaration
35
or otherwise and irrespective of whether the Property Trustee
shall have made any demand on the Trust for the payment of any
past due Distributions) shall be entitled and empowered, to the
fullest extent permitted by law, by intervention in such
proceeding or otherwise:
(a) to file and prove a claim for the whole amount of any
Distributions owing and unpaid in respect of the 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 moneys 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 first pay to the Property
Trustee any amount due it for the reasonable compensation,
expenses, disbursements and advances of the Property Trustee,
its agents and counsel, and any other amounts due the Property
Trustee.
Nothing herein contained shall be deemed to authorize the
Property Trustee to authorize or consent to or accept or adopt
on behalf of any Holder any plan of reorganization, arrangement
adjustment or compensation affecting the Trust Securities or the
rights of any Holder thereof or to authorize the Property
Trustee to vote in respect of the claim of any Holder in any
such proceeding; provided however, that the Trustee may on
behalf of the Holders vote for the election of a trustee in
bankruptcy or similar official and may be a member of the
creditors' committee.
SECTION 8.14. REPORTS BY PROPERTY TRUSTEE.
(a) Not later than March 31 of each year commencing with
March 31, 1999, the Property Trustee shall transmit to all
Securityholders in accordance with Section 10.8, and to the
Depositor, a brief report dated as of the immediately preceding
December 31 with respect to:
(i) its eligibility under Section 8.7 or, in lieu
thereof, if to the best of its knowledge it has continued to be
eligible under said Section, a written statement to such effect;
(ii) a statement that the Property Trustee has
complied with all of its obligations under this Trust Agreement
during the twelve-month period (or, in the case of the
initial report, the period since the Closing Date) ending with
such December 31 or, if the Property Trustee has not complied in
any material respect with such obligations, a description of
such noncompliance; and
(iii) any change in the property and funds in its
possession as Property Trustee since the date of its last report
and any action taken by the Property Trustee in the performance
of its duties hereunder which it has not previously reported and
which in its opinion materially affects the Trust Securities.
(b) In addition the Property Trustee shall transmit to
Securityholders such reports concerning the Property Trustee and
its actions under this Trust Agreement as may be required
pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant thereto.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Property Trustee with
each national stock exchange, the Nasdaq National Market or
such other interdealer quotation system or self-regulatory
organization upon which the Trust Securities are listed or
traded, with the Commission and with the Depositor.
36
SECTION 8.15. REPORTS TO THE PROPERTY TRUSTEE.
The Depositor and the Administrative Trustees on behalf of
the Trust shall provide to the Property Trustee such documents,
reports and information as required by Section 314 of the
Trust Indenture Act (if any) and the compliance certificate
required by Section 314(a) of the Trust Indenture Act in the
form, in the manner and at the times required by Section 314 of
the Trust Indenture Act.
SECTION 8.16. EVIDENCE OF COMPLIANCE WITH CONDITIONS
PRECEDENT.
Each of the Depositor and the Administrative Trustees on
behalf of the Trust shall provide to the Property Trustee such
evidence of compliance with any conditions precedent, if
any, provided for in this Trust Agreement that relate to any of
the matters set forth in Section 314 (c) of the Trust Indenture
Act. Any certificate or opinion required to be given by an
officer pursuant to Section 314(c)(1) of the Trust Indenture Act
shall be given in the form of an Officers' Certificate.
SECTION 8.17. NUMBER OF TRUSTEES.
(a) The number of Trustees shall be five, provided that
the Holder of all of the Common Securities by written instrument
may increase or decrease the number of Administrative Trustees.
The Property Trustee and the Delaware Trustee may be the same
Person.
(b) If a Trustee ceases to hold office for any reason and
the number of Administrative Trustees is not reduced pursuant to
Section 8.17(a), or if the number of Trustees is increased
pursuant to Section 8.17(a), a vacancy shall occur. The vacancy
shall be filled with a Trustee appointed in accordance with
Section 8.10.
(c) The death, resignation, retirement, removal,
bankruptcy, incompetence or incapacity to perform the duties of
a Trustee shall not operate to annul the Trust. Whenever a
vacancy in the number of Administrative Trustees shall occur,
until such vacancy is filled by the appointment of an
Administrative Trustee in accordance with Section 8.10, the
Administrative Trustees in office, regardless of their number
(and notwithstanding any other provision of this Agreement),
shall have all the powers granted to the Administrative Trustees
and shall discharge all the duties imposed upon the
Administrative Trustees by this Trust Agreement.
SECTION 8.18. DELEGATION OF POWER.
(a) Any Administrative Trustee may, by power of attorney
consistent with applicable law, delegate to any other natural
person over the age of 21 his or her power for the purpose of
executing any documents contemplated in Section 2.7(a),
including any registration statement or amendment thereto filed
with the Commission, or making any other governmental filing;
and
(b) The Administrative Trustees shall have power to
delegate from time to time to such of their number or to the
Depositor the doing of such things and the execution of such
instruments either in the name of the Trust or the names of the
Administrative Trustees or otherwise as the Administrative
Trustees may deem expedient, to the extent such delegation is
not prohibited by applicable law or contrary to the provisions
of this Trust Agreement, as set forth herein.
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ARTICLE IX
TERMINATION, LIQUIDATION AND MERGER
SECTION 9.1. TERMINATION UPON EXPIRATION DATE.
Unless earlier dissolved, the Trust shall automatically
dissolve on December 31, 2029 (the "Expiration Date"), following
the distribution of the Trust Property in accordance with
Section 9.4.
SECTION 9.2. EARLY TERMINATION.
The first to occur of any of the following events is an
"Early Termination Event":
(a) the occurrence of a Bankruptcy Event in respect of, or
the dissolution or liquidation of, the Depositor;
(b) the written direction to the Property Trustee from the
Depositor at any time to dissolve the Trust and distribute
Debentures to Securityholders in exchange for a Like Amount of
the Trust Securities (which direction is optional and wholly
within the discretion of the Depositor);
(c) the redemption of all of the Preferred Securities in
connection with the redemption of all the Debentures; and
(d) the entry of an order for dissolution of the Trust by
a court of competent jurisdiction.
SECTION 9.3. TERMINATION.
The respective obligations and responsibilities of the
Trustees and the Trust created and continued hereby shall
terminate upon the latest to occur of the following: (a) the
distribution by the Property Trustee to Securityholders upon the
liquidation of the Trust pursuant to Section 9.4, or upon the
redemption of all of the Trust Securities pursuant to Section
4.2, of all amounts required to be distributed hereunder upon
the final payment of the Trust Securities; (b) the payment of
any expenses owed by the Trust; (c) the discharge of all
administrative duties of the Administrative Trustees, including
the performance of any tax reporting obligations with respect
to the Trust or the Securityholders and (d) the filing of a
certificate of cancellation with the Delaware Secretary of State
pursuant to Section 3810 of the Delaware Business Trust Act by
the Property Trustee.
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 Trust shall be liquidated by the Trustees as expeditiously
as the Trustees determine to be possible by distributing, after
satisfaction of liabilities to creditors of the Trust as
provided by applicable law, to each Securityholder a Like Amount
of Debentures, subject to Section 9.4(d). Notice of liquidation
shall be given by the Property Trustee by first-class mail,
postage prepaid mailed not later than 30 nor more than 60 days
prior to the Liquidation Date to each Holder of Trust Securities
at such Holder's address appearing in the Securities Register.
All notices of liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date,
the Trust Securities 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 Debentures; and
38
(iii) provide such information with respect to the
mechanics by which Holders may exchange Trust Securities
Certificates for certificates representing the Like Amount
of the Debentures, or if Section 9.4(d) applies receive a
Liquidation Distribution, as the Administrative
Trustees or the Property Trustee shall deem appropriate.
(b) Except where Section 9.2(c) or 9.4(d) applies, in
order to effect the liquidation of the Trust and distribution of
the Debentures to Securityholders, the Administrative Trustees
shall establish a record date for such distribution (which shall
be not more than 45 days prior to the Liquidation Date) and,
either itself acting as exchange agent or through the
appointment of a separate exchange agent, shall establish such
procedures as it shall deem appropriate to effect the
distribution of Debentures in exchange for the Outstanding Trust
Securities Certificates.
(c) Except where Section 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) certificates representing a Like
Amount of Debentures will be issued to holders of Trust
Securities Certificates, upon surrender of such certificates to
the Administrative Trustees or their agent for exchange, (iii)
the Depositor shall use its best efforts to have the Debentures
listed on the Nasdaq National Market or on such other exchange,
interdealer quotation system or self-regulatory organization as
the Preferred Securities are then listed, (iv) any Trust
Securities Certificates not so surrendered for exchange will be
deemed to represent a Like Amount of Debentures, accruing
interest at the rate provided for in the Debentures from the
last Distribution Date on which a Distribution was made on the
related Trust Securities until such Certificates are so
surrendered (and until such Certificates are so surrendered, no
payments of interest or principal will be made to Holders of
Debentures represented by such Certificates) and (v) all rights
of Securityholders holding Trust Securities will cease, except
the right of such Securityholders to receive a Like Amount of
Debentures upon surrender of Trust Securities Certificates.
(d) In the event that, 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 Debentures in the manner provided
herein is determined by the Administrative Trustees not to be
practical, the Trust Property shall be liquidated, and the Trust
shall be dissolved, wound-up or terminated, by the
Administrative Trustees in such manner as the Administrative
Trustees determine. In such event, on the date of the
dissolution, winding-up or other termination of the Trust,
Securityholders will be entitled to receive out of the assets of
the Trust available for distribution to Securityholders, after
satisfaction of liabilities to creditors of the Trust as
provided by applicable law, an amount equal to the Liquidation
Amount per Trust Security plus accumulated and unpaid
Distributions thereon to the date of payment (such amount
being the "Liquidation Distribution"). If, upon any such
dissolution, winding up or termination, the Liquidation
Distribution can be paid only in part because the Trust has
insufficient assets available to pay in full the aggregate
Liquidation Distribution, then, subject to the next succeeding
sentence, the amounts payable by the Trust on the Trust
Securities shall be paid on a pro rata basis (based upon
Liquidation Amounts). The holder of the Common Securities will
be entitled to receive Liquidation Distributions upon any such
dissolution, winding-up or termination pro rata (determined as
aforesaid) with Holders of Preferred Securities, except that, if
a Debenture Event of Default has occurred and is continuing, the
Holders of Preferred Securities shall have a priority over the
Holders of Common Securities.
SECTION 9.5. MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR
REPLACEMENTS OF THE TRUST.
The Trust may not merge with or into, consolidate,
amalgamate, or be replaced by, or convey, transfer or lease its
properties and assets substantially as an entirety to any
corporation or other body, except pursuant to this Section 9.5.
At the request of the Depositor, with the consent of the
Administrative Trustees and without the consent of the Holders
of the Preferred Securities, the Property Trustee or the
Delaware Trustee, the 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, that
(i) such successor entity either (a) expressly assumes all of
the obligations of the Trust with respect to the Preferred
Securities or (b) substitutes for the Preferred Securities other
securities having substantially the same terms as the Preferred
Securities (the "Successor Securities") so long as the Successor
Securities rank the same as the Preferred Securities rank in
priority with respect
39
to distributions and payments upon liquidation, redemption and
otherwise, (ii) the Depositor expressly appoints a trustee of
such successor entity possessing the same powers and duties as
the Property Trustee as the holder of the Debentures, (iii) the
Successor Securities are listed or traded, or any Successor
Securities will be listed upon notification of issuance, on any
national securities exchange or other organization on which the
Preferred Securities are then listed or traded, if any, (iv)
such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not cause the Preferred
Securities (including any Successor Securities) to be downgraded
by any nationally recognized statistical rating organization,
(v) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the
rights, preferences and privileges of the holders of the
Preferred Securities (including any Successor Securities) in any
material respect, (vi) such successor entity has a purpose
identical to that of the Trust, (vii) prior to such merger,
consolidation, amalgamation, replacement, conveyance, transfer
or lease, the Depositor has received an opinion of counsel to
the effect that (a) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not adversely
affect the rights, preferences and privileges of the holders of
the Preferred Securities (including any Successor Securities) in
any material respect, and (b) following such merger,
consolidation, amalgamation, replacement, conveyance, transfer
or lease, neither the Trust nor such successor entity will be
required to register as an investment company under the 1940 Act
and (viii) the Depositor or any permitted successor or assignee
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
Preferred Securities Guarantee. Notwithstanding the foregoing,
the 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 Trust or the
successor entity to be classified as other than a grantor trust
for United States federal income tax purposes.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. LIMITATION OF RIGHTS OF SECURITYHOLDERS.
The death or incapacity of any person having an interest,
beneficial or otherwise, in Trust Securities shall not operate
to terminate this Trust Agreement, nor entitle the legal
representatives or heirs of such person or any Securityholder
for such person, to claim an accounting, take any action or
bring any proceeding in any court for a partition or winding up
of the arrangements contemplated hereby, nor otherwise affect
the rights, obligations and liabilities of the parties hereto or
any of them.
SECTION 10.2. AMENDMENT.
(a) This Trust Agreement may be amended from time to time
by the Property Trustee, the Administrative Trustees and the
Delaware Trustee, without the consent of any Securityholders,
(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, which shall not
be inconsistent with the other provisions of this Trust
Agreement, 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 Trust will be classified for United States
federal income tax purposes as a grantor trust at all times that
any Trust Securities are outstanding or to ensure that the Trust
will not be required to register as an investment company under
the 1940 Act; provided, however, that in the case of clause (i),
such action shall not adversely affect in any material respect
the interests of any Securityholder, and any amendments of this
Trust Agreement shall become effective when notice thereof is
given to the Securityholders.
(b) Except as provided in Section 10.2(c) hereof, any
provision of this Trust Agreement may be amended by the Trustees
with (i) the consent of Trust Securityholders representing not
less than a majority (based upon
40
Liquidation Amounts) of the Trust Securities then Outstanding
and (ii) receipt by the Trustees of an opinion of its tax
advisors to the effect that such amendment or the exercise of
any power granted to the Trustees in accordance with such
amendment will not affect the Trust's status as a grantor trust
for United States federal income tax purposes or an opinion of
counsel that such amendment will not affect the Trust's
exemption from status of an investment company under the 1940
Act.
(c) In addition to and notwithstanding any other provision
in this Trust Agreement, without the consent of each affected
Securityholder (such consent being obtained in accordance
with Section 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 Securityholder to institute suit for the enforcement
of any such payment on or after such date; notwithstanding any
other provision herein, without the unanimous consent of the
Securityholders (such consent being obtained in accordance with
Section 6.3 or 6.6 hereof), this paragraph (c) of this Section
10.2 may not be amended.
(d) Notwithstanding any other provisions of this Trust
Agreement, no Trustee shall enter into or consent to any
amendment to this Trust Agreement which would cause the Trust to
fail or cease to qualify for the exemption from status of an
investment company under the 1940 Act or fail or cease to be
classified as a grantor trust for United States federal income
tax purposes.
(e) Notwithstanding anything in this Trust Agreement to
the contrary, without the consent of the Depositor, this Trust
Agreement may not be amended in a manner which imposes
any additional obligation on the Depositor.
(f) In the event that any amendment to this Trust
Agreement is made, the Administrative Trustees shall promptly
provide to the Depositor a copy of such amendment.
(g) Neither the Property Trustee nor the Delaware Trustee
shall be required to enter into any amendment to this Trust
Agreement which affects its own rights, duties or immunities
under this Trust Agreement. The Property Trustee shall be
entitled to receive an opinion of counsel and an Officers'
Certificate stating that any amendment to this Trust Agreement
is in compliance with this Trust Agreement.
SECTION 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 SECURITYHOLDERS, THE TRUST AND THE TRUSTEES WITH RESPECT
TO THIS TRUST AGREEMENT AND THE TRUST SECURITIES SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF DELAWARE.
SECTION 10.5. PAYMENTS DUE ON NON-BUSINESS DAY.
If the date fixed for any payment on any Trust Security
shall be a day that is not a Business Day, then such payment
need not be made on such date but may be made on the next
succeeding day that is a Business Day (except as otherwise
provided in Sections 4.1(a) and 4.2(d)), with the same force and
effect as though made on the date fixed for such payment, and
no interest shall accrue thereon for the period after such date.
41
SECTION 10.6. SUCCESSORS.
This Trust Agreement shall be binding upon and shall inure
to the benefit of any successor to the Depositor, the Trust or
the Relevant Trustee, including any successor by operation of
law. Except in connection with a consolidation, merger or sale
involving the Depositor that is permitted under Article Eight of
the Indenture and pursuant to which the assignee agrees in
writing to perform the Depositor's obligations hereunder, the
Depositor shall not assign its obligations hereunder.
SECTION 10.7. HEADINGS.
The Article and Section headings are for convenience only
and shall not affect the construction of this Trust Agreement.
SECTION 10.8. REPORTS, NOTICES AND DEMANDS.
Any report, notice, demand or other communication which by
any provision of this Trust Agreement is required or permitted
to be given or served to or upon any Securityholder or the
Depositor may be given or served in writing by deposit thereof,
first-class postage prepaid, in the United States mail, hand
delivery or facsimile transmission, in each case, addressed, (a)
in the case of a Preferred Securityholder, to such Preferred
Securityholder as such Securityholder's name and address may
appear on the Securities Register; and (b) in the case of the
Common Securityholder or the Depositor, to WSFS Financial
Corporation, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, facsimile no.: (▇▇▇) ▇▇▇-▇▇▇▇. Any
notice to Preferred Securityholders shall also be given to such
owners as have, within two years preceding the giving of such
notice, filed their names and addresses with the Property
Trustee for that purpose. Such notice, demand or other
communication to or upon a Securityholder shall be
deemed to have been sufficiently given or made, for all
purposes, upon hand delivery, mailing or transmission.
Any notice, demand or other communication which by any
provision of this Trust Agreement is required or permitted to be
given or served to or upon the Trust, the Property Trustee, the
Delaware Trustee or the Administrative Trustees shall be given
in writing addressed (until another address is published by the
Trust) as follows: (a) with respect to the Property Trustee to
Wilmington Trust Company, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇; (b) with respect to the Delaware Trustee, to
Wilmington Trust Company, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇; and (c) with respect to the Administrative
Trustees, to them at the address above for notices to the
Depositor, marked "Attention Administrative Trustees of WSFS
Capital Trust I." Such notice, demand or other communication to
or upon the Trust or the Property Trustee shall be deemed to
have been sufficiently given or made only upon actual receipt of
the writing by the Trust or the Property Trustee.
SECTION 10.9. AGREEMENT NOT TO PETITION.
Each of the Trustees and the Depositor agree for the
benefit of the Securityholders that, until at least one year and
one day after the Trust has been terminated in accordance with
Article IX, they shall not file, or join in the filing of, a
petition against the Trust under any Bankruptcy Laws or
otherwise join in the commencement of any proceeding against the
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 Securityholders, 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 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 stopped
and precluded therefrom and such other defenses, if any, as
counsel for the Trustee or the Trust may assert. The provisions
of this Section 10.9 shall survive the termination of this Trust
Agreement.
42
SECTION 10.10. TRUST INDENTURE ACT; CONFLICT WITH TRUST
INDENTURE ACT.
(a) This Trust Agreement is subject to the provisions of
the Trust Indenture Act that are required to be part of this
Trust Agreement and shall, to the extent applicable, be governed
by such provisions.
(b) The Property Trustee shall be the only Trustee which
is a trustee for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts
with another provision hereof which is required to be included
in this Trust Agreement by any of the provisions of the Trust
Indenture Act, such required provision shall control. If any
provision of this Trust Agreement modifies or excludes any
provision of the Trust Indenture Act which may be so modified or
excluded, the latter provision shall be deemed to apply to this
Trust Agreement as so modified or excluded, as the case may be.
(d) The application of the Trust Indenture Act to this
Trust Agreement shall not affect the nature of the Securities as
equity securities representing undivided beneficial interests in
the assets of the Trust.
SECTION 10.11. COUNTERPARTS.
This Trust Agreement may be executed in one or more
counterparts.
SECTION 10.12. ACCEPTANCE OF TERMS OF TRUST AGREEMENT,
PREFERRED SECURITIES GUARANTEE AND INDENTURE.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY
INTEREST THEREIN BY OR ON BEHALF OF A SECURITYHOLDER OR ANY
BENEFICIAL OWNER, WITHOUT ANY SIGNATURE OR FURTHER MANIFESTATION
OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE BY THE
SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN
SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS
TRUST AGREEMENT AND AGREEMENT TO THE SUBORDINATION PROVISIONS
AND OTHER TERMS OF THE PREFERRED SECURITIES GUARANTEE AND THE
INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST, SUCH
SECURITYHOLDER AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF
THIS TRUST AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE
AS BETWEEN THE TRUST AND SUCH SECURITYHOLDER AND SUCH OTHERS.
43
IN WITNESS WHEREOF, the undersigned have caused these
present to be executed as of the day and year first above
written.
WSFS FINANCIAL CORPORATION
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Chairman and President
WILMINGTON TRUST COMPANY,
as Property Trustee
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Vice President
WILMINGTON TRUST COMPANY,
as Delaware Trustee
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Vice President
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇,
as Administrative Trustee
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇,
as Administrative Trustee
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
as Administrative Trustee
44
EXHIBIT A
CERTIFICATE OF TRUST OF WSFS CAPITAL TRUST I
This Certificate of Trust of WSFS Capital Trust I (the
"Trust") is being duly executed and filed on behalf of the Trust
by the undersigned, as trustee, to form a business trust under
the Delaware Business Trust Act (12 Del. C. Section 3801, et.
seq.) (the "Act").
1. Name. The name of the business trust is WSFS Capital
Trust I
2. Delaware Trustee. The name and business address of
the trustee of the Trust in the State of Delaware are Wilmington
Trust Company, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇, Attn: Corporate Trust Department.
3. Effective Date. This Certificate of Trust shall be
effective upon filing.
IN WITNESS WHEREOF, the undersigned, has duly executed this
Certificate of Trust in
accordance with Section 3811(a)(1) of the Act.
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Trustee
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Assistant Vice President
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, as Trustee
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇, as Trustee
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as Trustee
45
EXHIBIT B
LETTER OF REPRESENTATIONS
(To be Completed by Issuer and Agent)
WSFS CAPITAL TRUST I
WILMINGTON TRUST COMPANY
November ___, 1998
Attention: General Counsel's Office
THE DEPOSITORY TRUST COMPANY
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Re: WSFS Capital I Floating Rate Cumulative Trust
Preferred Securities (CUSIP #929327 AA 2)
Ladies and Gentlemen:
This letter sets forth our understanding with respect to
certain matters relating to the above-referenced issue (the
"Securities"). Issuer is selling the Securities to Sandler
▇'▇▇▇▇▇ & Partners LP (the "Initial Purchaser") pursuant to an
Underwriting Agreement dated November 17, 1998 (the "Document").
Initial Purchaser will take delivery of the Securities through
The Depository Trust Company ("DTC"). Wilmington Trust Company
is acting as transfer agent, paying agent and registrar with
respect to the Securities (the "Agent").
To induce DTC to accept the Securities as eligible for
deposit at DTC, and to act in accordance with its Rules with
respect to the Securities, the Issuer and Agent make the
following representations to DTC:
1. Prior to the closing on the Securities on November 20,
1998, there shall be deposited with DTC one Security Certificate
registered in the name of DTC's Preferred Securities nominee,
Cede & Co., for each of the Securities with the offering value
set forth on Schedule A hereto, the total of which represents
100% of the offering value of such Securities. If, however,
the offering value of any Security exceeds $200 million, one
certificate will be issued with respect to each $200 million of
offering value and an additional certificate will be issued with
respect to any remaining offering value. Each Security
certificate shall bear the following legend:
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New
York corporation ("DTC"), to Issuer or its agent for
registration of transfer, exchange, or payment, and
any certificate issued is registered in the name of
Cede & Co. or in such other name as is requested by
an authorized representative of DTC (and any payment
is made to Cede & Co. or to such other entity as is
requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as
the registered owner hereof, Cede & Co., has an interest
herein.
46
If the Securities will be held by Agent as custodian for DTC,
such Security certificate shall remain in Agent's custody
pursuant to the provisions of the FAST Balance Certificate
Agreement currently in effect between Agent and DTC.
2. Issuer: (a) understands that DTC has no obligation to,
and will not, communicate to its Participants or to any person
having an interest in the Securities any information contained
in the Security certificate(s); and (b) acknowledges that
neither DTC's Participants nor any person having an interest in
the Securities shall be deemed to have notice of the provisions
of the Security certificate(s) by virtue of submission of such
certificate(s) to DTC.
3. In the event of any solicitation of consents from or
voting by holders of the Securities, Issuer or Agent shall
establish a record date for such purposes (with no provision for
revocation of consents or votes by subsequent holders) and shall
send notice of such record date to DTC not less than 15 calendar
days in advance of such record date. Notices to DTC pursuant
to this Paragraph by telecopy shall be sent to DTC's
Reorganization Department at (▇▇▇) ▇▇▇-▇▇▇▇ or (▇▇▇) ▇▇▇-▇▇▇▇,
and receipt of such notices shall be confirmed by telephoning
(▇▇▇) ▇▇▇-▇▇▇▇. Notices to DTC pursuant to this Paragraph by
mail or by any other means shall be sent to DTC's Reorganization
Department as indicated in Paragraph 7.
4. In the event of a stock split, recapitalization,
conversion, or any other similar transaction resulting in the
cancellation of all or any part of the Securities represented
thereby, the Agent shall send DTC a notice of such event as soon
as practicable, but in no event less than five business days
prior to the effective date of such event.
5. In the event of a full or partial redemption, Issuer
or Agent shall send a notice to DTC specifying: (a) the amount
of the redemption or refunding; (b) in the case of a refunding,
the maturity date(s) established under the refunding; and (c)
the date such notice is to be distributed to Security holders or
published (the "Publication Date"). Such notice shall be sent
to DTC by a secure means (e.g., legible telecopy, registered or
certified mail, overnight delivery) in a timely manner designed
to assure that such notice is in DTC's possession no later than
the close of business on the business day before or, if
possible, two business days before the Publication Date. Issuer
or Agent shall forward such notice either in a separate secure
transmission for multiple CUSIP numbers (if applicable) which
includes a manifest or list of each CUSIP number submitted in
the transmission. (The party sending such notice shall have a
method to verify subsequently the use of such means and the
timeliness of such notice.) The Publication Date shall be not
less than 30 days nor more than 60 days prior to the redemption
date or, in the case of an advance refunding, the date that the
proceeds are deposited in escrow. Notices to DTC pursuant to
this Paragraph by telecopy shall be sent to DTC's Call
Notification Department at (▇▇▇) ▇▇▇-▇▇▇▇ or (▇▇▇) ▇▇▇-▇▇▇▇. If
the party sending the notice does not receive a telecopy receipt
from DTC confirming that the notice has been received, such
party shall telephone (▇▇▇) ▇▇▇-▇▇▇▇. Notices to DTC pursuant to
this Paragraph by mail or by any other means shall be sent to:
Manager; Call Notification Department
The Depository Trust Company
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
6. In the event of an offering or issuance of rights
with respect to the Securities outstanding, Agent shall send
DTC's Dividend and Reorganization Departments a notice
specifying: (a) the amount of and conditions, if any, applicable
to such rights offering or issuance; (b) any applicable
expiration or deadline date, or any date by which any action on
the part of the holders of such Securities is required; and (c)
the Publication Date of such notice.
The Publication Date will be as soon as practicable after
the announcement by the Company of any such offering or issuance
of rights with respect to the Securities represented
thereby. DTC requires that the Publication Date be not less
than 30 days nor more than 60 days prior to the related payment
date, or issuance date, respectively.
47
Notices to DTC pursuant to this Paragraph by telecopy shall
be sent to DTC's Dividend Department at (▇▇▇) ▇▇▇-▇▇▇▇, and
receipt of such notices shall be confirmed by telephoning
(▇▇▇) ▇▇▇-▇▇▇▇. Notices to DTC pursuant to the above by mail or
by any other means shall be sent to:
Supervisor, Stock Dividends
Dividend Department
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Notices to DTC pursuant to this Paragraph by telecopy shall
be sent to DTC's Reorganization Department a (▇▇▇▇) ▇▇▇-▇▇▇▇,
and receipt of such fax shall be confirmed by telephoning (212)
709- 1063. Notices to DTC pursuant to the above by mail or by
any other means shall be sent to:
Supervisor, Rights Offerings
Reorganization ▇▇▇▇▇▇▇▇▇▇
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇; ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
7. In the event of any invitation to tender the
Securities (including mandatory tenders, exchanges, and capital
changes), notice by Issuer or Agent to Security holders
specifying the terms of the tender and the Publication Date of
such notice shall be sent to DTC by a secure means in the manner
set forth in Paragraph 5. Notices to DTC pursuant to this
Paragraph and notices of other corporate actions by telecopy
shall be sent to DTC's Reorganization Department at (212)
709-1093 or (▇▇▇) ▇▇▇-▇▇▇▇ and receipt of such notice shall be
confirmed by telephoning (▇▇▇) ▇▇▇-▇▇▇▇. Notices to DTC
pursuant to the above by mail or any other means shall be sent
to:
Manager, Reorganization Department
Reorganization Window
The Depository Trust Company
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
8. All notices and payment advices sent to DTC shall
contain the CUSIP number of the Securities (listed on Schedule A
hereto) and the accompanying description of the Securities,
which, as of the date of this letter, is "WSFS Capital Trust I
Floating Rate Cumulative Trust Preferred Securities.
9. Issuer or Agent shall provide written notice of
dividend payment information to a standard dividend announcement
service subscribed to by DTC as soon as the information is
available. In the event that no such service exists, Issuer or
Agent shall provide such notice directly to DTC electronically,
as previously arranged by Issuer or Agent and DTC, as soon as
the payment information is available. If electronic
transmission has not been arranged, absent any other
arrangements between Issuer or Agent and DTC, such information
should be sent by telecopy to DTC's Dividend Department at (212)
709-1723 or (212) 709- 1686, and receipt of such notices shall
be confirmed by telephoning (▇▇▇▇) ▇▇▇-▇▇▇▇. Notice to DTC
pursuant to the above by mail or by any other means shall be
sent to:
Manager; Announcements
Dividend Department
The Depository Trust Company
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
48
After establishing the amount of payment to be made on the
Securities in question, Issuer or Agent will notify DTC's
Dividend Department of the payment and payment date preferably
five, but not less than two, business days prior to the
effective date of such transaction.
10. Issuer or Agent shall provide CUSIP-level detail for
dividend payments to DTC no later than noon (Eastern Time) on
the payment date.
11. Dividend payments and cash distributions shall be
received by Cede & Co. as nominee of DTC, or its registered
assigns, in same-day funds no later than 2:30 p.m. (Eastern
Time) on each payment date. Absent any other arrangements
between Issuer or Agent and DTC, such funds shall be wired as
follows:
The Chase Manhattan Bank
ABA # 021 000 021
For credit to a/c Cede & Co.
c/o The Depository Trust Company
Dividend Deposit Account # 066-026776
12. Redemption payments shall be received by Cede & Co.,
as nominee of DTC, or its registered assigns, in same-day funds
no later than 2:30 p.m. (Eastern Time) on payment date.
Absent any other arrangements between Agent and DTC, such funds
shall be wired as follows:
The Chase Manhattan Bank
ABA #021 000 021
For credit to a/c Cede & Co.
c/o The Depository Trust Company
Redemption Deposit Account # 066-027306
13. Reorganization payments resulting from corporate
actions (such as tender offers or mergers) shall be received by
Cede & Co., as nominee of DTC, or its registered assigns in
same- day funds no later than 2:30 p.m. (Eastern Time) on
payment date. Absent any other arrangements between Agent and
DTC, Such funds shall be wired as follows:
The Chase Manhattan Bank
ABA # 021 000 021
For credit to a/c Cede & Co.
c/o The Depository Trust Company
Reorganization Deposit Account # 066-027608
14. DTC may direct Issuer or Agent to use any other number
or address as the number or address to which notices or payments
of dividends, distributions, or redemption proceeds may
be sent.
15. In the event of a redemption, acceleration, or any
other similar transaction (e.g., tender made and accepted in
response to Issuer's or Agent's invitation) necessitating a
reduction in the aggregate principal amount of Securities
outstanding or an advance refunding of part of the Securities
outstanding, DTC, in its discretion: (a) may request Issuer or
Agent to issue and authenticate a new Security Certificate; or
(b) may make an appropriate notation on the Security Certificate
indicating the date and amount of such reduction in the number
of Securities outstanding, except in the case of final
redemption, in which case the certificate will be presented
to Issuer or Agent prior to payment, if required.
49
16. In the event that Issuer determines that beneficial
owners of Securities shall be able to obtain certificated
Securities, Issuer or Agent shall notify DTC of the availability
of certificates. In such event, Issuer or Agent shall issue,
transfer, and exchange certificates in appropriate amounts, as
required by DTC and others.
17. DTC may discontinue providing its services as
securities depositary with respect to the Securities at any time
by giving reasonable notice to the Issuer or Agent (at which
time DTC will confirm with Issuer or Agent the aggregate
principal amount of Securities outstanding). Under such
circumstances, at DTC's request Issuer and Agent shall cooperate
fully with DTC by taking appropriate action to make available
one or more separate certificates evidencing Securities to any
DTC Participant having Securities credited to its DTC accounts.
18. Nothing herein shall be deemed to require Agent to
advance funds on behalf of Issuer.
19. This Letter of Representations may be executed in any
number of counterparts, each of which when so executed shall be
deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
20. This Letter of Representations is governed by, and
shall be construed in accordance with, the laws of the State of
New York.
21. The following riders, attached hereto, are hereby
incorporated into this Letter of Representations.
Very truly yours,
WSFS CAPITAL TRUST I
(as Issuer)
By:______________________
WILMINGTON TRUST COMPANY
as Trustee and Agent
By:______________________
Name:
Title:
Received and Accepted:
THE DEPOSITORY TRUST COMPANY
By:_________________________
Authorized Officer
50
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE
THIS SECURITY IS NOT A SAVINGS ACCOUNT, DEPOSIT OR OTHER
OBLIGATION OF A BANK, AND IS NOT INSURED BY THE
FEDERAL DEPOSIT INSURANCE CORPORATION
CERTIFICATE NUMBER ___ NUMBER OF COMMON SECURITIES _____
CERTIFICATE EVIDENCING COMMON SECURITIES
OF
WSFS CAPITAL TRUST I
FLOATING RATE COMMON SECURITIES
(LIQUIDATION AMOUNT $1,000 PER COMMON SECURITY)
WSFS Capital Trust I, a statutory business trust formed
under the laws of the State of Delaware (the "Trust"), hereby
certifies that WSFS Financial Corporation (the "Holder") is the
registered owner of _____________________________________
(_____) common securities of the Trust representing beneficial
interests of the Trust and designated the Floating Rate Common
Securities (liquidation amount $1,000 per Common Security) (the
"Common Securities"). In accordance with Section 5.10 of the
Trust Agreement (as defined below) the Common Securities
are not transferable and any attempted transfer hereof shall be
void. The designations, rights, privileges, restrictions,
preferences and other terms and provisions of the Common
Securities are set forth in, and this certificate and the Common
Securities represented hereby are issued and shall in all
respects be subject to the terms and provisions of, the Amended
and Restated Trust Agreement of the Trust dated as of November
20, 1998, as the same may be amended from time to time (the
"Trust Agreement") including the designation of the terms of the
Common Securities as set forth therein. The Holder is entitled
to the benefit of the Common Securities Guarantee to
the extent provided therein. The Trust will furnish a copy of
the Trust Agreement and the Common Securities Guarantee
Agreement to the Holder without charge upon written request to
the Trust at its principal place of business or registered
office.
By acceptance, the Holder agrees to treat, for federal
income tax purposes, the Debentures as indebtedness and the
Common Securities as evidence of indirect beneficial ownership
in the Debentures.
Unless the Property Trustee's Certificate of Authentication
hereon has been properly executed, these Common Securities shall
not be entitled to any benefit under the Trust Agreement or be
valid or obligatory for any purpose.
51
Upon receipt of this certificate, the Holder is bound by
the Trust Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees of
the Trust has executed this certificate this ____ day of
________, 1998.
WSFS CAPITAL TRUST I
By:________________________
Name:
Administrative Trustee
52
EXHIBIT D
AGREEMENT AS TO EXPENSES AND LIABILITIES
Agreement dated as of November 20, 1998, between WSFS
Financial Corporation, a Delaware corporation ("WSFS"), and WSFS
Capital Trust I, a Delaware business trust (the "Trust").
WHEREAS, the Trust intends to issue its Common Securities
(the "Common Securities") to and receive Debentures from WSFS
and to issue and sell Floating Rate Cumulative Trust Preferred
Securities (the "Preferred Securities") with such powers,
preferences and special rights and restrictions as are set forth
in the Amended and Restated Trust Agreement of the Trust dated
as of November 20, 1998 as the same may be amended from time to
time (the "Trust Agreement");
WHEREAS, WSFS will directly or indirectly own all of the
Common Securities of the Trust and will issue the Debentures;
NOW, THEREFORE, in consideration of the purchase by each
holder of the Preferred Securities, which purchase WSFS hereby
agrees shall benefit WSFS and which purchase WSFS acknowledges
will be made in reliance upon the execution and delivery of this
Agreement, WSFS and Trust hereby agree as follows:
ARTICLE I
SECTION 1.1. GUARANTEE BY WSFS.
Subject to the terms and conditions hereof, WSFS hereby
irrevocably and unconditionally guarantees to each person or
entity to whom the Trust is now or hereafter becomes indebted or
liable (the "Beneficiaries") the full payment, when and as due,
of any and all Obligations (as hereinafter defined) to such
Beneficiaries. As used herein, "Obligations" means any costs,
expenses or liabilities of the Trust, other than obligations of
the Trust to pay to holders of any Preferred Securities or other
similar interests in the Trust the amounts due such holders
pursuant to the terms of the Preferred Securities or such other
similar interests, as the case may be. This Agreement is
intended to be for the benefit of, and to be enforceable by, all
such Beneficiaries, whether or not such Beneficiaries have
received notice hereof.
SECTION 1.2. TERM OF AGREEMENT.
This Agreement shall terminate and be of no further force
and effect upon the later of (a) the date on which full payment
has been made of all amounts payable to all holders of all the
Preferred Securities (whether upon redemption, liquidation,
exchange or otherwise) and (b) the date on which there are no
Beneficiaries remaining; provided, however, that this Agreement
shall continue to be effective or shall be reinstated, as the
case may be, if at any time any holder of Preferred Securities
or any Beneficiary must restore payment of any sums paid under
the Preferred Securities, under any Obligation, under the
Preferred Securities Guarantee Agreement dated the date hereof
by WSFS and Wilmington Trust Company, as guarantee trustee or
under this Agreement for any reason whatsoever. This Agreement
is continuing, irrevocable, unconditional and absolute.
53
SECTION 1.3. WAIVER OF NOTICE.
WSFS hereby waives notice of acceptance of this Agreement
and of any Obligation to which it applies or may apply, and WSFS
hereby waives presentment, demand for payment, protest, notice
of nonpayment, notice of dishonor, notice of redemption and all
other notices and demands.
SECTION 1.4. NO IMPAIRMENT.
The obligations, covenants, agreements and duties of WSFS
under this Agreement shall in no way be affected or impaired by
reason of the happening from time to time of any of the
following:
(a) the extension of time for the payment by the Trust of
all or any portion of the Obligations or for the performance of
any other obligation under, arising out of, or in connection
with, the obligations;
(b) any failure, omission, delay or lack of diligence on
the part of the Beneficiaries to enforce, assert or exercise any
right, privilege, power or remedy conferred on the Beneficiaries
with respect to the Obligations or any action on the part of the
Trust granting indulgence or extension of any kind; or
(c) the voluntary or involuntary liquidation, dissolution,
sale of any collateral, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization,
arrangement, composition or readjustment of debt of, or other
similar proceedings affecting, the Trust or any of the assets of
the Trust.
There shall be no obligation of the Beneficiaries to give notice
to, or obtain the consent of, WSFS with respect to the happening
of any of the foregoing.
SECTION 1.5. ENFORCEMENT.
A Beneficiary may enforce this Agreement directly against
WSFS and WSFS waives any right or remedy to require that any
action be brought against the Trust or any other person or
entity before proceeding against WSFS.
SECTION 1.6. SUBROGATION.
WSFS shall be subrogated to all (if any) rights of the
Trust in respect of any amounts paid to the Beneficiaries by
WSFS under this Agreement; provided, however, that WSFS shall
not (except to the extent required by mandatory provisions of
law) be entitled to enforce or exercise any rights which it may
acquire by way of subrogation or any indemnity, reimbursement or
other agreement, in all cases as a result of payment under this
Agreement, if, at the time of any such payment, any amounts are
due and unpaid under this Agreement.
ARTICLE II
SECTION 2.1. BINDING EFFECT.
All guarantees and agreements contained in this Agreement
shall bind the successors, assigns, receivers, trustees and
representatives of WSFS and shall inure to the benefit of the
Beneficiaries.
54
SECTION 2.2. AMENDMENT.
So long as there remains any Beneficiary or any Preferred
Securities of any series are outstanding, this Agreement shall
not be modified or amended in any manner adverse to such
Beneficiary or to the holders of the Preferred Securities.
SECTION 2.3. NOTICES.
Any notice, request or other communication required or
permitted to be given hereunder shall be given in writing by
delivering the same against receipt therefor by facsimile
transmission (confirmed by mail), telex or by registered or
certified mail, addressed as follows (and if so given, shall be
deemed given when mailed or upon receipt of an answer-back, if
sent by telex):
WSFS Capital Trust I
c/o WSFS Financial Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
WSFS Financial Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
SECTION 2.4. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE.
This Agreement is executed as of the day and year first
above written.
WSFS FINANCIAL CORPORATION
By:_________________________
Name:
Title:
WSFS CAPITAL TRUST I
By:_________________________
Name:
Title:
55
EXHIBIT E
This Preferred Security is a Global Certificate within the
meaning of the Trust Agreement hereinafter referred to and is
registered in the name of The Depository Trust Company (the
"Depositary") or a nominee of the Depositary. This Preferred
Security is exchangeable for Preferred Securities registered in
the name of a person other than the Depositary or its nominee
only in the limited circumstances described in the Trust
Agreement and no transfer of this Preferred Security (other than
a transfer of this Preferred Security as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the
Depositary) may be registered except in limited circumstances.
Unless this Preferred Security is presented by an
authorized representative of The Depository Trust Company (55
Water Street, New York) to WSFS Capital Trust I or its agent for
registration of transfer, exchange or payment, and any Preferred
Security issued is registered in the name of Cede & Co. or such
other name as requested by an authorized representative of The
Depository Trust Company and any payment hereon is made to Cede
& Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY A PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
THIS SECURITY IS NOT A SAVINGS ACCOUNT, DEPOSIT ACCOUNT OR
OTHER OBLIGATION OF A BANK AND IS NOT INSURED BY THE FEDERAL
DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY.
CERTIFICATE NUMBER NUMBER OF TRUST PREFERRED SECURITIES
P-________
CUSIP NO. 929327 AA 2
CERTIFICATE EVIDENCING PREFERRED SECURITIES
OF
WSFS CAPITAL TRUST I
FLOATING RATE CUMULATIVE TRUST PREFERRED SECURITIES
(LIQUIDATION AMOUNT $1,000 PER TRUST PREFERRED SECURITY)
WSFS Capital Trust I, a statutory business trust formed
under the laws of the State of Delaware (the "Trust"), hereby
certifies that Cede & Co. (the "Holder") is the registered owner
of Fifty Thousand (50,000) preferred securities of the Trust
representing an undivided beneficial interest in the assets of
the Trust and designated the Floating Rate Cumulative Trust
Preferred Securities (liquidation amount $1,000 per Trust
Preferred Security) (the "Trust Preferred Securities"). The
Trust Preferred Securities are transferable on the books and
records of the Trust, in person or by a duly authorized
attorney, upon surrender of this certificate duly endorsed
and in proper form for transfer as provided in Section 5.4 of
the Trust Agreement (as defined below). The designations,
rights, privileges, restrictions, preferences and other terms
and provisions of the Trust Preferred Securities are set forth
in, and this certificate and the Trust Preferred Securities
represented hereby are issued and shall in all respects be
subject to the terms and provisions of, the Amended and Restated
Trust Agreement of the Trust dated as of November 20, 1998, as
the same may be amended from time to time (the "Trust
Agreement") including the designation of the terms of Trust
Preferred Securities as set forth therein. The Holder is
entitled to the benefits of the Trust Preferred Securities
Guarantee Agreement entered into by WSFS Financial Corporation,
a Delaware corporation, and Wilmington Trust Company,
as guarantee trustee, dated as of November 20, 1998, (the "Trust
Preferred Securities Guarantee"), to the extent provided
therein. The Trust will furnish a copy of the Trust Agreement
and the Trust Preferred Securities Guarantee to the Holder
without charge upon written request to the Trust at its
principal place of business or registered office.
Unless the Property Trustee's Certificate of Authentication
hereon ha been properly executed, these Trust Preferred
Securities shall not be entitled to any benefit under the Trust
Agreement or be valid or obligatory for any purpose.
56
Upon receipt of this certificate, the Holder is bound by
the Trust Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees of
the Trust has executed this certificate this 20th day of
November, 1998.
WSFS CAPITAL TRUST I
By: ________________________
Name:
Administrative Trustee
57
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Trust Preferred Securities referred to
in the within-mentioned Trust Agreement.
WILMINGTON TRUST COMPANY,
as Property Trustee
Dated:______________,____ By:_________________________
Authorized Signatory
58
ASSIGNMENT
For Value Received, the undersigned assigns and transfers
this Preferred Security to:
________________________________________________________________
________________________________________________________________
(Insert assignee's social security or tax identification number)
________________________________________________________________
________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints ______________________________________
______________________________________
______________________________________
agent to transfer this Preferred Security Certificate on the
books of the 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.