EXHIBIT 4.2
UNITED BANCORP CAPITAL TRUST I
AMENDED AND RESTATED TRUST AGREEMENT
AMONG
UNITED BANCORPORATION OF ALABAMA, INC., AS DEPOSITOR,
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, AS PROPERTY TRUSTEE,
▇▇▇▇▇ FARGO DELAWARE TRUST COMPANY, AS RESIDENT TRUSTEE,
AND
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
EFFECTIVE AS OF JUNE 27, 2002
TABLE OF CONTENTS
Page
ARTICLE I DEFINED TERMS..............................................................................2
Section 1.1 Definitions.......................................................................2
ARTICLE II ESTABLISHMENT OF THE TRUST................................................................11
Section 2.1 Name.............................................................................11
Section 2.2 Office of the Resident Trustee; Principal Place of Business of the Trust.........11
Section 2.3 Initial Contribution of Trust Property; Organizational Expenses..................11
Section 2.4 Issuance of the Trust Preferred Securities.......................................11
Section 2.5 Issuance of the Common Securities; Subscription and Purchase of Debentures.......11
Section 2.6 Declaration of Trust.............................................................12
Section 2.7 Authorization of Trustees to Enter into Certain Transactions.....................12
Section 2.8 Assets of Trust..................................................................15
Section 2.9 Title to Trust Property..........................................................15
ARTICLE III PAYMENT ACCOUNT...........................................................................16
Section 3.1 Payment Account..................................................................16
ARTICLE IV DISTRIBUTIONS; REDEMPTION.................................................................16
Section 4.1 Distributions....................................................................16
Section 4.2 Redemption.......................................................................18
Section 4.3 Subordination of Common Securities...............................................20
Section 4.4 Payment Procedures...............................................................21
Section 4.5 Tax Returns and Reports..........................................................21
Section 4.6 Payment of Taxes, Duties, etc. of the Trust......................................21
Section 4.7 Payments Under Indenture.........................................................22
ARTICLE V TRUST SECURITIES CERTIFICATES.............................................................22
Section 5.1 Initial Ownership................................................................22
Section 5.2 The Trust Securities Certificates................................................22
Section 5.3 Execution, Authentication and Delivery of Trust Securities Certificates..........22
Section 5.4 Registration of Transfer and Exchange of Trust Preferred Securities
Certificates.....................................................................23
Section 5.5 Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates...............27
Section 5.6 Person Deemed Securityholders....................................................28
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TABLE OF CONTENTS
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Section 5.7 Access to List of Securityholders' Names and Addresses...........................28
Section 5.8 Maintenance of Office or Agency..................................................28
Section 5.9 Appointment of Paying Agent......................................................28
Section 5.10 Ownership of Common Securities by Depositor......................................29
Section 5.11 Trust Securities Certificates....................................................29
Section 5.12 [Reserved.]......................................................................30
Section 5.13 Rights of Securityholders........................................................30
ARTICLE VI ACTS OF SECURITYHOLDERS; MEETINGS; VOTING.................................................31
Section 6.1 Limitations on Voting Rights.....................................................31
Section 6.2 Notice of Meetings...............................................................32
Section 6.3 Meetings of Holder/Holders of the Trust Preferred Securities.....................32
Section 6.4 Voting Rights....................................................................33
Section 6.5 Proxies, etc.....................................................................33
Section 6.6 Securityholder Action by Written Consent.........................................33
Section 6.7 Record Date for Voting and Other Purposes........................................33
Section 6.8 Acts of Securityholders..........................................................34
Section 6.9 Inspection of Records............................................................35
ARTICLE VII REPRESENTATIONS AND WARRANTIES............................................................35
Section 7.1 Representations and Warranties of the Bank and the Property Trustee..............35
Section 7.2 Representations and Warranties of the Delaware Bank and the Resident
Trustee..........................................................................36
Section 7.3 Representations and Warranties of Depositor......................................37
ARTICLE VIII TRUSTEES..................................................................................38
Section 8.1 Number of Trustees...............................................................38
Section 8.2 Certain Duties and Responsibilities..............................................38
Section 8.3 Certain Notices..................................................................40
Section 8.4 Certain Rights of the Property Trustee...........................................40
Section 8.5 Not Responsible for Recitals or Issuance of Securities...........................42
Section 8.6 May Hold Securities..............................................................42
Section 8.7 Compensation; Indemnity; Fees....................................................43
Section 8.8 Corporate Property Trustee Required; Eligibility of Trustees.....................43
Section 8.9 Conflicting Interests............................................................44
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TABLE OF CONTENTS
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Section 8.10 Co-Trustees and Separate Trustee.................................................44
Section 8.11 Resignation and Removal; Appointment of Successor................................46
Section 8.12 Acceptance of Appointment by Successor...........................................47
Section 8.13 Merger, Conversion, Consolidation or Succession to Business......................48
Section 8.14 Preferential Collection of Claims Against Depositor or Trust.....................48
Section 8.15 Reports by Property Trustee......................................................48
Section 8.16 Reports to the Property Trustee..................................................48
Section 8.17 Evidence of Compliance with Conditions Precedent.................................49
Section 8.18 Delegation of Power..............................................................49
Section 8.19 Voting...........................................................................49
ARTICLE IX TERMINATION, LIQUIDATION AND MERGER.......................................................49
Section 9.1 Termination Upon Expiration Date.................................................49
Section 9.2 Early Termination................................................................50
Section 9.3 Termination......................................................................50
Section 9.4 Liquidation......................................................................50
Section 9.5 Mergers, Consolidations, Amalgamations or Replacements of the Trust..............52
ARTICLE X MISCELLANEOUS PROVISIONS..................................................................53
Section 10.1 Limitation of Rights of Securityholders..........................................53
Section 10.2 Amendment........................................................................53
Section 10.3 Severability.....................................................................55
Section 10.4 Governing Law....................................................................55
Section 10.5 Payments Due on Non-Business Day.................................................55
Section 10.6 Successors.......................................................................56
Section 10.7 Headings.........................................................................56
Section 10.8 Reports, Notices and Demands.....................................................56
Section 10.9 Agreement not to Petition........................................................57
Section 10.10 Applicability of Trust Indenture Act; Conflict...................................57
Section 10.11 Acceptance of Terms of Trust Agreement, Guarantee and Indenture..................57
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TABLE OF CONTENTS
EXHIBITS
Exhibit A Form of Certificate of Trust of United Bancorp Capital Trust I
Exhibit B Form of Common Security Certificate
Exhibit C Form of Agreement as to Expenses and Liabilities
Exhibit D Form of Floating Rate Cumulative Trust Preferred Security Certificate
Exhibit E Form of Transferee Letter of Representations
Exhibit F Form of Transferor Letter of Representations
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AMENDED AND RESTATED
TRUST AGREEMENT
AMENDED AND RESTATED
TRUST AGREEMENT, effective as of June 27, 2002,
among (i) United Bancorporation of Alabama, Inc., a
Delaware corporation
(including any successors or assigns, the "Depositor"), (ii) ▇▇▇▇▇ Fargo Bank,
National Association, a national banking association with its principal place of
business in the State of
Delaware, as property trustee (the "Property Trustee"
and, in its separate individual capacity and not in its capacity as Property
Trustee, the "Bank"), (iii) ▇▇▇▇▇ Fargo
Delaware Trust Company with its
principal place of business in the State of
Delaware, as Resident Trustee (the
"Resident Trustee," and, in its separate individual capacity and not in its
capacity as Resident Trustee, the "
Delaware Bank") (iv) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III,
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, each of whose address is c/o United
Bancorporation of Alabama, Inc., P. O. Box ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇ as administrative trustees (each an "Administrative Trustee" and
together the "Administrative Trustees") (the Property Trustee, the Resident
Trustee and the Administrative Trustees referred to collectively as the
"Trustees"), and (v) the several Holders (as hereinafter defined).
RECITALS
WHEREAS, the Depositor, the Resident Trustee, and Administrative
Trustees, have heretofore duly declared and established a business trust
pursuant to the
Delaware Business Trust Act by the entering into of that certain
Trust Agreement, effective as of June 20, 2002 (the "Original
Trust Agreement"),
and by the execution and filing by the Resident Trustee and the Administrative
Trustees with the Secretary of State of the State of
Delaware of the Certificate
of Trust, filed on June 20, 2002, the form of which is attached as Exhibit A;
and
WHEREAS, the parties hereto desire to amend and restate the Original
Trust Agreement in its entirety as set forth herein to provide for, among other
things, (i) the issuance of the Common Securities (as defined herein) by the
Trust (as defined herein) to the Depositor; (ii) the issuance and sale of the
Trust Preferred Securities (as defined herein) by the Trust pursuant to the
Placement Agreement (as defined herein); (iii) the acquisition by the Trust from
the Depositor of all of the right, title and interest in the Debentures (as
defined herein); and (iv) the appointment or continuation, as applicable of the
Trustees;
NOW THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each party, for the benefit of the
other parties and for the benefit of the Securityholders (as defined herein),
hereby amends and restates the Original
Trust Agreement in its entirety and
agrees as follows:
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 I have the meanings
assigned to them in this Article I and include the plural as well as
the singular;
(b) all other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(c) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case
may be, of this
Trust Agreement; and
(d) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Trust Agreement as a whole and
not to any particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.8 hereof.
"Additional Amount" means, with respect to Trust Securities of a given
Liquidation Amount and/or a given period, the amount of Deferred Interest
accrued on interest in arrears and paid by the Depositor on a Like Amount of
Debentures for such period, but shall not include Additional Sums, if any.
"Additional Interest" has the meaning specified in Section 1.1 of the
Indenture.
"Additional Sums" has the meaning specified in Section 1.1 of the
Indenture.
"Administrative Trustee" means each of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III, ▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, solely in his or her capacity as
Administrative Trustee of the Trust continued hereunder and not in his or her
individual capacity, or such Administrative Trustee's successor in interest in
such capacity, or any successor administrative trustee appointed as herein
provided.
"Affiliate" means, with respect to a specified Person, (a) any Person
directly or indirectly owning, controlling or holding with power to vote 10% or
more of the outstanding voting securities or other ownership interests of the
specified Person, (b) any Person 10% or more of whose outstanding voting
securities or other ownership interests are directly or indirectly owned,
controlled or held with power to vote by the specified Person; (c) any Person
directly or indirectly controlling, controlled by, or under common control with
the specified Person; (d) a partnership in which the specified Person is a
general partner; (e) any officer or director of the specified Person; and (f) if
the specified Person is an individual, any entity of which the specified Person
is an officer, director or general partner.
"Authenticating Agent" means an authenticating agent with respect to
the Trust Preferred Securities appointed by the Property Trustee pursuant to
Section 5.3 hereof.
"Bank" has the meaning specified in the Preamble to this Trust
Agreement.
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"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having
jurisdiction in the premises adjudging such Person bankrupt or
insolvent, or approving as properly filed a petition seeking
liquidation or reorganization of or in respect of such Person under the
United States Bankruptcy Code of 1978, as amended, or any other similar
applicable federal or state law, and the continuance of any such decree
or order unvacated and unstayed for a period of 90 days; or the
commencement of an involuntary case under the United States Bankruptcy
Code of 1978, as amended, in respect of such Person, which shall
continue undismissed for a period of 90 days or entry of an order for
relief in such case; or the entry of a decree or order of a court
having jurisdiction in the premises for the appointment on the ground
of insolvency or bankruptcy of a receiver, custodian, liquidator,
trustee or assignee in bankruptcy or insolvency of such Person or of
its property, or for the winding up or liquidation of its affairs, and
such decree or order shall have remained in force unvacated and
unstayed for a period of 90 days; or
(b) the institution by such Person of proceedings to be
adjudicated a voluntary bankruptcy, or the consent by such Person to
the filing of a bankruptcy proceeding against it, or the filing by such
Person of a petition or answer or consent seeking liquidation or
reorganization under the United States Bankruptcy Code of 1978, as
amended, or other similar applicable Federal or State law, or the
consent by such Person to the filing of any such petition or to the
appointment on the ground of insolvency or bankruptcy of a receiver or
custodian or liquidator or trustee or assignee in bankruptcy or
insolvency of such Person or of its property, or a general assignment
by such Person for the benefit of creditors.
"Bankruptcy Laws" has the meaning specified in Section 10.9 hereof.
"Board Resolution" means a copy of a resolution certified by the
Secretary of the Depositor to have been duly adopted by the Depositor's Board of
Directors, or such committee of the Board of Directors or officers of the
Depositor to which authority to act on behalf of the Board of Directors has been
delegated, and to be in full force and effect on the date of such certification,
and delivered to the appropriate Trustee.
"Business Day" means a day other than a Saturday or Sunday, a day on
which banking institutions in Wilmington,
Delaware or Minneapolis, Minnesota are
authorized or required by law, executive order or regulation to remain closed,
or a day on which the Property Trustee's Corporate Trust Office or the Corporate
Trust Office of the Debenture Trustee are closed for business.
"Calculation Agent" has the meaning specified in Section 4.1(d).
"Certificate of Trust" means the certificate of trust filed with the
Secretary of State of the State of Delaware with respect to the Trust, as
amended or restated from time to time.
"Change in 1940 Act Law" shall have the meaning set forth in the
definition of "Investment Company Event."
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"Closing Date" means the date of execution and delivery of this Trust
Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act, or, if at any time after
the execution of this instrument such Commission is not existing and performing
the duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Securities Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached hereto as
Exhibit B.
"Common Security" means an undivided common beneficial interest in the
assets of the Trust, having a per share 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.
"Company" means United Bancorporation of Alabama, Inc., a Delaware
corporation and registered bank holding company under the Bank Holding Company
Act of 1956, as amended.
"Corporate Trust Office" means the office at which, at any particular
time, the corporate trust business of the Property Trustee or the Debenture
Trustee, as the case may be, shall be principally administered, which office at
the date hereof, in each such case, is c/o Wells Fargo Bank, National
Association, located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attn: Corporate Trust Administration.
"Debenture Event of Default" means an "Event of Default" as defined in
Section 7.1 of the Indenture.
"Debenture Redemption Date" means, with respect to any Debentures to be
redeemed under the Indenture, the date fixed for redemption under the Indenture.
"Debenture Tax Event" means a "Tax Event" as specified in Section 1.1
of the Indenture.
"Debenture Trustee" means ▇▇▇▇▇ Fargo Bank, National Association with
its principal place of business in the State of Delaware and any successor
thereto, acting not in its individual capacity but solely as trustee under the
Indenture.
"Debentures" means the Four Million One Hundred Twenty-Five Thousand
Dollars ($4,125,000) aggregate principal amount of the Floating Rate Junior
Subordinated Deferrable Interest Debentures due June 30, 2032, issued by the
Depositor pursuant to the Indenture.
"Deferred Interest" shall have the meaning set forth in Section 4.1 of
the Indenture.
"Definitive Trust Preferred Securities Certificates" means Trust
Preferred Securities Certificates issued in certificated, fully registered form
as provided in Section 5.11 hereof.
"Delaware Bank" has the meaning specified in the Preamble to this Trust
Agreement.
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"Delaware Business Trust Act" means the Delaware Business Trust Act, 12
Del.C. Section 3801, et seq, as it may be amended from time to time.
"Depositor" has the meaning specified in the Preamble to this Trust
Agreement.
"Distribution Date" has the meaning specified in Section 4.1(a) hereof.
"Distribution Period" has the meaning set forth in Section 4.1(a)
hereof.
"Distribution Reset Date" has the meaning set forth in Section 4.1(d)
hereof.
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.1 hereof.
"Early Termination Date" has the meaning specified in Section 9.2
hereof.
"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):
(c) the occurrence of a Debenture Event of Default; or
(d) default by the Trust in the payment of any Distribution
when it becomes due and payable, and continuation of such default for a
period of 30 days; or
(e) default by the Trust in the payment of any Redemption
Price of any Trust Security when it becomes due and payable; or
(f) default in the performance, or breach, in any material
respect, of any covenant or warranty of the Trustees in this Trust
Agreement (other than a covenant or warranty a default in the
performance of which or the breach of which is dealt with in clause (b)
or (c), above) and continuation of such default or breach for a period
of 60 days after there has been given, by registered or certified mail,
to the defaulting Trustee or Trustees by the Holders of at least 25% in
aggregate Liquidation Amount of the Outstanding Trust Preferred
Securities a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice
of Default" hereunder; or
(g) 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 or any
successor statute thereto, in each case as amended from time to time.
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"Expense Agreement" means the Agreement as to Expenses and Liabilities
between the Depositor and the Trust, substantially in the form attached hereto
as Exhibit C, as amended from time to time.
"Expiration Date" has the meaning specified in Section 9.1 hereof.
"Extended Interest Payment Period" has the meaning specified in Section
4.1 of the Indenture.
"Floating Distribution Rate" has the meaning specified in Section
4.1(b) hereof.
"Holder" or "Securityholder" means a Person in whose name a Trust
Security is, or Trust Securities are, registered in the Securities Register; any
such Person is a beneficial owner within the meaning of the Delaware Business
Trust Act.
"Indenture" means the Indenture, effective as of June 27, 2002, between
the Depositor and the Debenture Trustee, as trustee, as amended or supplemented
from time to time.
"Investment Company Act" means the Investment Company Act of 1940 or
any successor statute thereto, in each case as amended from time to time.
"Investment Company Event" means the receipt by the Trust and the
Depositor of an Opinion of Counsel, rendered by a law firm having a recognized
national securities law practice, to the effect that, as a result of the
occurrence of a change in law or regulation or a change in interpretation or
application of law or regulation by any legislative body, court, governmental
agency or regulatory authority (a "Change in 1940 Act Law"), the Trust is or
shall be considered an "investment company" that is required to be registered
under the Investment Company Act, which Change in 1940 Act Law becomes effective
on or after the date of original issuance of the Trust Preferred Securities
under this Trust Agreement; provided, however, that the Depositor or the
Administrative Trustees on behalf of the Trust shall have requested and received
such an Opinion of Counsel with regard to such matters within a reasonable
period of time after the Depositor or the Administrative Trustees on behalf of
the Trust shall have become aware of the possible occurrence of any such event.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security interest
or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of Trust
Securities, Trust Securities having an aggregate Liquidation Amount equal to the
aggregate principal amount of Debentures to be contemporaneously redeemed in
accordance with the Indenture and the proceeds of which shall be used to pay the
Redemption Price of such Trust Securities; and (b) with respect to a
distribution of Debentures to Holders of Trust Securities in connection with a
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. Each Debenture distributed pursuant to clause
(b) above shall carry with it accrued interest in an amount equal to the accrued
and unpaid interest then due on such Debentures.
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"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 dissolution and
liquidation of the Trust pursuant to Section 9.4(a).
"Liquidation Distribution" has the meaning specified in Section 9.4(d).
"Majority in Liquidation Amount" means, with respect to the Trust
Securities, except as provided in the terms of the Trust Preferred Securities
or, if the Indenture is then required to be qualified under the Trust Indenture
Act, by the Trust Indenture Act, Holder(s) of Outstanding Trust Securities
voting together as a single class or, as the context may require, Holders of
Outstanding Trust Preferred Securities or Holders of Outstanding Common
Securities voting separately as a class, who are the record owners of more than
50% of the aggregate Liquidation Amount of all Outstanding Trust Securities of
the relevant class.
"Maturity Date" means the date on which the Debentures mature and on
which the principal shall be due and payable together with all accrued and
unpaid interest thereon including Compounded Interest and Additional Interest
(each as defined in the Indenture), if any.
"Officers' Certificate" means a certificate signed by the Chief
Executive Officer, President or an Executive Vice President and by the Treasurer
or the Vice President--Finance or the Secretary, of the Depositor, and delivered
to the appropriate Trustee. One of the officers signing an Officers' Certificate
given pursuant to Section 8.17 hereof 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:
(h) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions
relating thereto;
(i) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in rendering
the Officers' Certificate;
(j) 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
(k) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Opinion of Counsel" means an opinion in writing of independent,
outside legal counsel for the Trust, the Property Trustee, the Resident Trustee
or the Depositor, who shall be reasonably acceptable to the Property Trustee.
"Original Trust Agreement" has the meaning specified in the Recitals to
this Trust Agreement.
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"Outstanding", when used with respect to Trust Preferred Securities,
means, as of the date of determination, all Trust Preferred Securities
theretofore executed and delivered under this Trust Agreement, except:
(l) Trust Preferred Securities theretofore canceled by the
Property Trustee or delivered to the Property Trustee for cancellation;
(m) Trust Preferred Securities for whose payment or redemption
money in the necessary amount has been theretofore deposited with the
Property Trustee or any Paying Agent for the Holders of such Trust
Preferred Securities; provided that, if such Trust Preferred Securities
are to be redeemed, notice of such redemption has been duly given
pursuant to this Trust Agreement; and
(n) Trust Preferred Securities which have been paid or in
exchange for or in lieu of which other Trust Preferred Securities have
been executed and delivered pursuant to Sections 5.4, 5.5 and 5.11;
provided, however, that in determining whether the Holders of the
requisite Liquidation Amount of the Outstanding Trust Preferred
Securities have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, Trust Preferred Securities owned
by the Depositor, any Trustee or any Affiliate of the Depositor or any
Trustee shall be disregarded and deemed not to be Outstanding, except
that (a) in determining whether any Trustee shall be protected in
relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Trust Preferred Securities that such
Trustee knows to be so owned shall be so disregarded; and (b) the
foregoing shall not apply at any time when all of the outstanding Trust
Preferred Securities are owned by the Depositor, one or more of the
Trustees and/or any such Affiliate. Trust Preferred Securities so owned
which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Administrative
Trustees the pledgee's right to the Trust Preferred Securities of
Depositor or any Affiliate of the Depositor.
"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 5.9 hereof and shall initially be the Bank.
"Payment Account" means a segregated non-interest-bearing corporate
trust account maintained by the Property Trustee with the Bank in its trust
department for the benefit of the Securityholders in which all amounts paid in
respect of the Debentures shall be held and from which the Property Trustee
shall make payments to the Securityholders in accordance with Sections 4.1 and
4.2 hereof.
"Person" means any individual, corporation, partnership, joint venture,
trust, limited liability company, unincorporated organization or government or
any agency or political subdivision thereof.
"Placement Agreement" means the Placement Agreement, effective as of
June 27, 2002, among the Trust, the Depositor and the Placement Agent named
therein.
"Preferred Securities Guarantee" means the Trust Preferred Securities
Guarantee Agreement executed and delivered by the Depositor and ▇▇▇▇▇ Fargo
Bank, National
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Association, as trustee, contemporaneously with the execution and delivery of
this Trust Agreement, for the benefit of the holders of the Trust Preferred
Securities, as amended from time to time.
"Property Trustee" means the commercial bank or trust company
identified as the "Property Trustee," in the Preamble to this Trust Agreement
solely in its capacity as Property Trustee of the Trust heretofore formed and
continued hereunder and not in its individual capacity, or its successor in
interest in such capacity, or any successor property trustee appointed as herein
provided.
"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 (i) each Redemption Date must fall on a Distribution
Date, and (ii) 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 8.11
hereof.
"Resale Restriction Termination Date" means, with respect to the offer,
sale or other transfer of a Trust Preferred Security, (a) the date which is two
years (or such shorter period of time as permitted by Rule 144(k) under the
Securities Act) after the later of the original issue date of such Trust
Preferred Security and the last date on which the Company or any Affiliate of
the Company was the owner of such Trust Preferred Security (or any predecessor
of the Trust Preferred Security) and (b) such later date, if any, as may be
required by applicable laws.
"Resident Trustee" means the commercial bank or trust company
identified as the "Resident Trustee" in the Preamble to this Trust Agreement
solely in its capacity as Resident Trustee of the Trust continued hereunder and
not in its individual capacity, or its successor in interest in such capacity,
or any successor Resident Trustee appointed as herein provided.
"Responsible Officer" when used with respect to the Property Trustee
means any officer assigned to the Corporate Trust Office and having direct
responsibility for the administration of this Trust Agreement, and also, with
respect to a particular matter, any other officer of the Property Trustee to
whom such matter is referred because of such officer's knowledge of and
familiarity with the particular subject.
"Securities Register" and "Securities Registrar" shall have the
respective meanings specified in Section 5.4 hereof.
"Securityholder" or "Holder" means a Person in whose name a Trust
Security is, or Trust Securities are, registered in the Securities Register; any
such Person is a beneficial owner within the meaning of the Delaware Business
Trust Act.
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"Three-Month LIBOR Rate" has the meaning specified in Section 4.1(d).
"Trust" means the Delaware business trust created by the filing of the
Certificate of Trust with the Secretary of State of the State of Delaware and
the execution of the Original Trust Agreement, and continued hereby and
identified on the cover page to this Trust Agreement.
"Trust Agreement" means this Amended and Restated Trust Agreement, as
the same may be modified, amended or supplemented in accordance with the
applicable provisions hereof, including all exhibits hereto, including, for all
purposes of this Trust Agreement and any such modification, amendment or
supplement, the provisions of the Trust Indenture Act, if any, that are deemed
to be a part of and govern this Trust Agreement and any such modification,
amendment or supplement, respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, as in force at the date as of which this instrument was executed;
provided, however, that in the event the Trust Indenture Act of 1939, as
amended, is amended after such date, "Trust Indenture Act" means, to the extent
required by any such amendment, the Trust Indenture Act of 1939 as so amended.
"Trust Preferred Securities Certificate" means a certificate evidencing
ownership of Trust Preferred Securities, substantially in the form attached
hereto as Exhibit D.
"Trust Preferred Security" means an undivided preferred beneficial
interest in the assets of the Trust, having a per share 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.
"Trust Property" means (a) the Debentures; (b) the rights of the
Property Trustee, if any, under the Guarantee; (c) any cash on deposit in, or
owing to, the Payment Account; (d) the Initial Contribution (as defined in
Section 2.3); and (e) 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 terms of this Trust Agreement.
"Trust Security" means any one of the Common Securities or the Trust
Preferred Securities.
"Trust Securities Certificate" means any one of the Common Securities
Certificates or the Trust Preferred Securities Certificates.
"Trustees" means, collectively, the Property Trustee, the Resident
Trustee and the Administrative Trustees.
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ARTICLE II
ESTABLISHMENT OF THE TRUST
SECTION 2.1 NAME.
The Trust continued hereby shall be known as "United Bancorp 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 and the Depositor 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 RESIDENT TRUSTEE; PRINCIPAL PLACE OF BUSINESS
OF THE TRUST.
The address of the Resident Trustee is c/o Wells Fargo Delaware Trust
Company, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn:
Corporate Trust Administration, or such other address as the Resident Trustee
may designate by written notice to the Securityholders and the Depositor.
The principal executive office of the Trust is ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
SECTION 2.3 INITIAL CONTRIBUTION OF TRUST PROPERTY; ORGANIZATIONAL
EXPENSES.
The Resident Trustee and Administrative Trustees acknowledge receipt in
trust from the Depositor in connection with the Original Trust Agreement of the
sum of One Hundred Dollars ($100) (the "Initial Contribution"), which
constituted the initial Trust Property; and the Property Trustee acknowledges
receipt of all Trust Property pursuant to this Agreement. The Depositor shall
pay organizational expenses of the Trust as they arise or shall, upon request of
any Trustee, promptly reimburse such Trustee for any such expenses paid by such
Trustee. The Depositor shall make no claim upon the Trust Property for the
payment of such expenses.
SECTION 2.4 ISSUANCE OF THE TRUST PREFERRED SECURITIES.
Contemporaneously with the execution and delivery of this Trust
Agreement, an Administrative Trustee, on behalf of the Trust, shall execute and
cause to be delivered in accordance with Sections 5.2 and 5.3 Trust Preferred
Securities Certificates, registered in the name of the Persons entitled thereto
in an aggregate amount of Four Thousand (4,000) Trust Preferred Securities
having an aggregate Liquidation Amount of Four Million Dollars ($4,000,000)
against receipt of the aggregate purchase price of such Trust Preferred
Securities of Four Million Dollars ($4,000,000), which amount such
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 and
cause to be delivered to the Depositor in accordance with Sections 5.2 and 5.3,
a Common Securities Certificate, registered in the name of the Depositor, in an
aggregate amount of One Hundred Twenty-Five (125) Common Securities having an
aggregate Liquidation Amount of One Hundred Twenty-Five Thousand Dollars
($125,000) against payment by the Depositor of such amount. Contemporaneously
therewith, an Administrative Trustee, on behalf of the Trust, shall subscribe
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to and purchase from the Depositor Debentures, registered in the name of the
Property Trustee on behalf of the Trust and having an aggregate principal amount
equal to Four Million One Hundred Twenty-Five Thousand Dollars ($4,125,000),
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 Four
Million One Hundred Twenty-Five Thousand Dollars ($4,125,000).
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; (b) to make distributions as provided herein; (c) to enter into the
agreements, documents, and instruments necessary to accomplish (a) and (b); and
(d) to engage in those activities necessary, advisable or incidental thereto.
The Depositor hereby appoints, or confirms the appointment of, as the case may
be, 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, or
confirm their acceptance, as the case may be, of such appointments. The Property
Trustee hereby declares that it shall hold the Trust Property in trust upon and
subject to the conditions set forth herein for the benefit of the
Securityholders. The Administrative Trustees shall have all rights, powers and
duties set forth herein and in accordance with applicable law with respect to
accomplishing the purposes of the Trust. The Resident Trustee shall not be
entitled to exercise any powers, nor shall the Resident Trustee have any of the
duties and responsibilities, of the Property Trustee or the Administrative
Trustees set forth herein. The Resident Trustee shall be one of the Trustees of
the Trust for the sole and limited purpose of fulfilling the residency
requirements of applicable sections of the Delaware Business Trust Act.
SECTION 2.7 AUTHORIZATION OF TRUSTEES 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 2.7 and Article
VIII hereof, and in accordance with the following provisions (i) and
(ii), the Administrative Trustees shall have the authority to enter
into all transactions and agreements determined by the Administrative
Trustees to be appropriate in exercising the authority, express or
implied, otherwise granted to the Administrative Trustees under this
Trust Agreement, and to perform all acts in furtherance thereof,
including without limitation, the acts set forth in the following
provision (i):
(i) As among the Trustees, each Administrative Trustee,
acting singly or jointly, shall have the power and
authority to act on behalf of the Trust with respect
to the following matters:
(A) the issuance and sale of the Trust
Securities and the compliance with the
Placement Agreement in connection therewith;
(B) to cause the Trust to enter into, and to
execute, deliver and perform on behalf of
the Trust, the Expense Agreement and such
other agreements or documents as may be
necessary or desirable in connection with
the purposes and function of the Trust;
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(C) assisting in the registration of the Trust
Preferred Securities under state securities
or blue sky laws, if required, and the
qualification of this Trust Agreement as a
trust indenture under the Trust Indenture
Act, if required;
(D) the application for a taxpayer
identification number for the Trust;
(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) to acquire as trust assets Debentures with
the proceeds of the sale of the Trust
Securities;
(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) the taking of all action that may be
necessary or appropriate for the
preservation and the continuation of the
Trust's valid existence, rights, franchises
and privileges as a statutory business trust
under the laws of the State of Delaware and
of each other jurisdiction in which such
existence is necessary to protect the
limited liability of the Holders of the
Trust Preferred Securities or to enable the
Trust to effect the purposes for which the
Trust was created; and
(J) the taking of any action incidental to the
foregoing as the Administrative 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 and maintenance 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;
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(D) the distribution of amounts owed to the
Securityholders in respect of the Trust
Securities in accordance with the terms of
this Trust Agreement;
(E) the exercise of all of the rights, powers
and privileges of a holder of the
Debentures;
(F) the sending of notices of default and other
information regarding the Trust Securities
and the Debentures to the Securityholders in
accordance with this Trust Agreement;
(G) the distribution of the Trust Property in
accordance with the terms of this Trust
Agreement;
(H) to the extent provided in this Trust
Agreement, the winding up of the affairs of
and liquidation of the Trust;
(I) after an Event of Default, the taking of any
action incidental to the foregoing as the
Property Trustee may from time to time
determine in good faith is necessary or
advisable to give effect to the terms of
this Trust Agreement and protect and
conserve the Trust Property for the benefit
of the Securityholders (without
consideration of the effect of any such
action on any particular Securityholder);
(J) registering transfers of the Trust
Securities in accordance with this Trust
Agreement; and
(K) engaging in such ministerial activities as
shall be necessary or appropriate to effect
the redemption of the Trust Securities to
the extent the Debentures are redeemed or
mature.
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, on behalf of the Trust (i) acquire any investments or engage
in any activities not authorized by this Trust Agreement; (ii) sell,
assign, transfer, exchange, mortgage, pledge, set-off or otherwise
dispose of any of the Trust Property or interests therein, including to
Securityholders, except as expressly provided herein; (iii) take any
action that would cause the Trust to fail or cease to qualify as a
"grantor trust" for United States federal income tax purposes; (iv)
incur any indebtedness for borrowed money or issue any other debt; or
(v) take or consent to any action that would result in the placement of
a Lien on any of the Trust Property. The Administrative Trustees shall
defend all claims and demands of all Persons at any time claiming any
Lien on any of the
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Trust Property adverse to the interest of the Trust or the
Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Trust
Preferred Securities, the Depositor shall have the right and
responsibility, and is hereby authorized, to assist the Trust with
respect to, or effect on behalf of the Trust, the following (and any
actions taken by the Depositor in furtherance of the following prior to
the date of this Trust Agreement are hereby ratified and confirmed in
all respects):
(i) the determination of the states in which to take
appropriate action to qualify or, register for sale
all or part of the Trust Preferred Securities and to
do any and all such acts, other than actions which
must be taken by or on behalf of the Trust, and
advise the Trustees of actions they must take on
behalf of the Trust, and prepare for execution and
filing any documents to be executed and filed by the
Trust or on behalf of the Trust, as the Depositor
deems necessary or advisable in order to comply with
the applicable laws of any such States; and
(ii) the negotiation of the terms of, and the execution
and delivery of, the Placement Agreement providing
for the sale of the Trust Preferred Securities; and
(iii) 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 shall
not be deemed to be an "investment company" required to be registered
under the Investment Company Act, shall be classified as a "grantor
trust" and not as an association taxable as a corporation for United
States federal income tax purposes and so that the Debentures shall be
treated as indebtedness of the Depositor for United States federal
income tax purposes. In this connection, subject to Section 10.2, the
Depositor and the Administrative Trustees are authorized to take any
action and the Administrative Trustees are authorized to direct the
Property Trustee in writing to take any action, not inconsistent with
applicable law or this Trust Agreement, that each of the Depositor and
the Administrative Trustees determines in their discretion to be
necessary or desirable for such purposes. The Property Trustee shall
take any action so directed by one or more of the Administrative
Trustees.
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 Securityholders in accordance with
this Trust Agreement.
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ARTICLE III
PAYMENT ACCOUNT
SECTION 3.1 PAYMENT ACCOUNT.
(a) On the Closing Date, the Property Trustee shall establish
the Payment Account. The Property Trustee and any agent of the Property
Trustee shall have exclusive control and sole right of withdrawal with
respect to the Payment Account for the purpose of making deposits and
withdrawals from the Payment Account in accordance with this Trust
Agreement. All money 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) Distributions on the Trust Securities shall be cumulative,
and shall accumulate whether or not there are funds of the Trust
available for the payment of Distributions. Distributions shall
accumulate from June 27, 2002, and, except during any Extended Interest
Payment Period with respect to the Debentures, shall be payable
quarterly in arrears on March 30, June 30, September 30 and December 30
of each year, commencing on September 30, 2002 (each such quarter, a
"Distribution Period"). 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 increase in the amount of
interest or other payment in respect of any such delay) except that, if
such Business Day is in the next succeeding calendar year, such payment
shall be made on the immediately preceding Business Day (and without
any reduction in the amount of interest or any other payment in respect
of any such acceleration), in each case with the same force and effect
as if made on such date (each date on which Distributions are payable
in accordance with this Section 4.1(a), a "Distribution Date").
(b) The Trust Securities represent undivided beneficial
interests in the Trust Property, and the Distributions on the Trust
Securities shall be payable at a floating rate ("Floating Distribution
Rate") of 3.65% per annum over the Three Month LIBOR Rate (as defined
below) from time to time in effect on the Liquidation Amount of the
Trust Securities. The Floating Distribution Rate for each Distribution
Period will be set
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pursuant to Section 4.1(d) of this Article IV; provided, that the
initial Floating Distribution Rate will be set on June 30, 2002. In no
event shall the Floating Distribution Rate exceed 12% prior to June 30,
2007.
(c) The amount of Distributions payable for any full
Distribution Period shall be computed on the basis of a 360-day year
and the actual number of days in such Distribution Period. During any
Extended Interest Payment Period with respect to the Debentures,
Distributions on the Trust Preferred Securities shall be deferred for a
period equal to the Extended Interest Payment Period. The amount of
Distributions payable for any period shall include the Additional
Amounts, if any.
(d) The "Three-Month LIBOR Rate" shall mean the rate
determined in accordance with the following provisions:
(i) On the second LIBOR Business Day (provided that on
such day commercial banks are open for business
(including dealings in foreign currency deposits) in
London (a "LIBOR Banking Day") preceding each January
15, April 15, July 15 and October 15 (except with
respect to the first interest payment period, on June
27, 2002 (each such date, a "Distribution Reset
Date"), ▇▇▇▇▇ Fargo Bank, National Association (the
"Calculation Agent"), will determine the Three-Month
LIBOR Rate which shall be the rate for deposits in
the London interbank market in U.S. dollars having a
three-month maturity which appears on the Telerate
Page 3750 as of 11:00 a.m., London time, on such
Distribution Reset Date. "Telerate Page 3750" means
the display on Page 3750 of the Bloomberg Financial
Markets Commodities News (or such other page as may
replace that page on that service for the purpose of
displaying London interbank offered rates of major
banks for U.S. dollar deposits). If the Three-Month
LIBOR Rate on such Distribution Reset Date does not
appear on the Telerate Page 3750, such Three-Month
LIBOR Rate will be determined as described in (ii)
below. "LIBOR Business Day" means any day that is not
a Saturday, Sunday or other day on which commercial
banking institutions in New York, New York or
Wilmington, Delaware are authorized or obligated by
law or executive order to be closed. If such rate is
superseded on Telerate Page 3750 by a corrected rate
before 12:00 noon (London time) on the same
Distribution Reset Date, the corrected rate as so
substituted will be the applicable LIBOR for that
Distribution Reset Date.
(ii) If, on any Distribution Reset Date, such rate does
not appear on Telerate Page 3750 as reported by
Bloomberg Financial Markets Commodities News or such
other page as may replace such Telerate Page 3750,
the Calculation Agent shall determine the arithmetic
mean of the offered quotations of the Reference Banks
(as defined below) to leading banks in the London
interbank market for three-month U.S. Dollar deposits
in Europe (in an amount determined by the Calculation
Agent) by reference to requests for quotations as of
approximately 11:00 a.m. (London time)
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on the Distribution Reset Date made by the
Calculation Agent to the Reference Banks. If, on any
Distribution Reset Date, at lease two of the
Reference Banks provide such quotations, LIBOR shall
equal the arithmetic mean of such quotations. If, on
any Distribution Reset Date, only one or none of the
Reference Banks provide such a quotation, LIBOR shall
be deemed to be the arithmetic mean of the offered
quotations that at least two leading banks in the
City of New York (as selected by the Calculation
Agent) are quoting on the relevant Distribution Reset
Date for three-month U.S. Dollar deposits in Europe
at approximately 11:00 a.m. (London time) (in an
amount determined by the Calculation Agent). As used
herein, "Reference Banks" means four major banks in
the London interbank market selected by the
Calculation Agent.
(iii) If the Calculation Agent is required but is unable to
determine a rate in accordance with at least one of
the procedures provided above, LIBOR shall be LIBOR
in effect on the previous Distribution Reset Date
(whether or not LIBOR for such period was in fact
determined on such Distribution Reset Date).
(e) Distributions on the Trust Securities shall be made by the
Property Trustee solely from the Payment Account and shall be payable
on each Distribution Date only to the extent that the Trust has funds
on hand and immediately and legally available by 12:30 p.m. New York
City time on each Distribution Date in the Payment Account for the
payment of such Distributions.
(f) 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 on the relevant record date, which
shall be the 15th day of the month in which the relevant Distribution
Date occurs, which Distribution Dates correspond to the interest
payment dates on the Debentures.
SECTION 4.2 REDEMPTION
(a) On each Debenture Redemption Date and on the maturity of
the Debentures, the Trust shall be required to redeem a Like Amount of
Trust Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property
Trustee by first-class mail, postage prepaid, mailed not less than 30
nor more than 60 days prior to the Redemption Date to each Holder of
Trust Securities to be redeemed, at such Holder's address appearing in
the Securities Register. The Property Trustee shall have no
responsibility for the accuracy of any CUSIP number, if any, contained
in such notice. All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
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(iii) the CUSIP number, if any;
(iv) if less than all the Outstanding Trust Securities are
to be redeemed, the identification and the aggregate
Liquidation Amount of the particular Trust Securities
to be redeemed;
(v) that, on the Redemption Date, the Redemption Price
shall become due and payable upon each such Trust
Security to be redeemed and that Distributions
thereon shall cease to accumulate on and after said
date, except as provided in Section 4.2(d); and
(vi) the place or places at which Trust Securities are to
be surrendered for the payment of the Redemption
Price.
(c) The Trust Securities redeemed on each Redemption Date
shall be redeemed at the Redemption Price with the proceeds from the
contemporaneous redemption of Debentures. Redemptions of the Trust
Securities shall be made and the Redemption Price shall be payable on
each Redemption Date only to the extent that the Trust has immediately
and legally available funds then on hand and legally available in the
Payment Account for the payment of such Redemption Price.
(d) If the Property Trustee gives a notice of redemption in
respect of any Trust Preferred Securities, then, by 12:00 noon, New
York City time, on the Redemption Date, subject to Section 4.2(c), the
Property Trustee, subject to Section 4.2(c), shall deposit with the
Paying Agent funds sufficient to pay the applicable Redemption Price
and shall give the Paying Agent irrevocable instructions and authority
to pay the Redemption Price to the Holders thereof upon surrender of
their Trust Preferred Securities Certificates. Notwithstanding the
foregoing, Distributions payable on or prior to the Redemption Date for
any Trust Securities called for redemption shall be payable to the
Holders of such Trust Securities as they appear on the Securities
Register for the Trust Securities on the relevant record dates for the
related Distribution Dates. If notice of redemption shall have been
given and funds deposited as required, then upon the date of such
deposit, (i) all rights of Securityholders holding Trust Securities so
called for redemption shall cease with respect to such Trust
Securities, except the right of such Securityholders to receive the
Redemption Price, without interest, (ii) such Trust Securities shall
cease to be Outstanding, and (iii) any Trust Securities Certificates
will be deemed to represent Debentures having a principal amount equal
to the stated Liquidation Amount of the Trust Securities represented
thereby and bearing accrued and unpaid interest in an amount equal to
the accumulated and unpaid Distributions on such Trust Securities until
such certificates are presented to the Securities Registrar for
transfer or reissuance. In the event that any date on which any
Redemption Price is payable is not a Business Day, then payment of the
Redemption Price payable on such date shall be made on the next
succeeding day that is a Business Day (and without any interest or
other payment in respect of any such delay) except that, if such
Business Day is in the next succeeding calendar year, such payment
shall be made on the immediately preceding Business Day (and without
any reduction of interest or any other payment in respect of any such
acceleration), in each case with the same force and effect as if made
on such date. In the
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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
Preferred Securities Guarantee, Distributions on such Trust Securities
shall continue to accumulate, at the then applicable rate, from the
Redemption Date originally established by the Trust for such Trust
Securities to the date such Redemption Price is actually paid, in which
case the actual payment date shall be the date fixed for redemption for
purposes of calculating the Redemption Price.
(e) Payment of the Redemption Price on the Trust Securities
shall be made to the record holders thereof as they appear on the
Securities Register for the Trust Securities on the relevant record
date, which shall be the date 15 days prior to the relevant Redemption
Date.
(f) Subject to Section 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 Trust Preferred
Securities. The particular Trust Preferred Securities to be redeemed
shall be selected not more than 60 days prior to the Redemption Date by
the Property Trustee from the Outstanding Trust Preferred Securities
not previously called for redemption, by such method (including,
without limitation, by lot) as the Property Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of
portions (equal to such Liquidation Amount or an integral multiple of
such Liquidation Amount in excess thereof) of the Liquidation Amount of
the Trust Preferred Securities of a denomination larger than such
Liquidation Amount, provided, however, that in the event the redemption
relates only to Trust Preferred Securities held by the Depositor being
redeemed in exchange for a Like Amount of Debentures, the Property
Trustee shall select the particular Trust Preferred Securities for
redemption. The Property Trustee shall promptly notify the Securities
Registrar in writing of the Trust Preferred Securities selected for
redemption and, in the case of any Trust Preferred Securities selected
for partial redemption, the Liquidation Amount thereof to be redeemed.
For all purposes of this Trust Agreement, unless the context otherwise
requires, all provisions relating to the redemption of Trust Preferred
Securities shall relate, in the case of any Trust Preferred Securities
redeemed or to be redeemed only in part, to the portion of the
Liquidation Amount of Trust Preferred Securities which has been or is
to be redeemed.
SECTION 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 Trust Preferred Securities based on the
Liquidation Amount of the Trust Securities; provided, however, that if
on any Distribution Date or Redemption Date any Event of Default
resulting from a Debenture Event of Default shall have occurred and be
continuing, no payment of any Distribution (including Additional
Amounts, if applicable) on, or Redemption Price of, any Common
Security, and no other payment on account of the redemption,
liquidation or other acquisition of Common Securities, shall be made
unless payment in full in cash
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of all accumulated and unpaid Distributions (including Additional
Amounts, if applicable) on all Outstanding Trust Preferred Securities
for all Distribution Periods terminating on or prior thereto, or in the
case of payment of the Redemption Price the full amount of such
Redemption Price on all Outstanding Trust Preferred Securities then
called for redemption, shall have been made or provided for, and all
funds immediately and legally available to the Property Trustee shall
first be applied to the payment in full in cash of all Distributions
(including Additional Amounts, if applicable) on, or the Redemption
Price of, Trust Preferred Securities then due and payable.
(b) In the case of the occurrence of any Event of Default
resulting from a Debenture Event of Default, the Holder of the Common
Securities shall be deemed to have waived any right to act with respect
to any such Event of Default under this Trust Agreement until the
effect of all such Events of Default with respect to the Trust
Preferred Securities shall have been cured, waived or otherwise
eliminated. Until any such Event of Default under this Trust Agreement
with respect to the Trust Preferred Securities shall have been so
cured, waived or otherwise eliminated, the Property Trustee shall act
solely on behalf of the Holders of the Trust Preferred Securities and
not the Holder of the Common Securities, and only the Holders of the
Trust Preferred Securities shall have the right to direct the Property
Trustee to act on their behalf.
SECTION 4.4 PAYMENT PROCEDURES.
Payments of Distributions (including Additional Amounts, if applicable)
in respect of the Trust Preferred Securities shall be made by check mailed to
the address of the Person entitled thereto as such address shall appear on the
Securities Register on the relevant record date. Payments in respect of the
Common Securities shall be made in such manner as shall be mutually agreed
between the Property Trustee and the Holder of the Common Securities.
SECTION 4.5 TAX RETURNS AND REPORTS.
The Administrative Trustees shall prepare (or cause to be prepared), at
the Depositor's expense, and file all information returns and reports required
to be filed by or in respect of the Trust by applicable taxing authorities. In
this regard, the Administrative Trustees shall (a) prepare and file (or cause to
be prepared and filed) the appropriate forms required to be filed in respect of
the Trust in each taxable year of the Trust; and (b) prepare and furnish (or
cause to be prepared and furnished) to each Securityholder the appropriate forms
required to be furnished to such Securityholder or the information required to
be provided on such forms. The Administrative Trustees shall provide the
Depositor with a copy of all such returns and reports promptly after such filing
or furnishing. The Property Trustee shall comply with all applicable withholding
and 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 (as defined in
Section 1.1 of the Indenture), the Property Trustee, at the written direction of
an Administrative Trustee or the Depositor, shall promptly pay any taxes, duties
or governmental charges of whatsoever nature
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(including withholding taxes) imposed on the Trust by the United States or any
other taxing authority.
SECTION 4.7 PAYMENTS UNDER INDENTURE.
Any amount payable hereunder to any record holder of Trust Preferred
Securities shall be reduced by the amount of any corresponding payment such
Holder has directly received under the Indenture pursuant to Section 5.13(b) or
(c) hereof.
ARTICLE V
TRUST SECURITIES CERTIFICATES
SECTION 5.1 INITIAL OWNERSHIP.
Upon the creation of the Trust and the contribution by the Depositor
pursuant to Section 2.3 hereof 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.
Subject to Sections 5.4(h) and (i), the Trust Preferred Securities
Certificates shall be issued in minimum denominations of the Liquidation Amount
and integral multiples of such Liquidation Amount in excess thereof, and the
Common Securities Certificates shall be issued in denominations of the
Liquidation Amount and integral multiples thereof. The Trust Securities
Certificates shall be executed on behalf of the Trust by manual or facsimile
signature of at least one Administrative Trustee. Trust Securities Certificates
bearing the manual or facsimile signatures of individuals who were, at the time
when such signatures shall have been affixed, authorized to sign on behalf of
the Trust, shall be validly issued and entitled to the benefits of this Trust
Agreement, notwithstanding that such individuals or any of them shall have
ceased to be so authorized prior to the delivery of such Trust Securities
Certificates or did not hold such offices at the date of delivery of such Trust
Securities Certificates. A transferee of a Trust Securities Certificate shall
become a Securityholder, and shall be entitled to the rights and subject to the
obligations of a Securityholder hereunder, upon due registration of such Trust
Securities Certificate in such transferee's name pursuant to Sections 5.4, 5.11
and 5.13 hereof.
SECTION 5.3 EXECUTION, AUTHENTICATION AND DELIVERY OF TRUST SECURITIES
CERTIFICATES.
(a) On 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 hereof, to be executed on behalf of
the Trust by the manual or facsimile signature of at least one of the
Administrative Trustees, cause the Common Securities Certificate to be
delivered to the Depositor, and cause the Trust Preferred Securities
Certificates to be delivered to the Property Trustee and upon receipt
of such delivery the Property Trustee shall authenticate such Trust
Preferred Securities Certificates and deliver such Trust Preferred
Securities Certificates, upon written order of the Administrative
Trustees on behalf of the Trust, as set forth below, in authorized
denominations.
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(b) A Trust Preferred Securities Certificate shall not be
valid until authenticated by the manual signature of an authorized
signatory of the Property Trustee. The signature shall be conclusive
evidence that the Trust Preferred Securities Certificate has been
authenticated under this Trust Agreement. Each Trust Preferred Security
Certificate shall be effective the date of its authentication.
Upon the written order of the Trust signed by one of the Administrative
Trustees, the Property Trustee shall authenticate and make available for
delivery the Trust Preferred Securities Certificates.
The Property Trustee may appoint an Authenticating Agent acceptable to
the Trust to authenticate the Trust Preferred Securities Certificates. An
Authenticating Agent may authenticate the Trust Preferred Securities
Certificates whenever the Property Trustee may do so. Each reference in this
Trust Agreement to authentication by the Property Trustee includes
authentication by such agent. An Authenticating Agent has the same rights as the
Property Trustee to deal with the Company or the Trust.
SECTION 5.4 REGISTRATION OF TRANSFER AND EXCHANGE OF TRUST PREFERRED
SECURITIES CERTIFICATES.
(a) The Depositor shall keep or cause to be kept, at the
office or agency maintained pursuant to Section 5.8 hereof, a register
or registers for the purpose of registering Trust Securities
Certificates and transfers and exchanges of Trust Securities
Certificates (herein referred to as the "Securities Register") in which
the registrar designated by the Depositor (the "Securities Registrar"),
subject to such reasonable regulations as it may prescribe, shall
provide for the registration of Trust Preferred Securities Certificates
and Common Securities Certificates (subject to Section 5.10 hereof in
the case of the Common Securities Certificates) and registration of
transfers and exchanges of Trust Preferred Securities Certificates as
herein provided. The Securities Registrar shall not be required to
register the transfer of any Trust Preferred Securities that have been
called for redemption. The Property Trustee shall be the initial
Securities Registrar.
(b) Upon surrender for registration of transfer of any Trust
Preferred Securities Certificate at the office or agency maintained
pursuant to Section 5.8 hereof, the Administrative Trustees or any one
of them shall, if the requirements for such transfer, as set forth
herein and on the Trust Preferred Securities Certificate, are met,
execute by manual or facsimile signature and deliver and the Property
Trustee shall, upon written order of one of the Administrative Trustees
on behalf of the Trust, authenticate and make available for delivery,
in the name of the designated transferee or transferees, one or more
new Trust Preferred Securities Certificates in authorized denominations
of a like aggregate Liquidation Amount effective the date of execution
by such Administrative Trustee or Trustees. At the option of a Holder,
Trust Preferred Securities Certificates may be exchanged for other
Trust Preferred Securities Certificates in authorized denominations of
the same class and of a like aggregate Liquidation Amount upon
surrender of the Trust Preferred Securities Certificates to be
exchanged at the office
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or agency maintained pursuant to Section 5.8. The procedures for
exchanges shall be the same for transfers as set forth in this
Subsection 5.4(b).
(c) The Trust Preferred Securities Certificates shall bear
certain legends identifying certain restrictions regarding the transfer
of the Trust Preferred Securities represented thereby, the first of
which is referred to herein as the "Restricted Securities Legend." The
legends shall not be removed; provided, however, that the Restricted
Securities Legend may be removed if the Administrative Trustees receive
such satisfactory evidence, which may include an Opinion of Counsel, as
may be reasonably required by the Administrative Trustees, that neither
the Restricted Securities Legend nor the restrictions on transfer set
forth therein are required to ensure that transfers thereof comply with
the provisions of the Securities Act. Upon provision of such
satisfactory evidence, the Property Trustee, at the written direction
of the Administrative Trustees, shall authenticate and deliver Trust
Preferred Securities Certificates that do not bear the Restricted
Securities Legend.
(d) Except as permitted by Section 5.4(c), each Trust
Preferred Security Certificate shall bear the legends in substantially
the following form and a Trust Preferred Security Certificate shall not
be transferred except in compliance with such legends, unless otherwise
determined by the Administrative Trustees, upon the advice of counsel,
in accordance with applicable law:
THIS TRUST PREFERRED SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), ANY STATE
SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES LAWS. NEITHER THIS
TRUST PREFERRED SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY
BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. PRIOR
TO (i) THE DATE WHICH IS TWO YEARS (OR SUCH SHORTER PERIOD OF TIME AS
PERMITTED BY RULE 144(k) UNDER THE SECURITIES ACT) AFTER THE LATER OF
THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE TRUST OR
ANY AFFILIATE OF THE TRUST WAS THE OWNER OF THIS TRUST PREFERRED
SECURITY (OR ANY PREDECESSOR OF THIS TRUST PREFERRED SECURITY) OR (ii)
SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAWS (THE
"RESALE RESTRICTION TERMINATION DATE") THE HOLDER OF THIS TRUST
PREFERRED SECURITY BY ITS ACCEPTANCE HEREOF AGREES FOR THE BENEFIT OF
THE TRUST TO OFFER, SELL OR OTHERWISE TRANSFER THIS TRUST PREFERRED
SECURITY ONLY (A) TO THE TRUST OR AN AFFILIATE OF THE TRUST, (B)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE
UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THIS TRUST PREFERRED
SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A ("RULE 144A")
PROMULGATED UNDER THE
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SECURITIES ACT, TO A PERSON THE HOLDER REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER IN COMPLIANCE WITH RULE 144A, (D) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (A)(1), (2), (3) OR (7) OF
RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS TRUST
PREFERRED SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN
INSTITUTIONAL "ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES AND NOT
WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH, ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO THE TRUST'S AND THE ADMINISTRATIVE TRUSTEES'
RIGHTS PRIOR TO ANY SUCH OFFER, SALE, TRANSFER OR OTHER DISPOSITION (i)
PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY BY THE HOLDER OF
AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION
SATISFACTORY TO THE TRUST AND THE ADMINISTRATIVE TRUSTEES TO CONFIRM
THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND (ii) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT
A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF
THIS CERTIFICATE IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE
PROPERTY TRUSTEE AND THE SECURITIES REGISTRAR IN CONNECTION WITH ANY
TRANSFER OF THIS SECURITY PRIOR TO THE RESALE RESTRICTION TERMINATION
DATE. THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE
CERTIFICATE OF TRANSFER RELATING TO THE MANNER OF SUCH TRANSFER AND
SUBMIT THE CERTIFICATE OF TRANSFER TO THE PROPERTY TRUSTEE AND THE
SECURITIES REGISTRAR. THIS LEGEND WILL BE REMOVED UPON REQUEST OF THE
HOLDER AFTER THE EARLIER OF (i) THE TRANSFER OF THE TRUST PREFERRED
SECURITY EVIDENCED HEREBY PURSUANT TO CLAUSE (B) ABOVE OR (ii) THE
RESALE RESTRICTION TERMINATION DATE. THE HOLDER WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS TRUST
PREFERRED SECURITY OF THE RESALE RESTRICTIONS REFERRED TO HEREIN.
PRIOR TO THE RESALE RESTRICTION TERMINATION DATE, THIS TRUST PREFERRED
SECURITY MAY BE TRANSFERRED OR EXCHANGED ONLY IN A MINIMUM AGGREGATE
LIQUIDATION AMOUNT OF NOT LESS THAN $100,000. ANY ATTEMPTED TRANSFER OF
THIS TRUST PREFERRED SECURITY IN AN AGGREGATE LIQUIDATION AMOUNT OF
LESS THAN $100,000 PRIOR TO THE
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RESALE RESTRICTION TERMINATION DATE SHALL BE DEEMED TO BE VOID AND OF
NO LEGAL EFFECT WHATSOEVER. AFTER SUCH RESALE RESTRICTION TERMINATION
DATE, ANY ATTEMPTED TRANSFER OF THIS TRUST PREFERRED SECURITY IN AN
AGGREGATE LIQUIDATION AMOUNT OF LESS THAN $100,000 SHALL BE DEEMED TO
BE VOID AND OF NO LEGAL EFFECT WHATSOEVER. ANY SUCH PURPORTED
TRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDER OF THIS TRUST PREFERRED
SECURITY FOR ANY PURPOSE, INCLUDING, BUT NOT LIMITED TO, THE RIGHT TO
RECEIVE DISTRIBUTIONS ON THIS TRUST PREFERRED SECURITY, AND SUCH
PURPORTED TRANSFEREE SHALL BE DEEMED TO HAVE NO INTEREST WHATSOEVER IN
THIS TRUST PREFERRED SECURITY.
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE
SECURITIES REGISTRAR SUCH CERTIFICATES AND OTHER INFORMATION AS MAY BE
REQUIRED BY THE AMENDED AND RESTATED TRUST AGREEMENT TO CONFIRM THAT
THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.
(e) Every Trust Preferred Securities Certificate presented or
surrendered for registration of transfer or exchange shall be duly
endorsed or accompanied by a written instrument of transfer in form
satisfactory to the Property Trustee and the Securities Registrar duly
executed by the Holder or his attorney duly authorized in writing, and,
in the case of Trust Preferred Securities Certificates bearing the
Restricted Securities Legends, accompanied by certification(s) in a
form substantially similar to the Letters of Representations attached
as Exhibit E and Exhibit F, as applicable, and evidence reasonably
satisfactory to the Property Trustee or the Securities Registrar as to
the compliance with the restrictions set forth in the Restricted
Securities Legend. When Trust Preferred Securities Certificates are
presented to the Securities Registrar to register the transfer of such
certificates or to exchange such certificates which become mutilated,
destroyed, defaced, stolen or lost, for an equal number of Trust
Preferred Securities Certificates, the Securities Registrar shall
register the transfer or make the exchange as requested if its
reasonable requirements for such transactions are met. Each Trust
Preferred Securities Certificate surrendered for registration of
transfer or exchange shall be canceled and subsequently disposed of by
the Property Trustee in accordance with its customary practice.
The Trust shall not be required to (i) issue, register the
transfer of, or exchange any Trust Preferred Securities during a period
beginning at the opening of business 15 calendar days before the date
of mailing of a notice of redemption of any Trust Preferred Securities
called for redemption and ending at the close of business on the day of
such mailing; or (ii) register the transfer of or exchange any Trust
Preferred Securities so selected for redemption, in whole or in part,
except the unredeemed portion of any such Trust Preferred Securities
being redeemed in part.
(f) No service charge shall be made for any registration of
transfer or exchange of Trust Preferred Securities Certificates but the
Securities Registrar may
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require payment of a sum sufficient to cover any tax or governmental
charge that may be imposed in connection with any transfer or exchange
of Trust Preferred Securities Certificates.
(g) Trust Preferred Securities may only be transferred, in
whole or in part, in accordance with the terms and conditions set forth
in this Trust Agreement. Any transfer or purported transfer of any
Trust Preferred Security not made in accordance with this Trust
Agreement shall be null and void. A Trust Preferred Security may be
transferred, in whole or in part, to a Person who takes delivery in the
form of another Trust Preferred Security as provided in this Section
5.4.
(h) Prior to the Resale Restriction Termination Date, Trust
Preferred Securities may only be transferred in a minimum aggregate
Liquidation Amount of $100,000. Any attempted transfer of Trust
Preferred Securities having an aggregate Liquidation Amount of less
than $100,000 shall be deemed to be void and of no legal effect
whatsoever. Any such purported transferee shall be deemed not to be a
Holder of such Trust Preferred Securities for any purpose, including,
but not limited to, the receipt of Distributions on such Trust
Preferred Securities, and such purported transferee shall be deemed to
have no interest whatsoever in such Trust Preferred Securities.
(i) Subsequent to the Resale Restriction Termination Date,
Trust Preferred Securities may only be transferred in a minimum
aggregate Liquidation Amount of $100,000. Any attempted transfer of
Trust Preferred Securities subsequent to the Resale Restriction
Termination Date having an aggregate Liquidation Amount of less than
$100,000 shall be deemed to be void and of no legal effect whatsoever.
Any such purported transferee shall be deemed not to be a Holder of
such Trust Preferred Securities for any purpose, including, but not
limited to, the receipt of Distributions on such Trust Preferred
Securities, and such purported transferee shall be deemed to have no
interest whatsoever in such Trust Preferred Securities.
SECTION 5.5 MUTILATED, DESTROYED, LOST OR STOLEN TRUST SECURITIES
CERTIFICATES.
If (a) any mutilated Trust Securities Certificate shall be surrendered
to the Trust or in the case of the Trust Preferred Securities to the Property
Trustee or the Securities Registrar, or if the Trust or, in the case of the
Trust Preferred Securities the Property Trustee or 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
Administrative Trustees or in the case of the Trust Preferred Securities to the
Property Trustee 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 5.5, 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 5.5 shall constitute
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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.
SECTION 5.6 PERSON DEEMED SECURITYHOLDERS.
The Trustees, the Paying Agent and the Securities Registrar shall treat
the Person in whose name any Trust Securities Certificate shall be registered in
the Securities Register as the owner of such Trust Securities Certificate for
the purpose of receiving Distributions and for all other purposes whatsoever,
and none of the Trustees, the Paying Agent or the Securities Registrar shall be
bound by any notice to the contrary.
SECTION 5.7 ACCESS TO LIST OF SECURITYHOLDERS' NAMES AND ADDRESSES.
At any time when the Property Trustee is not also acting as the
Securities Registrar, the Administrative Trustees or the Depositor shall furnish
or cause to be furnished to the Property Trustee (a) within five Business Days
of each record date, a list, in such form as the Property Trustee may reasonably
require, of the names and addresses of the Securityholders as of the most recent
record date; and (b) promptly after receipt by any Administrative Trustee or the
Depositor of a request therefor from the Property Trustee in order to enable the
Property Trustee to discharge its obligations under this Trust Agreement, in
each case to the extent such information is in the possession or control of the
Administrative Trustees or the Depositor and is not identical to a previously
supplied list or has not otherwise been received by the Property Trustee in its
capacity as Securities Registrar. The rights of the Securityholders to
communicate with other Securityholders with respect to their rights under this
Trust Agreement or under the Trust Securities, and the corresponding rights of
the Property Trustee shall be as provided in the Trust Indenture Act. Each
Holder, by receiving and holding a Trust Securities Certificate 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 Trust shall maintain, or cause to be maintained, in location(s)
designated by the Administrative Trustees, an office or offices or agency or
agencies where Trust Preferred Securities Certificates may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Trustees in respect of the Trust Securities Certificates may be served. The
Administrative Trustees initially designate the Corporate Trust Office of the
Property Trustee, as the principal corporate trust office for such purposes. The
Administrative Trustees shall give prompt written notice to the Depositor, to
the Property Trustee 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
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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 Administrative Trustees determine in their sole discretion that it would be
in the best interests of the Trust or that the Paying Agent shall have failed to
perform its obligations under this Trust Agreement in any material respect. The
Paying Agent shall initially be the Property Trustee, and any co-paying agent
chosen by the Property Trustee, and acceptable to the Administrative Trustees
and the Depositor. Any Person acting as Paying Agent shall be permitted to
resign as Paying Agent upon 30 days' written notice to the Administrative
Trustees, the Property Trustee and the Depositor. In the event that the Property
Trustee shall no longer be the Paying Agent or a successor Paying Agent shall
resign or its authority to act be revoked, the Administrative Trustees shall
appoint a successor that is acceptable to the Property Trustee and the Depositor
to act as Paying Agent. The Administrative Trustees shall cause such successor
Paying Agent or any additional Paying Agent appointed by the Administrative
Trustees to execute and deliver to the Trustees an instrument in which such
successor Paying Agent or additional Paying Agent shall agree with the Trustees
that as Paying Agent, such successor Paying Agent or additional Paying Agent
shall hold all sums, if any, held by it for payment to the Securityholders in
trust for the benefit of the Securityholders entitled thereto until such sums
shall be paid to such Securityholders. The Paying Agent shall return all
unclaimed funds to the Property Trustee and, upon removal of a Paying Agent,
such Paying Agent shall also return all funds in its possession to the Property
Trustee. The provisions of Sections 8.2, 8.4 and 8.7 hereof shall apply to the
Property Trustee also in its role as Paying Agent, for so long as the Property
Trustee shall act as Paying Agent and, to the extent applicable, to any other
Paying Agent appointed hereunder. Any reference in this Agreement to the Paying
Agent shall include any co-paying agent unless the context requires otherwise.
SECTION 5.10 OWNERSHIP OF COMMON SECURITIES BY DEPOSITOR.
On the Closing Date, the Depositor shall acquire and retain beneficial
and record ownership of all of the Common Securities then issued by the Trust,
in an amount equal to at least 3% of the total capital of the Trust. To the
fullest extent permitted by law, any attempted transfer of the Common Securities
(other than a transfer in connection with a merger or consolidation of the
Depositor into another corporation pursuant to Section 12.1 of the Indenture)
shall be void. The Administrative Trustees shall cause each Common Securities
Certificate issued to the Depositor to contain a legend stating "TO THE EXTENT
PERMITTED BY APPLICABLE LAW THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT IN
COMPLIANCE WITH SECTION 5.10 OF THE TRUST AGREEMENT."
SECTION 5.11 TRUST SECURITIES CERTIFICATES.
(a) Trust Preferred Securities Certificates representing a
specified number of Trust Preferred Securities shall be issued to the
Persons entitled thereto in the form of Definitive Trust Preferred
Securities Certificates.
(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.
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(c) Nothing in this Section 5.11 withstanding, if at any time
subsequent to the date of issuance of the Definitive Trust Preferred
Securities Certificates, a majority (based upon Liquidation Amounts) of
the Trust Securities then Outstanding request registration of such
Definitive Trust Preferred Securities Certificates with the Depository
Trust Company ("DTC"), then all Holders shall submit the Definitive
Trust Preferred Securities Certificates to the Administrative Trustees
and the Administrative Trustees shall collect and otherwise do all
things reasonably required to so register such Trust Preferred
Securities with the DTC as book-entry only non-certificated Trust
Preferred Securities ("Registration"). Upon Registration, whether or
not the Definitive Trust Preferred Securities Certificates have been
submitted to the Administrative Trustees pursuant to this Section
5.11(c), all Definitive Trust Preferred Securities Certificates shall
be deemed cancelled and all Trust Securities then Outstanding shall be
issued as book-entry only non-certificated Trust Preferred Securities.
In the event the Trust Preferred Securities are to become book-entry in
accordance with this Section 5.11(c), the Depositor and the
Administrative Trustees shall be authorized to amend this Agreement, as
provided in Section 10.2(b), with the consent of the Securities
Registrar, such consent not to be unreasonably withheld, so as to
permit the issuance of a global Trust Preferred Certificate that (i)
shall represent, and shall be denominated in an amount equal to the
aggregate principal amount of the outstanding Trust Preferred
Securities, (ii) shall be registered in the name of DTC or its nominee,
(iii) shall be executed and authenticated in accordance with such
amendment and delivered by the Administrative Trustees to DTC or
pursuant to its instruction, and (iv) shall bear a legend substantially
as set forth in such amendment. Such amendment shall contain such other
provisions as are customary for declarations of trust containing
securities that may be issued in book-entry form.
SECTION 5.12 [RESERVED.]
SECTION 5.13 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 hereof, and the Securityholders shall not
have any right or title therein other than the undivided beneficial
interest in the assets of the Trust conferred by their Trust Securities
and they shall have no right to call for any partition or division of
property, profits or rights of the Trust except as described below. The
Trust Securities shall be personal property giving only the rights
specifically set forth therein and in this Trust Agreement. The Trust
Securities shall have no preemptive or similar rights. When issued and
delivered to Holders of the Trust Preferred Securities against payment
of the purchase price therefor, the Trust Preferred Securities shall be
fully paid and nonassessable preferred undivided beneficial interests
in the assets of the Trust. The Holders of the Trust Preferred
Securities, in their capacities as such, shall be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of
the State of Delaware.
(b) For so long as any Trust Preferred Securities remain
Outstanding, if, upon a Debenture Event of Default, the Debenture
Trustee fails or the holders of not less than 25% in principal amount
of the outstanding Debentures fail to declare the principal of all
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of the Debentures to be immediately due and payable, the Holders of at
least 25% in Liquidation Amount of the Trust Preferred Securities then
Outstanding shall have such right by a notice in writing to the
Depositor and the Debenture Trustee; and upon any such declaration such
principal amount of and the accrued interest on all of the Debentures
shall become immediately due and payable, provided that the payment of
principal and interest on such Debentures shall remain subordinated to
the extent provided in the Indenture.
(c) For so long as any Trust Preferred Securities remain
Outstanding, upon a Debenture Event of Default arising from the failure
to pay interest or principal on the Debentures, the Holders of any
Trust Preferred Securities then Outstanding shall, to the fullest
extent permitted by law, have the right to directly institute
proceedings for enforcement of payment to such Holders of principal of
or interest on the Debentures having a principal amount equal to the
Liquidation Amount of the Trust Preferred Securities of such Holders.
ARTICLE VI
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
SECTION 6.1 LIMITATIONS ON VOTING RIGHTS.
(a) Except as otherwise provided in this Section 6.1, in
Sections 5.13, 8.11 and 10.2 hereof and in the Indenture and as
otherwise required by law, no Holder of Trust Preferred Securities
shall have any right to vote or in any manner otherwise control the
administration, operation and management of the Trust or the
obligations of the parties hereto, nor shall anything herein set forth,
or contained in the terms of the Trust Securities Certificates, be
construed so as to constitute the Securityholders from time to time as
partners or members of an association.
(b) So long as any Debentures are held by the Property Trustee
on behalf of the Trust, the Trustees shall not (i) direct the time,
method and place of conducting any proceeding for any remedy available
to the Debenture Trustee, or executing any trust or power conferred on
the Debenture Trustee with respect to such Debentures; (ii) waive any
past default which is waivable under Article VII of the Indenture;
(iii) exercise any right to rescind or annul a declaration that the
principal of all the Debentures shall be due and payable; or (iv)
consent to any amendment, modification or termination of the Indenture
or the Debentures, where such consent shall be required, without, in
each case, obtaining the prior approval of the Holders of at least a
Majority in Liquidation Amount of all Outstanding Trust Preferred
Securities; provided, however, that where a consent under the Indenture
would require the consent of each holder of outstanding Debentures
affected thereby, no such consent shall be given by the Property
Trustee without the prior written consent of each Holder of Outstanding
Trust Preferred Securities. The Trustees shall not revoke any action
previously authorized or approved by a vote of the Holders of the
Outstanding Trust Preferred Securities, except by a subsequent vote of
the Holders of the Outstanding Trust Preferred Securities. The Property
Trustee shall notify each Holder
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of the Outstanding Trust Preferred Securities of any notice of default
received from the Debenture Trustee with respect to the Debentures. In
addition to obtaining the foregoing approvals of the Holders of the
Trust Preferred Securities, prior to taking any of the foregoing
actions, the Trustees shall, at the expense of the Depositor, obtain an
Opinion of Counsel experienced in such matters to the effect that the
Trust shall continue to be classified as a grantor trust and not as an
association taxable as a corporation for United States federal income
tax purposes on account of such action.
(c) If any proposed amendment to the Trust Agreement provides
for, or the Trustees otherwise propose to effect, (i) any action that
would adversely affect in any material respect the powers, preferences
or special rights of the Holders of the Trust Preferred Securities,
whether by way of amendment to the Trust Agreement or otherwise; or
(ii) the dissolution, winding-up or termination of the Trust, other
than pursuant to the terms of this Trust Agreement, then the Holders of
Outstanding Trust Preferred Securities as a class shall be entitled to
vote on such amendment or proposal and such amendment or proposal shall
not be effective except with the approval of the Holders of at least a
Majority in Liquidation Amount of the Outstanding Trust Preferred
Securities. No amendment to this Trust Agreement may be made if, as a
result of such amendment, the Trust would cease to be classified as a
grantor trust or would be classified as an association taxable as a
corporation for United States federal income tax purposes.
SECTION 6.2 NOTICE OF MEETINGS.
Notice of all meetings of the Holder/Holders of the Trust Preferred
Securities, stating the time, place and purpose of the meeting, shall be given
by the Administrative Trustees pursuant to Section 10.8 hereof to each Holder of
the Trust Preferred Securities 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 HOLDER/HOLDERS OF THE TRUST PREFERRED
SECURITIES.
(a) No annual meeting of Securityholders is required to be
held. The Administrative Trustees, however, shall call a meeting of
Securityholders to vote on any matter in respect of which
Holder/Holders of the Trust Preferred Securities are entitled to vote
upon the written request of the Holders of 25% of the Outstanding Trust
Preferred Securities (based upon their aggregate Liquidation Amount)
and the Administrative Trustees or the Property Trustee may, at any
time in their discretion, call a meeting of Holders of the Trust
Preferred Securities to vote on any matters as to which the Holders of
the Trust Preferred Securities are entitled to vote.
(b) Holders of record of 50% of the Outstanding Trust
Preferred Securities (based upon their aggregate Liquidation Amount),
present in person or by proxy, shall constitute a quorum at any meeting
of Securityholders.
(c) If a quorum is present at a meeting, an affirmative vote
by the Holders of the Trust Preferred Securities of record present, in
person or by proxy, holding not less
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than a majority of the Trust Preferred Securities (based upon their
aggregate Liquidation Amount) held by the Holders of the Trust
Preferred Securities of record present, either in person or by proxy,
at such meeting shall constitute the action of the Securityholders,
unless this Trust Agreement requires a greater number of affirmative
votes.
SECTION 6.4 VOTING RIGHTS.
Securityholders shall be entitled to one vote for each $1,000 of
Liquidation Amount represented by their Trust Securities (with any fractional
multiple thereof rounded up or down as the case may be to the closest integral
multiple) in respect of any matter as to which such Securityholders are entitled
to vote.
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.
Only Holders 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 not less than a majority of
all Outstanding Trust Securities (based upon their aggregate Liquidation Amount)
entitled to vote in respect of such action, or such larger proportion thereof
(based upon their aggregate Liquidation Amount) 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 or the Property Trustee may from time
to time fix a date, not more than 90 days prior to the date of any meeting of
Securityholders or the payment of Distribution or other action, as the case may
be, as a record date for the determination of the identity of the
Securityholders of record for such purposes.
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SECTION 6.8 ACTS OF SECURITYHOLDERS.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Trust
Agreement to be given, made or taken by Securityholders may be embodied
in and evidenced by one or more instruments of substantially similar
tenor signed by such Securityholders in person or by an agent duly
appointed in writing; and, except as otherwise expressly provided
herein, such action shall become effective when such instrument or
instruments are delivered to an Administrative Trustee. Such instrument
or instruments (and the action embodied therein and evidenced thereby)
are herein sometimes referred to as the "Act" of the Securityholders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Trust Agreement and conclusive in
favor of the Trustees, if made in the manner provided in this Section
6.8.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness
of such execution or by a certificate of a notary public or other
officer authorized by law to take acknowledgments of deeds, certifying
that the individual signing such instrument or writing acknowledged to
him the execution thereof. Where such execution is by a signer acting
in a capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority. The
fact and date of the execution of any such instrument or writing, or
the authority of the Person executing the same, may also be proved in
any other manner which any Trustee receiving the same deems sufficient.
(c) The ownership of Trust Preferred Securities shall be
proved by the Securities Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Securityholder of any Trust
Security shall bind every future Securityholder of the same Trust
Security and the Securityholder of every Trust Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by
the Trustees or the Trust in reliance thereon, whether or not notation
of such action is made upon such Trust Security.
(e) Without limiting the foregoing, a Securityholder entitled
hereunder to take any action hereunder with regard to any particular
Trust Security may do so with regard to all or any part of the
Liquidation Amount of such Trust Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment
with regard to all or any part of such Liquidation Amount.
(f) A Securityholder may institute a legal proceeding directly
against the Depositor under the Guarantee to enforce its rights under
the 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.
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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 at the principal
executive office of the Trust (as indicated in Section 2.2 hereof) by Holders of
the Trust Securities 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 BANK AND THE PROPERTY
TRUSTEE.
The Bank and the Property Trustee, each severally on behalf of and as
to itself, as of the date hereof, and each successor Property Trustee at the
time of the successor Property Trustee's acceptance of its appointment as
Property Trustee hereunder (in the case of a successor Property Trustee, the
term "Bank" as used herein shall be deemed to refer to such successor Property
Trustee in its separate capacity), hereby represents and warrants (as
applicable) for the benefit of the Depositor and the Securityholders that:
(a) the Bank is a national banking association with its
principal place of business in the State of Delaware and is duly
organized and validly existing under the laws of the United States of
America or, with respect to a successor Property Trustee, either a
national banking association or a state chartered bank and trust
company;
(b) the Bank and Property Trustee have full power, authority
and legal right to execute, deliver and perform their obligations under
this Trust Agreement and have taken all necessary action to authorize
the execution, delivery and performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed
and delivered by the Property Trustee and constitutes the valid and
legally binding agreement of the Property Trustee enforceable against
it in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to
general equity principles;
(d) the execution, delivery and performance by the Property
Trustee of this Trust Agreement has been duly authorized by all
necessary corporate or other action on the part of the Property Trustee
and does not require any approval of stockholders of the Bank and such
execution, delivery and performance shall not (i) violate the Bank's
charter or by-laws; (ii) violate any provision of, or constitute, with
or without notice or lapse of time, a default under, or result in the
creation or imposition of, any Lien on any properties included in the
Trust Property pursuant to the provisions of, any indenture, mortgage,
credit agreement, license or other agreement or instrument to which the
Property Trustee or the Bank is a party or by which it is bound; or
(iii) violate any law, governmental rule or regulation of the United
States or the State of Delaware, as the case may be, governing the
banking or trust powers of the Bank or the Property Trustee (as
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appropriate in context) or any order, judgment or decree applicable to
the Property Trustee or the Bank;
(e) neither the authorization, execution or delivery by the
Property Trustee of this Trust Agreement nor the consummation of any of
the transactions by the Property Trustee contemplated herein or therein
requires the consent or approval of, the giving of notice to, the
registration with or the taking of any other action with respect to any
governmental authority or agency under any existing federal law
governing the banking or trust powers of the Bank or the Property
Trustee, as the case may be, under the laws of the United States or the
State of Delaware, other than the filing of a Certificate of Trust with
the Secretary of State of the State of Delaware;
(f) there are no proceedings pending or, to the best of the
Property Trustee's knowledge, threatened against or affecting the Bank
or the Property Trustee in any court or before any governmental
authority, agency or arbitration board or tribunal which, individually
or in the aggregate, would materially and adversely affect the Trust or
would question the right, power and authority of the Property Trustee
to enter into or perform its obligations as one of the Trustees under
this Trust Agreement; and
(g) the Property Trustee is a Person eligible pursuant to the
Trust Indenture Act to act as such and has a combined capital and
surplus of at least $50,000,000.
SECTION 7.2 REPRESENTATIONS AND WARRANTIES OF THE DELAWARE BANK AND THE
RESIDENT TRUSTEE.
The Delaware Bank and the Resident Trustee, each severally on behalf of
and as to itself, as of the date hereof, and each successor Resident Trustee at
the time of the successor Resident Trustee's acceptance of appointment as
Resident Trustee hereunder (the term "Delaware Bank" being used to refer to such
successor Resident Trustee in its separate corporate capacity), hereby
represents and warrants (as applicable) for the benefit of the Depositor and the
Securityholders that:
(a) the Delaware Bank is either a national banking association
or Delaware banking corporation duly organized, validly existing and in
good standing under applicable laws of the United States of America and
the State of Delaware;
(b) the Resident Trustee has full power, authority and legal
right to execute, deliver and perform its obligations under this Trust
Agreement and has taken all necessary action to authorize the
execution, delivery and performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed
and delivered by the Resident Trustee and constitutes the valid and
legally binding agreement of the Resident Trustee enforceable against
it in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors, rights and to
general equity principles;
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(d) the execution, delivery and performance by the Resident
Trustee of this Trust Agreement has been duly authorized by all
necessary corporate or other action on the part of the Resident Trustee
and does not require any approval of stockholders of the Delaware Bank
and such execution, delivery and performance shall not (i) violate the
Delaware Bank's charter or by-laws; (ii) violate any provision of, or
constitute, with or without notice or lapse of time, a default under,
or result in the creation or imposition of, any Lien on any properties
included in the Trust Property pursuant to the provisions of, any
indenture, mortgage, credit agreement, license or other agreement or
instrument to which the Delaware Bank or the Resident Trustee is a
party or by which it is bound; or (iii) violate any law, governmental
rule or regulation of the United States or the State of Delaware, as
the case may be, governing the banking or trust powers of the Delaware
Bank or the Resident Trustee (as appropriate in context) or any order,
judgment or decree applicable to the Delaware Bank or the Resident
Trustee;
(e) neither the authorization, execution or delivery by the
Resident Trustee of this Trust Agreement nor the consummation of any of
the transactions by the Resident Trustee contemplated herein or therein
requires the consent or approval of, the giving of notice to, the
registration with or the taking of any other action with respect to any
governmental authority or agency under any existing federal law
governing the banking or trust powers of the Delaware Bank or the
Resident Trustee, as the case may be, under the laws of the United
States or the State of Delaware, other than the filing of the
Certificate of Trust with the Secretary of State of the State of
Delaware; and
(f) there are no proceedings pending or, to the best of the
Resident Trustee's knowledge, threatened against or affecting the
Delaware Bank or the Resident 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
Resident Trustee to enter into or perform its obligations as one of the
Trustees under this Trust Agreement.
SECTION 7.3 REPRESENTATIONS AND WARRANTIES OF DEPOSITOR.
The Depositor hereby represents and warrants for the benefit of the
Securityholders that:
(a) the Trust Securities Certificates issued on the Closing
Date on behalf of the Trust have been duly authorized and shall have
been duly and validly executed, issued and delivered by the
Administrative Trustees pursuant to the terms and provisions of, and in
accordance with the requirements of, this Trust Agreement and the
Securityholders shall be, as of such date, entitled to the benefits of
this Trust Agreement; and
(b) there are no taxes, fees or other governmental charges
payable by the Trust (or the Trustees on behalf of the Trust) under the
laws of the State of Delaware or any political subdivision thereof in
connection with the execution, delivery and performance by the Bank,
the Property Trustee or the Resident Trustee, as the case may be, of
this Trust Agreement.
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ARTICLE VIII
TRUSTEES
SECTION 8.1 NUMBER OF TRUSTEES.
The number of Trustees initially shall be Three (3), and:
(a) at any time before the issuance of any Trust Securities,
the Company may, by written instrument, increase or decrease the number
of Trustees; and
(b) after the issuance of any Trust Securities, the number of
Trustees may be increased or decreased by vote of the Holders of a
Majority in Liquidation Amount of the Common Securities voting as a
class at a meeting of the Holders of the Common Securities or pursuant
to written consent;
provided, however, that, the number of Trustees shall in no event be less than
Four (4); provided further that (1) one Resident Trustee, which, in the case of
a natural person, shall be a person who is a resident of the State of Delaware
or that, if not a natural person, is an entity which has its principal place of
business in the State of Delaware; (2) there shall be at least one Trustee who
is an officer of the Company and who shall serve as an Administrative Trustee;
and (3) one Trustee shall be the Property Trustee, and such Property Trustee may
also serve as Resident Trustee if it meets the applicable requirements.
(c) If a Trustee ceases to hold office for any reason and the
number of Administrative Trustees is not reduced pursuant to Section
8.1(a) or (b), or if the number of Trustees is increased pursuant to
Section 8.1(a) or (b), a vacancy shall occur. The vacancy shall be
filled with a Trustee appointed in accordance with Section 8.11 hereof.
(d) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not
operate to terminate, dissolve or 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 8.11 hereof, 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 8.2 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, also by the Trust Indenture Act, if applicable.
Notwithstanding the foregoing, no provision of this Trust Agreement
shall require any Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not
reasonably assured to it. No Administrative Trustee nor the Resident
Trustee shall be liable for its act or omissions
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hereunder except as a result of its own gross negligence or willful
misconduct. The Property Trustee's liability shall be determined under
the Trust Indenture Act, if applicable, and as provided by this Trust
Agreement. 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 8.2. To the extent that, at
law or in equity, a Trustee has duties (including fiduciary duties) and
liabilities relating thereto to the Trust or to the Securityholders,
such 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 a Trustee otherwise
existing at law or in equity, are agreed by the Depositor and the
Securityholders to replace such other duties and liabilities of a
Trustee, as the case may be.
(b) All payments made by the Property Trustee or a Paying
Agent in respect of the Trust Securities shall be made only from the
revenue and proceeds from the Trust Property and only to the extent
that there shall be sufficient revenue or proceeds from the Trust
Property to enable the Property Trustee or a Paying Agent to legally
make payments in accordance with the terms hereof. Each Securityholder,
by its acceptance of a Trust Security, agrees that it shall look solely
to the revenue and proceeds from the Trust Property to the extent
legally available for distribution to it as herein provided and that
the Trustees are not personally liable to it for any amount
distributable in respect of any Trust Security or for any other
liability in respect of any Trust Security. This Section 8.2(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, if applicable.
(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;
(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
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protections and limitations on liability afforded to
the Property Trustee under this Trust Agreement and
the Trust Indenture Act, if applicable;
(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 hereof 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 negligence,
default or misconduct of the Administrative Trustees
or the Depositor.
SECTION 8.3 CERTAIN NOTICES.
(a) Within five Business Days after a Responsible Officer of
the Property Trustee has actual knowledge of the occurrence of any
Event of Default, the Property Trustee shall transmit, in the manner
and to the extent provided in Section 10.8 hereof, notice of such Event
of Default to the Securityholders, the Administrative Trustees and the
Depositor, unless such Event of Default shall have been cured or
waived. For purposes of this Section 8.3, the term "Event of Default"
means any event that is, or after notice or lapse of time or both would
become, an Event of Default.
(b) The Administrative Trustees shall transmit, to the
Securityholders in the manner and to the extent provided in Section
10.8 hereof, notice of the Depositor's election to begin or further
extend an Extended Interest Payment Period on the Debentures (unless
such election shall have been revoked) within the time specified for
transmitting such notice to the holders of the Debentures pursuant to
the Indenture as originally executed.
SECTION 8.4 CERTAIN RIGHTS OF THE PROPERTY TRUSTEE.
(a) the Property Trustee may rely and shall be protected in
acting or refraining from acting in good faith upon any resolution,
Opinion of Counsel, certificate, written representation of a Holder or
transferee, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent,
order, appraisal, bond, debenture, note, other evidence of indebtedness
or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(b) if (i) in performing its duties under this Trust Agreement
the Property Trustee is required to decide between alternative courses
of action; or (ii) in construing any of the provisions of this Trust
Agreement, the Property Trustee finds the same ambiguous or
inconsistent with other provisions contained herein; or (iii) the
Property Trustee is unsure of the application of any provision of this
Trust Agreement, then, except as to any matter as to which the Holders
are entitled to vote under the terms of this
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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 (10) Business
Days after it has delivered such notice, or such reasonably shorter
period of time set forth in such notice (which to the extent
practicable shall not be less than two (2) Business Days), it may, but
shall be under no duty to, take or refrain from taking such action not
inconsistent with this Trust Agreement as it shall deem advisable and
in the best interests of the Securityholders, in which event the
Property Trustee shall have no liability except for its own bad faith,
negligence or willful misconduct;
(c) any direction or act of the Depositor or the
Administrative Trustees contemplated by this Trust Agreement shall be
sufficiently evidenced by an Officers' Certificate;
(d) whenever in the administration of this Trust Agreement,
the Property Trustee shall deem it desirable that a matter be
established before undertaking, suffering or omitting any action
hereunder, the Property Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its part,
request and conclusively rely upon an Officer's Certificate which, upon
receipt of such request, shall be promptly delivered by the Depositor
or the Administrative Trustees;
(e) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any
financing or continuation statement, or, except as provided in Section
4.5 hereof or any filing under tax or securities laws) or any
rerecording, refiling or reregistration thereof;
(f) the Property Trustee may consult with counsel of its
choice (which counsel may be counsel to the Depositor or any of its
Affiliates, and may include any of its employees) and the written
advice of such counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon and, in accordance with
such advice, the Property Trustee shall have the right at any time to
seek instructions concerning the administration of this Trust Agreement
from any court of competent jurisdiction;
(g) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Trust
Agreement at the request or direction of any of the Securityholders
pursuant to this Trust Agreement, unless such Securityholders shall
have offered to the Property Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction;
(h) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond, debenture, note or other evidence
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of indebtedness or other paper or document, but the Property Trustee
may make such further inquiry or investigation into such facts or
matters as it may determine in its sole discretion to be appropriate;
(i) the Property Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through its agents or attorneys, provided that the Property Trustee
shall be responsible for its own negligence or recklessness with
respect to selection of any agent or attorney appointed by it
hereunder;
(j) whenever in the administration of this Trust Agreement the
Property Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder the Property Trustee (i) may request instructions from the
Holders of the Trust Securities which instructions may only be given by
the Holders of the same proportion in Liquidation Amount of the Trust
Securities as would be entitled to direct the Property Trustee under
the terms of the Trust Securities in respect of such remedy, right or
action; (ii) may refrain from enforcing such remedy or right or taking
such other action until such instructions are received; and (iii) shall
be protected in acting in accordance with such instructions; and
(k) except as otherwise expressly provided by this Trust
Agreement, the Property Trustee shall not be under any obligation to
take any action that is discretionary under the provisions of this
Trust Agreement. No provision of this Trust Agreement shall be deemed
to impose any duty or obligation on the Property Trustee to perform any
act or acts or exercise any right, power, duty or obligation conferred
or imposed on it, in any jurisdiction in which it shall be illegal, or
in which the Property Trustee shall be unqualified or incompetent in
accordance with applicable law, to perform any such act or acts, or to
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 8.5 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 8.6 MAY HOLD SECURITIES.
Any Trustee or any other agent of any Trustee or the Trust, in its
individual or any other capacity, may become the owner or pledgee of Trust
Securities and, subject to Sections 8.9 and 8.14 hereof and except as provided
in the definition of the term "Outstanding" in Article I, may otherwise deal
with the Trust with the same rights it would have if it were not a Trustee or
such other agent.
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SECTION 8.7 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), in the case of the
Property Trustee, as set forth in a written agreement between the
Depositor and the Property Trustee;
(b) except as otherwise expressly provided herein, to
reimburse the Trustees upon request for all documented reasonable
expenses, disbursements and advances incurred or made by the Trustees
in accordance with any provision of this Trust Agreement (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to such Trustee's negligence, bad faith or
willful misconduct (or, in the case of the Administrative Trustees or
the Resident Trustee, any such expense, disbursement or advance as may
be attributable to its, his or her gross negligence, bad faith or
willful misconduct); and
(c) to indemnify each of the Trustees or any predecessor
Trustee for, and to hold the Trustees harmless against, any loss,
damage, claims, liability, penalty or expense of any kind or nature
whatsoever, arising out of or in connection with the acceptance or
administration of this Trust Agreement, including the costs and
expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder, except any such expense, disbursement or advance as
may be attributable to such Trustee's negligence, bad faith or willful
misconduct (or, in the case of the Administrative Trustees or the
Resident Trustee, any such expense, disbursement or advance as may be
attributable to its, his or her gross negligence, bad faith or willful
misconduct).
No Trustee, other than the Property Trustee, may claim any Lien or
charge on any Trust Property as a result of any amount due and unpaid pursuant
to this Section 8.7.
SECTION 8.8 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, as
applicable, 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 8.8, 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 8.8, it shall resign
immediately in the manner and with the effect hereinafter specified in
this Article VIII. The Property Trustee and the Resident Trustee may be
the same Person.
(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
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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 Resident Trustee with
respect to the Trust Securities. The Resident 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 8.9 CONFLICTING INTERESTS.
If the Property Trustee has or shall acquire any "conflicting interest"
within the meaning of Section 310(b) of the Trust Indenture Act, the Property
Trustee and the Holder of the Common Securities (as if it were the obligor
referred to in Section 310(b) of the Trust Indenture Act) shall in all respects
comply with the provisions of Section 310(b) of the Trust Indenture Act, if the
Trust Indenture Act is then applicable to the Indenture.
SECTION 8.10 CO-TRUSTEES AND SEPARATE TRUSTEE.
(a) Unless an Event of Default shall have occurred and be
continuing, at any time or times, for the purpose of meeting the legal
requirements of the Trust Indenture Act, if then applicable, or of any
jurisdiction in which any part of the Trust Property may at the time be
located, the Depositor shall have power to appoint, and upon the
written request of the Property Trustee, the Depositor shall for such
purpose join with the Property Trustee in the execution, delivery and
performance of all instruments and agreements necessary or proper to
appoint, one or more Persons approved by the Property Trustee either to
act as co-trustee, jointly with the Property Trustee, of all or any
part of such Trust Property, or to the extent required by law to act as
separate trustee of any such property, in either case with such powers
as may be provided in the instrument of appointment, and to vest in
such Person or Persons in the capacity aforesaid, any property, title,
right or power deemed necessary or desirable, subject to the other
provisions of this Section 8.10. 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 8.10 shall either be (i) a natural person who is at least
21 years of age and a resident of the United States; or (ii) a legal
entity with its principal place of business in the United States that
shall act through one or more persons authorized to bind such entity.
(b) Should any written instrument from the Depositor be
required by any co-trustee or separate trustee so appointed for more
fully confirming to such co-trustee or separate trustee such property,
title, right, or power, any and all such instruments shall, conform to
the terms set forth herein.
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(c) Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject to the
following terms, namely:
(i) The Trust Securities shall be executed and delivered
and all rights, powers, duties and obligations
hereunder in respect of the custody of securities,
cash and other personal property held by, or required
to be deposited or pledged with, the Trustees
specified hereunder, shall be exercised, solely by
such Trustees and not by such co-trustee or separate
trustee.
(ii) The rights, powers, duties and obligations hereby
conferred or imposed upon the Property Trustee in
respect of any property covered by such appointment
shall be conferred or imposed upon and exercised or
performed by the Property Trustee or by the Property
Trustee and such co-trustee or separate trustee
jointly, as shall be provided in the instrument
appointing such co-trustee or separate trustee,
except to the extent that under any law of any
jurisdiction in which any particular act is to be
performed, the Property Trustee shall be incompetent
or unqualified to perform such act, in which event
such rights, powers, duties and obligations shall be
exercised and performed by such co-trustee or
separate trustee.
(iii) The Property Trustee at any time, by an instrument in
writing executed by it, with the written concurrence
of the Depositor, may accept the resignation of or
remove any co-trustee or separate trustee appointed
under this Section 8.10, and, in case a Debenture
Event of Default has occurred and is continuing, the
Property Trustee shall have the power to accept the
resignation of, or remove, any such co-trustee or
separate trustee without the concurrence of the
Depositor. Upon the written request of the Property
Trustee, the Depositor shall join with the Property
Trustee in the execution, delivery and performance of
all instruments and agreements necessary or proper to
effectuate such resignation or removal. A successor
to any co-trustee or separate trustee so resigned or
removed may be appointed in the manner provided in
this Section 8.10.
(iv) No co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of
the Property Trustee or any other trustee hereunder.
(v) The Property Trustee shall not be liable by reason of
any act of a co-trustee or separate trustee.
(vi) Any Act of Holders delivered to the Property Trustee
shall be deemed to have been delivered to each such
co-trustee and separate trustee.
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SECTION 8.11 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of any Trustee (the "Relevant
Trustee") and no appointment of a successor Trustee pursuant to this
Article VIII shall become effective until the acceptance of appointment
by the successor Trustee in accordance with the applicable requirements
of Section 8.12 hereof.
(b) Subject to the immediately preceding paragraph, the
Relevant Trustee may resign at any time with respect to the Trust
Securities by giving written notice thereof to the Securityholders. If
the instrument of acceptance by the successor Trustee required by
Section 8.12 shall not have been delivered to the Relevant Trustee
within 30 days after the giving of such notice of resignation, the
Relevant Trustee may petition, at the expense of the Depositor, any
court of competent jurisdiction for the appointment of a successor
Relevant Trustee with respect to the Trust Securities.
(c) Unless a Debenture Event of Default shall have occurred
and be continuing, any Trustee may be removed at any time by Act of the
Holder of Common Securities. If a Debenture Event of Default shall have
occurred and be continuing, the Property Trustee or the Resident
Trustee, or both of them, may be removed at such time by Act of the
Holders of a Majority in Liquidation Amount of the Trust Preferred
Securities, delivered to the Relevant Trustee (in its individual
capacity and on behalf of the Trust). An Administrative Trustee may be
removed by Act of the Holder of the Common Securities at any time.
(d) If any Trustee shall resign, be removed or become
incapable of acting as Trustee, or if a vacancy shall occur in the
office of any Trustee for any cause, at a time when no Debenture Event
of Default shall have occurred and be continuing, the Holder of the
Common Securities, by Act of the Holder of the Common Securities
delivered to the retiring Trustee, shall promptly appoint a successor
Trustee or Trustees with respect to the Trust Securities and the Trust,
and the successor Trustee shall comply with the applicable requirements
of Section 8.12 hereof. If the Property Trustee or the Resident Trustee
shall resign, be removed or become incapable of continuing to act as
the Property Trustee or the Resident Trustee, as the case may be, at a
time when a Debenture Event of Default shall have occurred and is
continuing, the Holders, by Act of the Securityholders of a Majority in
Liquidation Amount of the Trust Preferred Securities then Outstanding
delivered to the retiring Relevant Trustee, shall promptly appoint a
successor Relevant Trustee or Trustees with respect to the Trust
Securities and the Trust, and such successor Trustee shall comply with
the applicable requirements of Section 8.12 hereof. 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 Holder of the Common
Securities, by Act of the Holder of the Common Securities delivered to
an Administrative Trustee, shall promptly appoint a successor
Administrative Trustee or Administrative Trustees with respect to the
Trust Securities and the Trust, and such successor Administrative
Trustee or Administrative Trustees shall comply with the applicable
requirements of Section 8.12 hereof. If no successor Relevant Trustee
with respect to the Trust Securities shall have been so appointed by
the Holder of the Common Securities or the Holders of the Trust
Preferred Securities and accepted appointment in the manner required by
Section 8.12 hereof, any Securityholder who has been a Securityholder
of Trust Securities for at least the past six
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(6) consecutive months on behalf of himself and all others similarly
situated may petition a court of competent jurisdiction for the
appointment of a successor Relevant Trustee with respect to the Trust
Securities.
(e) The Administrative Trustees 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 hereof and shall give notice to the Depositor. Each notice
shall include the name of the successor Relevant Trustee and the
address of its Corporate Trust Office if it is the Property Trustee.
(f) Notwithstanding the foregoing or any other provision of
this Trust Agreement, in the event any Administrative Trustee or a
Resident 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 the
successor in each case being a Person who satisfies the eligibility
requirement for Administrative Trustees or Resident Trustee, as the
case may be, set forth in Section 8.8 hereof).
SECTION 8.12 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor
Relevant Trustee with respect to the Trust Securities and the Trust,
the retiring Relevant Trustee and each successor Relevant Trustee with
respect to the Trust Securities shall execute and deliver an instrument
hereto wherein each successor Relevant Trustee shall accept such
appointment and which shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Relevant Trustee all the rights, powers, trusts and duties of
the retiring Relevant Trustee with respect to the Trust Securities and
the Trust and upon the execution and delivery of such instrument the
resignation or removal of the retiring Relevant Trustee shall become
effective to the extent provided therein and each such successor
Relevant Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the
retiring Relevant Trustee with respect to the Trust Securities and the
Trust; but, on request of the Trust or any successor Relevant Trustee
such retiring Relevant Trustee shall duly assign, transfer and deliver
to such successor Relevant Trustee all Trust Property, all proceeds
thereof and money held by such retiring Relevant Trustee hereunder with
respect to the Trust Securities and the Trust.
(b) Upon request of any such successor Relevant Trustee, the
Trust shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Relevant Trustee
all such rights, powers and trusts referred to in the immediately
preceding paragraph, as the case may be.
(c) No successor Relevant Trustee shall accept its appointment
unless at the time of such acceptance such successor Relevant Trustee
shall be qualified and eligible under this Article VIII.
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SECTION 8.13 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS.
Any Person into which the Property Trustee, the Resident Trustee or any
Administrative Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which such Relevant Trustee shall be a party, or any Person
succeeding to all or substantially all the corporate trust business of such
Relevant Trustee, shall be the successor of such Relevant Trustee hereunder,
provided such Person shall be otherwise qualified and eligible under this
Article VIII, without the execution or filing of any paper or any further act on
the part of any of the parties hereto.
SECTION 8.14 PREFERENTIAL COLLECTION OF CLAIMS AGAINST DEPOSITOR OR
TRUST.
If and when the Property Trustee or the Resident Trustee shall be or
become a creditor of the Depositor or the Trust (or any other obligor upon the
Debentures or the Trust Securities), the Property Trustee or the Resident
Trustee, as the case may be, shall be subject to and shall take all actions
necessary in order to comply with the provisions of the Trust Indenture Act, if
applicable, regarding the collection of claims against the Depositor or Trust
(or any such other obligor).
SECTION 8.15 REPORTS BY PROPERTY TRUSTEE.
(a) 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,
if then applicable, at the times and in the manner provided pursuant
thereto (it being understood that, with respect to Section 313 thereof,
no such report shall be required if none of the events set forth in
such Section has occurred during the period to which such report would
relate).
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Property Trustee with the
Depositor.
(c) The Property Trustee covenants and agrees to transmit by
mail, first class postage prepaid, to the Holders of Trust Preferred
Securities, as their names and addresses appear on the Securities
Register, any information, documents and reports required to be
transmitted by the Company pursuant to subsection (b) of Section 8.16,
as soon as practicable after the receipt of such information from the
Company.
SECTION 8.16 REPORTS TO THE PROPERTY TRUSTEE.
(a) If applicable, 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 applicable, 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.
(b) The Company covenants and agrees to transmit to the
Property Trustee in the same form as filed with the Federal Reserve (i)
its annual audited consolidated financial statements within 90 days
following the end of its fiscal year and (ii) its quarterly
consolidated financial statements within 45 days after the end of the
first three
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fiscal quarters of each fiscal year; provided, however, that if
subsequent to the date hereof, the Company shall become subject to the
reporting obligations under Section 13(a) or Section 15(d) of the
Exchange Act, the Company shall instead transmit to the Property
Trustee the information, documents and reports the Company is required
to file with the Securities and Exchange Commission pursuant to Section
13(a) or Section 15(d) of the Exchange Act.
SECTION 8.17 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
If at any time after the date hereof the Indenture is required to be
qualified under the Trust Indenture Act, 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 8.18 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) hereof; 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.
SECTION 8.19 VOTING.
Except as otherwise provided in this Trust Agreement, the consent or
approval of the Administrative Trustees shall require consent or approval by not
less than a majority of the Administrative Trustees, unless there are only two,
in which case both must consent.
ARTICLE IX
TERMINATION, LIQUIDATION AND MERGER
SECTION 9.1 TERMINATION UPON EXPIRATION DATE.
Unless earlier dissolved, the Trust shall automatically dissolve on the
date which is one month from receipt of final payment due under the Indenture
(the "Expiration Date") and thereafter shall distribute the Trust Property in
accordance with Section 9.4 hereof.
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SECTION 9.2 EARLY TERMINATION.
The first to occur of any of the following events is an "Early
Termination Event", at which time the Trust shall dissolve and commence winding
up its affairs:
(a) the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation of, the Depositor;
(b) delivery of written direction to the Property Trustee by
the Depositor at any time (which direction is wholly optional and
within the discretion of the Depositor, subject to Depositor having
received prior approval of the Board of Governors of the Federal
Reserve System if so required under applicable guidelines, policies or
regulations thereof) to dissolve the Trust and distribute the
Debentures to the Securityholders in exchange for the Trust Securities
in accordance with Section 9.4 hereof;
(c) the redemption of all of the Trust Preferred Securities in
connection with the redemption of all of the Debentures (whether upon a
Debenture Redemption Date or the maturity of the Debentures); or
(d) the existence of an order for dissolution of the Trust
shall have been entered 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 hereof, or upon the
redemption of all of the Trust Securities pursuant to Section 4.2 hereof, of all
amounts required to be distributed hereunder upon the final payment of the Trust
Securities; (b) the payment of any expenses owed by the Trust; (c) the discharge
of all administrative duties of the Administrative Trustees, including the
performance of any tax reporting obligations with respect to the Trust or the
Securityholders; and (d) the filing of a Certificate of Cancellation by the
Administrative Trustees under the Delaware Business Trust Act.
SECTION 9.4 LIQUIDATION.
(a) If an Early Termination Event specified in clause (a),
(b), or (d) of Section 9.2 occurs or upon the Expiration Date, the
Trust shall be liquidated by the Trustees in accordance with their
respective duties hereunder as provided herein 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 less than 30 nor more
than 60 days prior to the Liquidation Date to each Holder of Trust
Securities at such Holder's address appearing in the Securities
Register. All notices of liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date, the
Trust Securities shall no longer be deemed to be
Outstanding and any Trust Securities Certificates
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not surrendered for exchange shall be deemed to
represent a Like Amount of Debentures; and
(iii) provide such information with respect to the
mechanics by which Holders may exchange Trust
Securities Certificates for Debentures, or, if
Section 9.4(d) applies, receive a Liquidation
Distribution, as the Administrative Trustees or the
Property Trustee shall in good ▇▇▇▇▇ ▇▇▇▇
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 Property Trustee shall establish a record date
for such distribution (which shall be not more than 45 days prior to
the Liquidation Date) and, either itself acting as exchange agent or
through the appointment of a separate exchange agent, shall establish
such procedures as it shall deem appropriate to effect the distribution
of Debentures in exchange for the Outstanding Trust Securities
Certificates.
(c) Except where Section 9.2(c) or 9.4(d) applies, after the
Liquidation Date, (i) the Trust Securities shall no longer be deemed to
be Outstanding; (ii) certificates representing a Like Amount of
Debentures shall be issued to Holders of Trust Securities Certificates
upon surrender of such certificates to the Administrative Trustees or
their agent for exchange; (iii) any Trust Securities Certificates not
so surrendered for exchange shall be deemed to represent a Like Amount
of Debentures, accruing interest at the rate provided for in the
Debentures from the last Distribution Date on which a Distribution was
made on such Trust Securities Certificates until such certificates are
so surrendered (and until such certificates are so surrendered, no
payments of interest or principal shall be made to Holders of Trust
Securities Certificates with respect to such Debentures); and (iv) all
rights of Securityholders holding Trust Securities shall cease, except
the right of such Securityholders to receive Debentures upon surrender
of Trust Securities Certificates.
(d) In the event that, notwithstanding the other provisions of
this Section 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 in good faith by
the Property Trustee not to be practical, the Trust Property shall be
liquidated, and the Trust shall be dissolved, wound-up or terminated,
by the Property Trustee in such manner as the Property Trustee
determines in good faith. In such event, on the date of the dissolution
of the Trust, Securityholders shall be entitled to receive out of the
assets of the Trust available for distribution to Securityholders,
after satisfaction of liabilities to creditors of the Trust as provided
by applicable law, an amount equal to the Liquidation Amount per Trust
Security plus accumulated and unpaid Distributions thereon to the date
of payment (such amount being the "Liquidation Distribution"). If, upon
any such dissolution, the Liquidation Distribution can be paid only in
part because the Trust has insufficient assets available to pay in full
the aggregate Liquidation Distribution, then, subject to the next
succeeding sentence, the amounts payable by the Trust on the Trust
Securities shall be paid on a pro rata basis (based upon Liquidation
Amounts). The Holder of the Common Securities shall be entitled to
receive Liquidation Distributions upon any such dissolution pro rata
(determined as aforesaid) with Holders
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of Trust Preferred Securities, except that, if a Debenture Event of
Default has occurred and is continuing, the Trust Preferred Securities
shall have a priority over the 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 Person, 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 Trust
Preferred Securities, the Property Trustee or the Resident Trustee, the Trust
may merge with or into, consolidate, amalgamate, be replaced by or convey,
transfer or lease its properties and assets substantially as an entirety to a
trust organized as such under the laws of any state; provided, that:
(a) such successor entity either:
(i) expressly assumes all of the obligations of the Trust
with respect to the Trust Preferred Securities; or
(ii) substitutes for the Trust Preferred Securities other
securities having substantially the same terms as the
Trust Preferred Securities (the "Successor
Securities") so long as the Successor Securities rank
the same as the Trust Preferred Securities rank in
priority with respect to distributions and payments
upon liquidation, redemption and otherwise.
(b) the Depositor expressly appoints a trustee of such
successor entity possessing substantially the same powers and duties as
the Property Trustee as the holder of the Debentures;
(c) the Successor Securities are listed or traded, or any
Successor Securities shall be listed or traded upon notification of
issuance, on any national securities exchange or other organization on
which the Trust Preferred Securities are then listed or quoted, if any;
(d) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights,
preferences and privileges of the Holders of the Trust Preferred
Securities (including any Successor Securities) in any material
respect;
(e) such successor entity has a purpose substantially
identical to that of the Trust;
(f) prior to such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, the Depositor has received
an Opinion of Counsel to the effect that:
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(i) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and
privileges of the Holders of the Trust Preferred
Securities (including any Successor Securities) in
any material respect; and
(ii) following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, neither
the Trust nor such successor entity shall be required
to register as an "investment company" under the
Investment Company Act; and
(g) the Depositor owns all of the common securities of such
successor entity and guarantees the obligations of such successor
entity under the Successor Securities at least to the extent provided
by the Preferred Securities Guarantee.
Notwithstanding the foregoing, the Trust shall not, except with the consent of
Holders of 100% in Liquidation Amount of the Trust Preferred Securities,
consolidate, amalgamate, merge with or into, or be replaced by or convey,
transfer or lease its properties and assets substantially as an entirety to any
other Person or permit any other Person to consolidate, amalgamate, merge with
or into, or replace it if such consolidation, amalgamation, merger or
replacement would cause the Trust or the successor entity to be classified as
other than a grantor trust for United States federal income tax purposes.
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 Administrative Trustees and the Depositor, without the consent of
any Securityholders, the Property Trustee or the Resident Trustee, (i)
as provided in Section 8.12 hereof with respect to acceptance of
appointment by a successor Trustee; (ii) 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, that shall not
be inconsistent with the other provisions of this Trust Agreement; or
(iii) to modify, eliminate or add to any provisions of this Trust
Agreement to such extent as shall be necessary to ensure that the Trust
shall be classified for United States federal income tax purposes as a
grantor trust at all times that any Trust Securities are outstanding or
to ensure that the Trust shall not be required
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to register as an "investment company" under the Investment Company
Act; provided, however, that in the case of clause (ii), such action
shall not adversely affect in any material respect the interests of any
Securityholder, and any amendments of this Trust Agreement shall become
effective when notice thereof is given to the Securityholders, the
Property Trustee and the Resident Trustee.
(b) Except as provided in Section 6.1(c) or Section 10.2(c)
hereof, any provision of this Trust Agreement may be amended by the
Administrative Trustees and the Depositor (i) with the consent of
Securityholders representing not less than a majority (based upon
Liquidation Amounts) of the Trust Securities then Outstanding; and (ii)
upon receipt by the Trustees of an Opinion of Counsel to the effect
that such amendment or the exercise of any power granted to the
Trustees in accordance with such amendment shall not affect the Trust's
status as a grantor trust for United States federal income tax purposes
or the Trust's exemption from status of an "investment company" under
the Investment Company Act.
(c) In addition to and notwithstanding any other provision in
this Trust Agreement, without the consent of each affected
Securityholder (such consent being obtained in accordance with Section
6.3 or Section 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 Investment Company Act or to fail or cease to be classified as a
grantor trust for United States federal income tax purposes.
(e) Notwithstanding anything in this Trust Agreement to the
contrary, without the consent of the Depositor, this Trust Agreement
may not be amended in a manner which imposes any additional obligation
on the Depositor.
(f) In the event that any amendment to this Trust Agreement is
made, the Administrative Trustees shall promptly provide to the
Depositor a copy of such amendment.
(g) Notwithstanding any other provision of this Trust
Agreement, without the consent of the Property Trustee and/or the
Resident Trustee, as applicable, this Trust Agreement may not be
amended in any manner, and neither the Property Trustee nor the
Resident Trustee shall be required to enter into any amendment to this
Trust Agreement, which affects the rights, privileges, powers, duties,
obligations or immunities of the Property Trustee or the Resident
Trustee under this Trust Agreement or the Trust
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Securities. The Property Trustee shall be entitled to receive an
Opinion of Counsel and an Officers' Certificate stating that any
proposed amendment to this Trust Agreement is in compliance with this
Trust Agreement.
SECTION 10.3 SEVERABILITY.
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 (WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES
THEREOF). PROVIDED, HOWEVER, THAT THERE SHALL NOT BE APPLICABLE TO THE PARTIES
HEREUNDER OR THIS TRUST AGREEMENT ANY PROVISION OF THE LAWS (COMMON OR
STATUTORY) OR THE STATE OF DELAWARE PERTAINING TO TRUSTS THAT RELATE TO OR
REGULATE, IN A MANNER INCONSISTENT WITH THE TERMS HEREOF, (A) THE FILING WITH
ANY COURT OR GOVERNMENTAL BODY OR AGENCY OF TRUSTEE ACCOUNTS OR SCHEDULES OF
TRUSTEE FEES AND CHARGES, (B) AFFIRMATIVE REQUIREMENTS TO POST BONDS FOR
TRUSTEES, OFFICERS, AGENTS OR EMPLOYEES OF A TRUST, (C) THE NECESSITY FOR
OBTAINING COURT OR OTHER GOVERNMENTAL APPROVAL CONCERNING THE ACQUISITION,
HOLDING OR DISPOSITION OF REAL OR PERSONAL PROPERTY, (D) FEES OR OTHER SUMS
PAYABLE TO TRUSTEES, OFFICERS, AGENTS OR EMPLOYEES OF A TRUST, (E) THE
ALLOCATION OF RECEIPTS AND EXPENDITURES TO INCOME OR PRINCIPAL (F) RESTRICTIONS
OR LIMITATIONS ON THE PERMISSIBLE NATURE, AMOUNT OR CONCENTRATION OF TRUST
INVESTMENTS OR REQUIREMENTS RELATING TO THE TITLING, STORAGE OR OTHER MANNER OF
HOLDING OR INVESTING TRUST ASSETS OR (G) THE ESTABLISHMENT OF FIDUCIARY OR OTHER
STANDARDS OF RESPONSIBILITY OR LIMITATIONS ON THE ACTS OR POWERS OF TRUSTEES
THAT ARE INCONSISTENT WITH THE LIMITATIONS OR AUTHORITIES AND POWERS OF THE
TRUSTEES HEREUNDER AS SET FORTH OR REFERENCED IN THIS TRUST AGREEMENT. SECTION
3540 OF TITLE 12 OF THE DELAWARE CODE SHALL NOT APPLY TO THE TRUST. THE PARTIES
HERETO HEREBY CONSENT TO (i) THE NON-EXCLUSIVE JURISDICTION OF THE COURTS OF THE
STATE OF DELAWARE AND (ii) SERVICE OF PROCESS BY MAIL IN ACCORDANCE WITH SECTION
10.8 HEREOF.
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 which is a Business Day, except that, if
such Business Day is in the next
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succeeding calendar year, such payment shall be made on the immediately
preceding Business Day (and without any reduction of interest or any other
payment in respect of any such acceleration), in each case with the same force
and effect as though made on the date fixed for such payment, and no
distribution shall accumulate thereon for the period after such date.
SECTION 10.6 SUCCESSORS.
This Trust Agreement shall be binding upon and shall inure to the
benefit of any successor to the Depositor, the Trust or the Relevant Trustee(s),
including any successor by operation of law. Except in connection with a
consolidation, merger or sale involving the Depositor that is permitted under
Article XII of the Indenture and pursuant to which the assignee agrees in
writing to perform the Depositor's obligations hereunder, the Depositor shall
not assign its obligations hereunder.
SECTION 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 Holder of the Trust Preferred Securities, to such Holder of the Trust
Preferred Securities as such Securityholder's name and address may appear on the
Securities Register; and (b) in the case of the Holder of the Common Securities
or the Depositor, to United Bancorporation of Alabama, Inc., P. O. Box 8, ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Chief Executive
Officer, facsimile no.: (▇▇▇) ▇▇▇-▇▇▇▇. Any notice to Holders of the Trust
Preferred Securities 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 Resident Trustee, the Property Trustee or the Administrative
Trustees shall be given in writing addressed (until another address is published
by the Trust) as follows: (a) with respect to the Property Trustee to ▇▇▇▇▇
Fargo Bank, National Association, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust Administration; (b) with respect to
the Resident Trustee, to ▇▇▇▇▇ Fargo Delaware Trust Company at ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇; and (c) with respect to the Trust
or the Administrative Trustees, to them at the address above for notices to the
Depositor, marked "Attention: Administrative Trustees of Capital Trust." Such
notice, demand or other communication to or upon the Trust, the Property
Trustee, the Resident Trustee or the Administrative Trustees shall be deemed to
have been
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sufficiently given or made only upon actual receipt of the writing by the Trust,
the Property Trustee, the Resident Trustee or the Administrative Trustees.
SECTION 10.9 AGREEMENT NOT TO PETITION.
Each of the Trustees and the Depositor agrees for the benefit of the
Securityholders that, until at least one year and one day after the Trust has
been terminated in accordance with Article IX, they shall not file, or join in
the filing of, a petition against the Trust under any bankruptcy, insolvency,
reorganization or other similar law (including, without limitation, the United
States Bankruptcy Code of 1978, as amended, collectively, "Bankruptcy Laws") or
otherwise join in the commencement of any proceeding against the Trust under any
Bankruptcy Law. In the event the Depositor or any of the Trustees takes action
in violation of this Section 10.9, the Property Trustee agrees, for the benefit
of Securityholders, that at the expense of the Depositor (which expense shall be
paid prior to the filing), it shall file an answer with the bankruptcy court or
otherwise properly contest the filing of such petition by the Depositor or such
Trustee against the Trust or the commencement of such action and raise the
defense that the Depositor or such Trustee has agreed in writing not to take
such action and should be estopped and precluded therefrom. The provisions of
this Section 10.9 shall survive the termination of this Trust Agreement.
SECTION 10.10 APPLICABILITY OF TRUST INDENTURE ACT; CONFLICT.
(a) Unless and until the Indenture is required to be qualified
under the Trust Indenture Act so that the provisions thereof are
applicable, (i) the provisions of the Trust Indenture Act do not apply
to this Trust Agreement and are not given effect; and (ii)
notwithstanding any other provision of this Trust Agreement (including
without limitation Sections 8.2(c), 8.4(b) and (i), 8.7(b) and 8.7(c)
hereof), no Trustee shall be liable for its own simple negligence, but
shall only be liable for its own gross negligence.
(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,
and the Trust Indenture Act is then applicable to this Trust Agreement,
such required provision shall control. If any provision of this Trust
Agreement modifies or excludes any provision of the Trust Indenture Act
which may be so modified or excluded, the latter provision shall be
deemed to apply to this Trust Agreement as so modified or to be
excluded, as the case may be. The application of the Trust Indenture
Act to this Trust Agreement shall not affect the nature of the Trust
Securities as equity securities representing undivided beneficial
interests in the assets of the Trust.
SECTION 10.11 ACCEPTANCE OF TERMS OF TRUST AGREEMENT, GUARANTEE AND
INDENTURE.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN
BY OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY
SIGNATURE OR FURTHER MANIFESTATION OF ASSENT,
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SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE BY THE SECURITYHOLDER AND ALL
OTHERS HAVING A BENEFICIAL INTEREST IN SUCH TRUST SECURITY OF ALL THE TERMS AND
PROVISIONS OF THIS TRUST AGREEMENT AND AGREEMENT TO THE SUBORDINATION PROVISIONS
AND OTHER TERMS OF THE GUARANTEE AND THE INDENTURE, AND SHALL CONSTITUTE THE
AGREEMENT OF THE TRUST, SUCH 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. WITHOUT LIMITING THE
FOREGOING, BY ACCEPTANCE OF A TRUST PREFERRED SECURITY, EACH HOLDER THEREOF
SHALL BE DEEMED TO HAVE AGREED TO TREAT, FOR ALL UNITED STATES FEDERAL INCOME
TAX AND FINANCIAL ACCOUNTING PURPOSES, THE DEBENTURES AS INDEBTEDNESS OF THE
COMPANY AND THE TRUST PREFERRED SECURITIES AS EVIDENCING AN UNDIVIDED PREFERRED
BENEFICIAL OWNERSHIP INTEREST IN THE DEBENTURES.
[Remainder of Page Left Intentionally Blank]
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IN WITNESS WHEREOF, this Trust Agreement is dated as set forth below
and effective as of the day and year first above written.
United Bancorporation of Alabama, Inc.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
Date: 6/18/02
▇▇▇▇▇ Fargo Bank, National Association,
as Property Trustee
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Date: 6/27/02
---------------------------------
▇▇▇▇▇ Fargo Delaware Trust Company, as
Resident Trustee
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Date: 6/27/02
---------------------------------
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, As Administrative
Trustee
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/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, As Administrative
Trustee
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, As Administrative
Trustee
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EXHIBIT A
FORM OF CERTIFICATE OF TRUST
OF
UNITED BANCORP CAPITAL TRUST I
A-1
EXHIBIT B
FORM OF COMMON SECURITY CERTIFICATE
B-1
EXHIBIT C
AGREEMENT AS TO EXPENSES AND LIABILITIES
C-1
EXHIBIT D
FORM OF FLOATING RATE CUMULATIVE TRUST PREFERRED
SECURITY CERTIFICATE
D-1
EXHIBIT E
FORM OF TRANSFEREE LETTER OF REPRESENTATIONS
E-1
EXHIBIT F
FORM OF TRANSFEROR LETTER OF REPRESENTATIONS
F-1