EXHIBIT 4.1
FIRST OF AMERICA BANK CORPORATION
INDENTURE
Dated as of January 28, 1997
THE BANK OF NEW YORK
as Trustee
8.12% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURES
DUE JANUARY 31, 2027
Table of Contents
Page
ARTICLE I
DEFINITIONS
SECTION 1.01.
Definitions 1
Additional Interest 1
Adjusted Treasury Rate 1
Affiliate 2
Authenticating Agent 2
Bankruptcy Law 2
Board of Directors 2
Board Resolution 2
Business Day 2
Capital Securities 2
Capital Securities Guarantee 3
Commission 3
Common Securities 3
Common Securities Guarantee 3
Common Stock 3
Company 3
Company Request 3
Comparable Treasury Issue 3
Comparable Treasury Price 4
Compounded Interest 4
Custodian 4
Declaration 4
Default 4
Deferred Interest 4
Definitive Securities 4
Depositary 4
Dissolution Event 4
Event of Default 5
Exchange Act 5
Exchange Offer 5
Extended Interest Payment Period 5
Federal Reserve Board 5
First of America Capital Trust 5
Global Security 5
Indebtedness for Money Borrowed 5
Indenture 5
Initial Optional Redemption Date 5
Interest Payment Date 5
Liquidated Damages 5
Maturity Date 5
Non Book-Entry Capital Securities 5
Officers 6
Officers' Certificate 6
Opinion of Counsel 6
Optional Redemption Price 6
Other Debentures 6
Other Guarantees 6
Outstanding 6
Person 7
Predecessor Security 7
Principal office of the Trustee, 7
Purchase Agreement 7
Quotation Agent 7
Redemption Price 7
Reference Treasury Dealer 7
Reference Treasury Dealer Quotations 7
Registration Rights Agreement 7
Regulatory Capital Event 7
Remaining Life 8
Responsible Officer, 8
Restricted Security 8
Rule 144A 8
Securities 8
Securities Act 8
Securityholder 8
Security Register 8
Senior Indebtedness 9
Series A Securities 9
Series B Securities 9
Special Event 9
Special Event Redemption Price 9
Subsidiary 9
Tax Event 9
Trustee 10
Trust Indenture Act 10
Trust Securities 10
U.S. Government Obligations 10
ARTICLE II
SECURITIES
SECTION 2.01. Forms Generally 11
SECTION 2.02. Execution and Authentication 11
SECTION 2.03. Form and Payment 11
SECTION 2.04. Legends 12
SECTION 2.05. Global Security 12
SECTION 2.06. Interest 14
SECTION 2.07. Transfer and Exchange 14
SECTION 2.08. Replacement Securities 16
SECTION 2.09. Treasury Securities 16
SECTION 2.10. Temporary Securities 17
SECTION 2.11. Cancellation 17
SECTION 2.12. Defaulted Interest 17
SECTION 2.13. CUSIP Numbers 18
ARTICLE III
PARTICULAR COVENANTS OF THE COMPANY
SECTION 3.01. Payment of Principal, Premium and Interest 19
SECTION 3.02. Offices for Notices and Payments, etc. 19
SECTION 3.03. Appointments to Fill Vacancies in Trustee's
office 20
SECTION 3.04. Provision as to Paying Agent 20
SECTION 3.05. Certificate to Trustee 21
SECTION 3.06. Compliance with Consolidation Provisions 21
SECTION 3.07. Limitation on Dividends 21
SECTION 3.08. Covenants as to First of America
Capital Trust 22
SECTION 3.09. Payment of Expenses 22
SECTION 3.10. Payment Upon Resignation or Removal 23
ARTICLE IV
SECURITYHOLDERS' LISTS AND REPORTS BY THE
COMPANY AND THE TRUSTEE
SECTION 4.01. Securityholders' Lists 23
SECTION 4.02. Preservation and Disclosure of Lists 24
SECTION 4.03. Reports of the Company 25
SECTION 4.04. Reports by the Trustee 26
ARTICLE V
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.01. Events of Default 26
SECTION 5.02. Payment of Securities on Default;
Suit Therefor 28
SECTION 5.03. Application of Moneys Collected by Trustee 30
SECTION 5.04. Proceedings by Securityholders 30
SECTION 5.05. Proceedings by Trustee 31
SECTION 5.06. Remedies Cumulative and Continuing 32
SECTION 5.07. Direction of Proceedings and Waiver of
Defaults by Majority of Securityholders 32
SECTION 5.08. Notice of Defaults 33
SECTION 5.09. Undertaking to Pay Costs 33
ARTICLE VI
CONCERNING THE TRUSTEE
SECTION 6.01. Duties and Responsibilities of the Trustee 34
SECTION 6.02. Reliance on Documents, Opinions, etc. 35
SECTION 6.03. No Responsibility for Recitals, etc. 36
SECTION 6.04. Trustee, Authenticating Agent, Paying
Agents, Transfer Agents or Registrar
May Own Securities 36
SECTION 6.05. Moneys to be Held in Trust 36
SECTION 6.06. Compensation and Expenses of Trustee 37
SECTION 6.07. Officers Certificate as Evidence 37
SECTION 6.08. Conflicting Interest of Trustee 38
SECTION 6.09. Eligibility of Trustee 38
SECTION 6.10. Resignation or Removal of Trustee 38
SECTION 6.11. Acceptance by Successor Trustee 40
SECTION 6.12. Successor by Merger, etc. 40
SECTION 6.13. Limitation on Rights of Trustee as a Creditor 41
SECTION 6.14. Authenticating Agents 41
ARTICLE VII
CONCERNING THE SECURITYHOLDERS
SECTION 7.01. Action by Securityholders 42
SECTION 7.02. Proof of Execution by Securityholders 43
SECTION 7.03. Who Are Deemed Absolute Owners 43
SECTION 7.04. Securities Owned by Company Deemed Not
Outstanding 43
SECTION 7.05. Revocation of Consents; Future Holders Bound 44
ARTICLE VIII
SECURITYHOLDERS' MEETINGS
SECTION 8.01. Purpose of Meetings 44
SECTION 8.02. Call of Meetings by Trustee 45
SECTION 8.03. Call of Meetings by Company or
Securityholders 45
SECTION 8.04. Qualifications for Voting 45
SECTION 8.05. Regulations 45
SECTION 8.06. Voting 46
ARTICLE IX
AMENDMENTS
SECTION 9.01. Without Consent of Securityholders 47
SECTION 9.02. With Consent of Securityholders 48
SECTION 9.03. Compliance with Trust Indenture Act;
Effect of Supplemental Indentures 49
SECTION 9.04. Notation on Securities 49
SECTION 9.05. Evidence of Compliance of Supplemental
Indenture to be Furnished Trustee 50
ARTICLE X
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
SECTION 10.01. Company May Consolidate, etc.,
on Certain Terms 50
SECTION 10.02. Successor Corporation to be Substituted for
Company 50
SECTION 10.03. Opinion of Counsel to be Given Trustee 51
ARTICLE XI
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 11.01. Discharge of Indenture 51
SECTION 11.02. Deposited Moneys and U.S. Government
Obligations to be Held in Trust by Trustee 52
SECTION 11.03. Paying Agent to Repay Moneys Held 52
SECTION 11.04. Return of Unclaimed Moneys 52
SECTION 11.05. Defeasance Upon Deposit of Moneys or U.S.
Government Obligations 53
SECTION 11.06. Reinstatement 54
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01. Indenture and Securities Solely
Corporate Obligations 55
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01. Successors 55
SECTION 13.02. Official Acts by Successor Corporation 55
SECTION 13.03. Surrender of Company Powers 55
SECTION 13.04. Address for Notices, etc. 56
SECTION 13.05. Governing Law 56
SECTION 13.06. Evidence of Compliance with
Conditions Precedent 56
SECTION 13.07. Payments on Business Days Only 57
SECTION 13.08. Trust Indenture Act to Control 57
SECTION 13.09. Table of Contents, Headings, etc. 57
SECTION 13.10. Execution in Counterparts 57
SECTION 13.11. Separability 57
SECTION 13.12. Assignment 57
SECTION 13.13. Acknowledgment of Rights 58
ARTICLE XIV
REDEMPTION OF SECURITIES; NO SINKING FUND
SECTION 14.01. Special Event Redemption 58
SECTION 14.02. Optional Redemption by Company 58
SECTION 14.03. No Sinking Fund 60
SECTION 14.04. Notice of Redemption; Selection of Securities 60
SECTION 14.05. Payment of Securities Called for Redemption 61
ARTICLE XV
SUBORDINATION OF SECURITIES
SECTION 15.01. Agreement to Subordinate 61
SECTION 15.02. Default on Senior Indebtedness 62
SECTION 15.03. Liquidation; Dissolution; Bankruptcy 62
SECTION 15.04. Subrogation 63
SECTION 15.05. Trustee to Effectuate Subordination 64
SECTION 15.06. Notice by the Company 65
SECTION 15.07. Rights of the Trustee; Holders of
Senior Indebtedness 66
SECTION 15.08. Subordination May Not Be Impaired 66
ARTICLE XVI
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 16.01. Extension of Interest Payment Period 67
SECTION 16.02. Notice of Extension 67
CROSS-REFERENCE TABLE*
Section of Trust
Indenture Act of 1939, Section of
as Amended Indenture
Section 310 (a)(1), (2) and (5) 6.09
(a)(3) Not Applicable
(a)(4) Not Applicable
(b) 6.08, 6.10
(c) Not Applicable
Section 311 (a) 6.13
(b) 6.13
Section 312 (a) 4.01
(b) 4.02(b)
(c) 4.02(c)
Section 313 (a) 4.04
(b) 4.04
(c) 4.04
(d) 4.04(b)
Section 314 (a)(1), (2) and (3) 4.03(a),(b)&(c)
(a)(4) 4.03(d)
(b) Not Applicable
(c)(1) 4.03(d)
(c)(2) Not Applicable
(c)(3) Not Applicable
(d) Not Applicable
(e) 13.06
(f) Not Applicable
Section 315 (a) 6.01(a)
(b) 6.01(a), 5.08
(c) 6.01
(d) 6.01(b)
(d)(1) 6.01(a)
(d)(2) 6.01(b)
(d)(3) 6.01(c)
(e) 5.09
Section 316 (a) 5.07, 9.02
(a)(1)(A) 5.07
(a)(1)(B) 5.07
(a)(2) Not Applicable
(b) 5.07
(c) 7.01
Section 317(a)(1) 5.05
(a)(2) 5.02
(b) 3.04
Section 318(a) 13.08
________________________
*This Cross-Reference Table does not constitute part of this
Indenture and shall not affect the interpretation of any of its
terms or provisions.
THIS INDENTURE, dated as of January 28, 1997, between First of
America Bank Corporation, a Michigan corporation (hereinafter
sometimes called the Company ), and The Bank of New York, a New York
banking corporation, as trustee (hereinafter Trustee ).
W I T N E S S E T H:
In consideration of the premises, and the purchase of the
Securities by the holders thereof, the Company covenants and agrees
with the Trustee for the equal and proportionate benefit of the
respective holders from time to time of the Securities, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions.
The terms defined in this Section 1.01 (except as herein
otherwise expressly provided or unless the context otherwise requires)
for all purposes of this Indenture shall have the respective meanings
specified in this Section 1.01. All other terms used in this
Indenture that are defined in the Trust Indenture Act or the
Securities Act shall (except as herein otherwise expressly provided or
unless the context otherwise requires) have the meanings assigned to
such terms in the Trust Indenture Act and the Securities Act as in
force at the date of this Indenture as originally executed. The
following terms have the meanings given to them in the Declaration:
(i) Series A Capital Securities; (ii) Series B Capital Securities;
(iii) Series A Capital Securities Guarantee; (iv) Series B Capital
Securities Guarantee; (v) Clearing Agency; (vi) Delaware Trustee;
(vii) Capital Security Certificate; (viii) Property Trustee; (ix)
Administrative Trustees; and (x) Direct Action. All accounting terms
used herein and not expressly defined shall have the meanings assigned
to such terms in accordance with generally accepted accounting
principles, and the term generally accepted accounting principles
means such accounting principles as are generally accepted at the time
of any computation. The words herein, hereof and hereunder and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision. Headings are
used for convenience of reference only and do not affect
interpretation. The singular includes the plural and vice versa.
Additional Interest shall have the meaning set forth in Section
2.06(c).
Adjusted Treasury Rate shall mean, with respect to any redemption
date pursuant to Section 14.01, the rate per annum equal to (i) the
yield, under the heading which represents the average for the
immediately prior week, appearing in the most recently published
statistical release designated H.15 (519) or any successor publication
which is published weekly by the Federal Reserve Board and which
establishes yields on actively traded United States Treasury
securities adjusted to constant maturity under the caption Treasury
Constant Maturities, for the maturity corresponding to the Remaining
Life (if no maturity is within three months before or after the
maturity corresponding to the Remaining Life, yields for the two
published maturities most closely corresponding to the Remaining Life
shall be interpolated, and the Adjusted Treasury Rate shall be
interpolated or extrapolated from such yields on a straight-line
basis, rounding to the nearest month) or (ii) if such release (or any
successor release) is not published during the week preceding the
calculation date or does not contain such yields, the rate per annum
equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, calculated using a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price for such redemption date, in
each case calculated on the third Business Day preceding the
redemption date, plus in each case (a) 1.05% if such redemption occurs
on or prior to January 31, 1998 and (b) 0.50% in all other cases.
Affiliate shall mean, with respect to a specified Person, (a) any
Person directly or indirectly owning, controlling or holding the 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 shall mean any agent or agents of the
Trustee which at the time shall be appointed and acting pursuant to
Section 6.14.
Bankruptcy Law shall mean Title 11, U.S. Code, or any similar
federal or state law for the relief of debtors.
Board of Directors shall mean either the Board of Directors of
the Company or any duly authorized committee of that board.
Board Resolution shall mean a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been
duly adopted by the Board of Directors and to be in full force and
effect on the date of such certification, and delivered to the
Trustee.
Business Day shall mean, with respect to any series of
Securities, any day other than a Saturday or a Sunday or a day on
which banking institutions in The City of New York or Wilmington,
Delaware are authorized or required by law or executive order to
close.
Capital Securities shall mean undivided beneficial interests in
the assets of First of America Capital Trust which rank pari passu
with the Common Securities issued by First of America Capital Trust;
provided, however, that if an Event of Default has occurred and is
continuing, no payments in respect of Distributions on, or payments
upon liquidation, redemption or otherwise with respect to, the Common
Securities shall be made until the holders of the Capital Securities
shall be paid in full the Distributions and the liquidation,
redemption and other payments to which they are entitled. References
to Capital Securities shall include, collectively, any Series A
Capital Securities and Series B Capital Securities.
Capital Securities Guarantee shall mean any guarantee that the
Company may enter into with The Bank of New York or other Persons that
operate directly or indirectly for the benefit of holders of Capital
Securities of First of America Capital Trust and shall include a
Series A Capital Securities Guarantee and a Series B Capital
Securities Guarantee with respect to the Series A Capital Securities
and the Series B Capital Securities, respectively.
Commission shall mean the United States 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 Indenture
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 shall mean undivided beneficial interests in
the assets of First of America Capital Trust that rank pari passu with
Capital Securities issued by First of America Capital Trust; provided,
however, that if an Event of Default has occurred and is continuing,
no payments in respect of Distributions on, or payments upon
liquidation, redemption or otherwise with respect to, the Common
Securities shall be made until the holders of the Capital Securities
shall be paid in full the Distributions and the liquidation,
redemption and other payments to which they are entitled.
Common Securities Guarantee shall mean any guarantee of the
Company that operates directly or indirectly for the benefit of
holders of Common Securities of First of America Capital Trust.
Common Stock shall mean the Common Stock, par value $10.00 per
share, of the Company or any other class of stock resulting from
changes or reclassifications of such Common Stock consisting solely of
changes in par value, or from par value to no par value, or from no
par value to par value.
Company shall mean First of America Bank Corporation, a Michigan
corporation, and, subject to the provisions of Article X, shall
include its successors and assigns.
Company Request or Company Order shall mean a written request or
order signed in the name of the Company by the chairman, the chief
executive officer, the president, a vice chairman, a vice president,
the treasurer or an assistant treasurer of the Company, and delivered
to the Trustee.
Comparable Treasury Issue shall mean the United States Treasury
security selected by the Quotation Agent as having a maturity
comparable to the Remaining Life of the Securities that would be
utilized, at the time of selection and in accordance with customary
financial practice, in pricing new issues of corporate debt securities
of comparable maturity to the Remaining Life of the Securities,
provided that no United States Treasury security has a maturity which
is within a period from three months before to three months after the
Initial Optional Redemption Date, the two most closely corresponding
United States Treasury securities shall be used as the Comparable
Treasury Issue, and the Adjusted Treasury Rate shall be interpolated
or extrapolated on a straight-line basis, rounding to the nearest
month, using such securities.
Comparable Treasury Price shall mean, with respect to any
redemption date pursuant to Section 14.01, (i) the average of five
Reference Treasury Dealer Quotations for such redemption date, after
excluding the highest and lowest such Reference Treasury Dealer
Quotations, or (ii) if the Trustee obtains fewer than five such
Reference Treasury Dealer Quotations (the Trustee having discretion as
to the number of Reference Treasury Dealer Quotations sought in excess
of five), the average of all such Reference Treasury Dealer
Quotations.
Compounded Interest shall have the meaning set forth in Section
16.01.
Custodian shall mean any receiver, trustee, assignee, liquidator,
or similar official under any Bankruptcy Law.
Declaration shall mean the Amended and Restated Declaration of
Trust of First of America Capital Trust, dated as of January 28, 1997.
Default shall mean any event, act or condition that with notice
or lapse of time, or both, would constitute an Event of Default.
Deferred Interest shall have the meaning set forth in Section
16.01.
Definitive Securities shall mean those securities issued in fully
registered certificated form not otherwise in global form.
Depositary shall mean, with respect to Securities of any series,
for which the Company shall determine that such Securities will be
issued as a Global Security, The Depository Trust Company, New York,
New York, another clearing agency, or any successor registered as a
clearing agency under the Exchange Act or other applicable statute or
regulation, which, in each case, shall be designated by the Company
pursuant to Section 2.05(d).
Dissolution Event shall mean the termination of First of America
Capital Trust pursuant to the Declaration, and the distribution of the
Securities held by the Property Trustee to the holders of the Trust
Securities issued by First of America Capital Trust pro rata in
accordance with the Declaration.
Event of Default shall mean any event specified in Section 5.01,
continued for the period of time, if any, and after the giving of the
notice, if any, therein designated.
Exchange Act shall mean the Securities Exchange Act of 1934, as
amended.
Exchange Offer shall mean the offer that may be made pursuant to
the Registration Rights Agreement (i) by the Company to exchange
Series B Securities for Series A Securities and to exchange the Series
B Capital Securities Guarantee for the Series A Capital Securities
Guarantee and (ii) by First of America Capital Trust to exchange
Series B Capital Securities for Series A Capital Securities.
Extended Interest Payment Period shall have the meaning set forth
in Section 16.01.
Federal Reserve Board shall mean the Board of Governors of the
Federal Reserve System.
First of America Capital Trust shall mean First of America
Capital Trust I, a Delaware business trust created for the purpose of
issuing its undivided beneficial interests in connection with the
issuance of Securities under this Indenture.
Global Security shall mean, with respect to the Securities, a
Security executed by the Company and delivered by the Trustee to the
Depositary or pursuant to the Depositary s instruction, all in
accordance with the Indenture, which shall be registered in the name
of the Depositary or its nominee.
Indebtedness for Money Borrowed shall mean any obligation of, or
any obligation guaranteed by, the Company for the repayment of
borrowed money, whether or not evidenced by bonds, debentures, notes
or other written instruments.
Indenture shall mean this instrument as originally executed or,
if amended as herein provided, as so amended.
Initial Optional Redemption Date shall mean January 31, 2007.
Interest Payment Date shall have the meaning set forth in Section
2.06.
Liquidated Damages shall have the meaning set forth in the
Registration Rights Agreement.
Maturity Date shall mean January 31, 2027.
Non Book-Entry Capital Securities shall have the meaning set
forth in Section 2.05.
Officers shall mean any of the chairman, a vice chairman, the
chief executive officer, the president, a vice president, the
treasurer or an assistant treasurer of the Company.
Officers Certificate shall mean a certificate signed by two
Officers and delivered to the Trustee.
Opinion of Counsel shall mean a written opinion of counsel, who
may be an employee of the Company, and who shall be acceptable to the
Trustee.
Optional Redemption Price shall have the meaning set forth in
Section 14.02.
Other Debentures shall mean all junior subordinated debentures
(other than the Securities) issued by the Company from time to time
and sold to trusts to be established by the Company (if any), in each
case similar to First of America Capital Trust.
Other Guarantees shall mean all guarantees to be issued by the
Company with respect to capital securities (if any) and issued to
trusts other than First of America Capital Trust to be established by
the Company (if any), in each case similar to First of America Capital
Trust.
The term outstanding when used with reference to Securities,
shall, subject to the provisions of Section 7.04, mean, as of any
particular time, all Securities authenticated and delivered by the
Trustee or an Authenticating Agent under this Indenture, except
a. Securities theretofore canceled by the Trustee or an
Authenticating Agent or delivered to the Trustee for
cancellation;
b. Securities, or portions thereof, for the payment or
redemption of which moneys in the necessary amount
shall have been deposited in trust with the Trustee or
with any paying agent (other than the Company) or shall
have been set aside and segregated in trust by the
Company (if the Company shall act as its own paying
agent); provided that, if such Securities, or portions
thereof, are to be redeemed prior to maturity thereof,
notice of such redemption shall have been given as in
Article Fourteen provided or provision satisfactory to
the Trustee shall have been made for giving such
notice; and
c. Securities in lieu of or in substitution for which
other Securities shall have been authenticated and
delivered pursuant to the terms of Section 2.08 unless
proof satisfactory to the Company and the Trustee is
presented that any such Securities are held by bona
fide holders in due course.
Person shall mean any individual, corporation, estate,
partnership, joint venture, association, joint-stock company, limited
liability company, trust, unincorporated organization or government or
any agency or political subdivision thereof.
Predecessor Security of any particular Security shall mean every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section
2.08 in lieu of a lost, destroyed or stolen Security shall be deemed
to evidence the same debt as the lost, destroyed or stolen Security.
Principal office of the Trustee, or other similar term, shall
mean the principal office of the Trustee, at which at any particular
time its corporate trust business shall be administered.
Purchase Agreement shall mean the Purchase Agreement dated
January 21, 1997 among the Company, First of America Capital Trust and
the Initial Purchasers named therein.
Quotation Agent shall mean the Reference Treasury Dealer
appointed by the Company.
Redemption Price shall mean the Special Event Redemption Price or
the Optional Redemption Price, as the context requires.
Reference Treasury Dealer shall mean: (i) Merrill Lynch
Government Securities, Inc. and its successors, provided that if the
foregoing shall cease to be a primary U.S. Government securities
dealer in New York City (a Primary Treasury Dealer), the Company shall
substitute therefor another Primary Treasury Dealer; and (ii) any
other Primary Treasury Dealer selected by the Company.
Reference Treasury Dealer Quotations shall mean, with respect to
each Reference Treasury Dealer and any redemption date pursuant to
Section 14.01, the average, as determined by the Trustee, of the bid
and asked prices for the Comparable Treasury Issue (expressed in each
case as a percentage of its principal amount) at 5:00 p.m., New York
City time, on the third Business Day preceding such redemption date
quoted in writing to the Trustee by such Reference Treasury Dealer.
Registration Rights Agreement shall mean the Registration Rights
Agreement, dated as of January 28, 1997, by and among the Company,
First of America Capital Trust and the Initial Purchasers named
therein, as such agreement may be amended, modified or supplemented
from time to time.
Regulatory Capital Event shall mean that the Company shall have
received an opinion of Howard & Howard Attorneys, P.C. or other
independent bank regulatory counsel experienced in such matters to the
effect that, as a result of (a) any amendment to, or change (including
any announced prospective change) in, the laws (or any regulations
thereunder) of the United States or any rules, guidelines or policies
of the Federal Reserve Board or (b) any official administrative
pronouncement or judicial decision interpreting or applying such laws
or regulations, which amendment or change is effective or which
pronouncement or decision is announced on or after the date of
original issuance of the Series A Capital Securities, the Capital
Securities do not constitute, or within 90 days of the date of such
opinion will not constitute, Tier I Capital (or its then equivalent);
provided, however, that the distribution of the Securities in
connection with the termination of First of America Capital Trust by
the Company shall not in and of itself constitute a Regulatory Capital
Event unless such termination shall have occurred in connection with a
Tax Event.
Remaining Life shall mean the period from and including any
redemption date pursuant to Section 14.01 of this Indenture to and
including the Initial Optional Redemption Date.
Responsible Officer, when used with respect to the Trustee, shall
mean the chairman or any vice chairman of the board of directors, the
chairman or any vice chairman of the executive committee of the board
of directors, the chairman of the trust committee, the president, any
vice president, the cashier, any assistant cashier, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, any trust
officer or assistant trust officer, the controller or any assistant
controller or any other officer or assistant customarily performing
functions similar to those performed by any of the above designated
officers, and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of
his knowledge of and familiarity with the particular subject.
Restricted Security shall mean Securities that bear or are
required to bear the legends set forth in Exhibit A hereto, other than
those legends to be set forth on a Global Security.
Rule 144A shall mean Rule 144A under the Securities Act, as such
Rule may be amended from time to time, or under any similar rule or
regulation hereafter adopted by the Commission.
Securities shall mean, collectively, the Series A Securities and
the Series B Securities.
Securities Act shall mean the Securities Act of 1933 as amended.
Securityholder, holder of Securities or other similar terms,
shall mean any Person in whose name at the time a particular Security
is registered on the register kept by the Company or the Trustee for
that purpose in accordance with the terms hereof.
Security Register shall mean (i) prior to a Dissolution Event,
the list of holders provided to the Trustee pursuant to Section 4.01,
and (ii) following a Dissolution Event, any security register
maintained by a security registrar for the Securities appointed by the
Company following the execution of a supplemental indenture providing
for transfer procedures as provided for in Section 2.07(a).
Senior Indebtedness shall mean all Indebtedness for Money
Borrowed, whether outstanding on the date of execution of this
Indenture or hereafter created, assumed or incurred, unless the terms
thereof specifically provide that it is not superior in right of
payment to the Securities, and any deferrals, renewals or extensions
of such Senior Indebtedness.
Series A Securities shall mean the Company's 8.12% Junior
Subordinated Deferrable Interest Debentures due January 31, 2027,
Series A, as authenticated and issued under this Indenture.
Series B Securities shall mean the Company's 8.12% Junior
Subordinated Deferrable Interest Debentures due January 31, 2027,
Series B, as authenticated and issued under this Indenture.
Special Event means either a Regulatory Capital Event or a Tax
Event.
Special Event Redemption Price shall mean, with respect to any
redemption of the Securities pursuant to Section 14.01 hereof, an
amount in cash equal to the greater of (i) 100% of the principal
amount of the Securities or (ii) the sum, as determined by a Quotation
Agent, of the present values of 104.060% of the principal amount of
the Securities, together with scheduled payments of interest on the
Securities for the Remaining Life, discounted to the redemption date
on a semi-annual basis (assuming a 360-day year consisting of twelve
30-day months) at the Adjusted Treasury Rate, plus, in each case, any
accrued and unpaid interest thereon, including Compounded Interest and
Additional Interest, if any, to the date of such redemption.
Subsidiary shall mean, with respect to any Person, (i) any
corporation at least a majority of whose outstanding voting stock of
which is owned, directly or indirectly, by such Person or by one or
more of its Subsidiaries, or by such Person and one or more of its
Subsidiaries, (ii) any general partnership, joint venture or similar
entity, at least a majority of whose outstanding partnership or
similar interests shall at the time be owned by such Person, or by one
or more of its Subsidiaries, or by such Person and one or more of its
Subsidiaries and (iii) any limited partnership of which such Person or
any of its Subsidiaries is a general partner. For the purposes of
this definition, voting stock means shares, interests, participations
or other equivalents in the equity interest (however designated) in
such Person having ordinary voting power for the election of a
majority of the directors (or the equivalent) of such Person, other
than shares, interests, participations or other equivalents having
such power only by reason of the occurrence of a contingency.
Tax Event shall mean the receipt by First of America Capital
Trust and the Company of an opinion of Howard & Howard Attorneys, P.C.
or other counsel experienced in such matters to the effect that, as a
result of any amendment to, or change (including any announced
prospective change) in, the laws or any regulations thereunder of the
United States or any political subdivision or taxing authority thereof
or therein or as a result of any official administrative pronouncement
or judicial decision interpreting or applying such laws or
regulations, which amendment or change is effective or which
pronouncement or decision is announced on or after the date of
original issuance of the Series A Capital Securities, there is more
than an insubstantial risk that (i) First of America Capital Trust is,
or will be within 90 days of the date of such opinion, subject to
United States federal income tax with respect to income received or
accrued on the Securities, (ii) the interest payable by the Company on
the Securities is not, or within 90 days of the date of such opinion
will not be, deductible by the Company, in whole or in part, for
United States federal income tax purposes, or (iii) First of America
Capital Trust is, or will be within 90 days of the date of such
opinion, subject to more than a de minimis amount of other taxes,
duties or other governmental charges.
Trustee shall mean the Person identified as Trustee in the first
paragraph hereof, and, subject to the provisions of Article Six
hereof, shall also include its successors and assigns as Trustee
hereunder.
Trust Indenture Act shall mean the Trust Indenture Act of 1939 as
in force at the date of execution of this Indenture except as provided
in Section 9.03; provided, however, that, in the event the Trust
Indenture Act of 1939 is amended after such date, Trust Indenture Act
shall mean, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
Trust Securities shall mean the Capital Securities and the Common
Securities, collectively.
U.S. Government Obligations shall mean securities that are (i)
direct obligations of the United States of America for the payment of
which its full faith and credit is pledged or (ii) obligations of a
Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the payment of which
is unconditionally guaranteed as a full faith and credit obligation by
the United States of America, which, in either case under clauses (i)
or (ii) are not callable or redeemable at the option of the issuer
thereof, and shall also include a depository receipt issued by a bank
or trust company as custodian with respect to any such U.S. Government
Obligation or a specific payment of interest on or principal of any
such U.S. Government Obligation held by such custodian for the
account of the holder of a depository receipt, provided that (except
as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the
U.S. Government Obligation or the specific payment of interest on or
principal of the U.S. Government Obligation evidenced by such
depository receipt.
ARTICLE II
SECURITIES
SECTION 2.01 Forms Generally.
The Securities and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit A, the terms of which
are incorporated in and made a part of this Indenture. The Securities
may have notations, legends or endorsements required by law, stock
exchange rule, agreements to which the Company is subject or usage.
Each Security shall be dated the date of its authentication. The
Securities shall be issued in denominations of $1,000 and integral
multiples thereof.
SECTION 2.02 Execution and Authentication.
An Officer shall sign the Securities for the Company by manual or
facsimile signature. If an Officer whose signature is on a Security
no longer holds that office at the time the Security is authenticated,
the Security shall nevertheless be valid.
A Security shall not be valid until authenticated by the manual
signature of the Trustee. The signature of the Trustee shall be
conclusive evidence that the Security has been authenticated under
this Indenture. The form of Trustee s certificate of authentication
to be borne by the Securities shall be substantially as set forth in
Exhibit A hereto.
The Trustee shall, upon a Company Order, authenticate for
original issue up to, and the aggregate principal amount of Securities
outstanding at any time may not exceed, $154, 640,000 aggregate
principal amount of the Securities, except as provided in Sections
2.07, 2.08, 2.10 and 14.05.
SECTION 2.03 Form and Payment.
Except as provided in Section 2.05, the Securities shall be
issued in fully registered certificated form without interest coupons
and principal of and premium, if any, and interest on the Securities
issued in certificated form will be payable, the transfer of such
Securities will be registrable and such Securities will be
exchangeable for Securities bearing identical terms and provisions at
the office or agency of the Trustee or at the office of such paying
agent(s) as the Company may designate from time to time; provided,
however, that payment of interest may be made at the option of the
Company by (i) check mailed to the holder at such address as shall
appear in the Security Register or (ii) transfer to an account
maintained by the Person entitled thereto, provided that proper
transfer instructions have been received in writing by the relevant
record date. Notwithstanding the foregoing, so long as the holder of
any Securities is the Property Trustee, the payment of the principal
of and premium, if any, and interest (including Compounded Interest
and Additional Interest, if any) on such Securities held by the
Property Trustee will be made in immediately available funds at such
place and to such account as may be designated by the Property
Trustee.
SECTION 2.04 Legends.
a. Except as permitted by subsection (b) of this Section
2.04 or as otherwise determined by the Company in accordance with
applicable law, each Security shall bear the applicable legends
relating to restrictions on transfer pursuant to the securities laws
in substantially the form set forth on Exhibit A hereto.
b. The Company shall issue and the Trustee shall
authenticate Series B Securities in exchange for Series A Securities
accepted for exchange in the Exchange Offer, which Series B Securities
shall not bear the legends required by subsection (a) above, in each
case unless the Trustee is notified in writing by the Company that the
holder of such Series A Securities is either (A) a broker-dealer who
purchased such Series A Securities directly from the Company for
resale pursuant to Rule 144A or any other available exemption under
the Securities Act, (B) a Person participating in the distribution of
the Series A Securities or (C) a Person who is an affiliate (as
defined in Rule 144 under the Securities Act) of the Company.
SECTION 2.05 Global Security.
a. In connection with a Dissolution Event,
(i) if any Capital Securities are held in book-entry
form, the related Definitive Securities shall be presented
to the Trustee (if an arrangement with the Depositary has
been maintained) by the Property Trustee in exchange for one
or more Global Securities (as may be required pursuant to
Section 2.07) in an aggregate principal amount equal to the
aggregate principal amount of all outstanding Securities, to
be registered in the name of the Depositary, or its nominee,
and delivered by the Trustee to the Depositary, or a
custodian therefor, for crediting to the accounts of its
participants pursuant to the instructions of the
Administrative Trustees; the Company upon any such
presentation shall execute one or more Global Securities in
such aggregate principal amount and deliver the same to the
Trustee for authentication and delivery in accordance with
this Indenture; and payments on the Securities issued as a
Global Security will be made in immediately available funds
to the Depositary; and
(ii) if any Capital Securities are held in
certificated form, the related Definitive Securities may be
presented to the Trustee by the Property Trustee and any
Capital Security certificate which represents Capital
Securities other than Capital Securities in book-entry form
( Non Book-Entry Capital Securities ) will be deemed to
represent beneficial interests in Securities presented to
the Trustee by the Property Trustee having an aggregate
principal amount equal to the aggregate liquidation amount
of the Non Book-Entry Capital Securities until such Capital
Security certificates are presented to the Security
Registrar for transfer or reissuance, at which time such
Capital Security certificates will be canceled and a
Security, registered in the name of the holder of the
Capital Security certificate, as the case may be, with an
aggregate principal amount equal to the aggregate
liquidation amount of the Capital Security certificate
canceled, will be executed by the Company and delivered to
the Trustee for authentication and delivery in accordance
with this Indenture; and upon the issuance of such
Securities, Securities with an equivalent aggregate
principal amount that were presented by the Property Trustee
to the Trustee will be deemed to have been canceled.
b. The Global Securities shall represent the aggregate
amount of outstanding Securities from time to time endorsed thereon;
provided, that the aggregate amount of outstanding Securities
represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions. Any endorsement of
a Global Security to reflect the amount of any increase or decrease in
the amount of outstanding Securities represented thereby shall be made
by the Trustee, in accordance with instructions given by the Company
as required by this Section 2.05.
c. The Global Securities may be transferred, in whole but
not in part, only to another nominee of the Depositary, to a successor
Depositary selected or approved by the Company, or to a nominee of
such successor Depositary.
d. If at any time the Depositary notifies the Company that
it is unwilling or unable to continue as Depositary or the Depositary
has ceased to be a clearing agency registered under the Exchange Act,
and a successor Depositary is not appointed by the Company within 90
days after the Company receives such notice or becomes aware of such
condition, as the case may be, the Company will execute, and the
Trustee, upon written notice from the Company, will authenticate and
make available for delivery, the Definitive Securities, in authorized
denominations, and in an aggregate principal amount equal to the
principal amount of the Global Security, in exchange for such Global
Security. If there is an Event of Default, the Depositary shall have
the right to exchange the Global Securities for Definitive Securities.
In addition, the Company may at any time determine that the Securities
shall no longer be represented by a Global Security. In the event of
such an Event of Default or such a determination, the Company shall
execute, and, subject to Section 2.07, the Trustee, upon receipt of an
Officers Certificate evidencing such determination by the Company,
will authenticate and make available for delivery, the Definitive
Securities, in authorized denominations, and in an aggregate principal
amount equal to the principal amount of the Global Security, in
exchange for such Global Security. Upon the exchange of the Global
Security for such Definitive Securities, in authorized denominations,
the Global Security shall be canceled by the Trustee. Such Definitive
Securities issued in exchange for the Global Security shall be
registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Definitive Securities to the Depositary for
delivery to the Persons in whose names such Definitive Securities are
so registered.
SECTION 2.06 Interest.
a. Each Security will bear interest at the rate of 8.12%
per annum (the Coupon Rate) from the most recent date to which
interest has been paid or, if no interest has been paid, from January
28, 1997, until the principal thereof becomes due and payable, and on
any overdue principal (and premium, if any) and (to the extent that
payment of such interest is enforceable under applicable law) on any
overdue installment of interest at the Coupon Rate, compounded
semi-annually, payable (subject to the provisions of Article XVI)
semi-annually in arrears on January 31 and July 31 of each year,
commencing July 31, 1997 (each, an Interest Payment Date), to the
Person in whose name such Security or any predecessor Security is
registered, at the close of business on the regular record date for
such interest installment, which shall be the fifteenth day of the
month in which the relevant Interest Payment Date falls.
b. Interest will be computed on the basis of a 360-day
year consisting of twelve 30-day months.
c. During such time as the Property Trustee is the holder
of any Securities, the Company shall pay any additional amounts on the
Securities as may be necessary in order that the amount of
Distributions then due and payable by First of America Capital Trust
on the outstanding Securities shall not be reduced as a result of any
additional taxes, duties or other governmental charges to which First
of America Capital Trust has become subject as a result of a Tax Event
(Additional Interest).
SECTION 2.07 Transfer and Exchange.
a. Transfer Restrictions. The Series A Securities, and
those Series B Securities with respect to which any Person described
in clause (A), (B) or (C) of Section 2.04 is the beneficial owner, may
not be transferred except in compliance with any legend contained in
Exhibit A unless otherwise determined by the Company in accordance
with applicable law. Upon any distribution of the Securities following
a Dissolution Event, the Company and the Trustee shall enter into a
supplemental indenture pursuant to Section 9.01 to provide for the
transfer restrictions and procedures with respect to the Securities
substantially similar to those contained in the Declaration to the
extent applicable in the circumstances existing at such time. In
addition, the Series A Securities will be issued and may be
transferred only in blocks having an aggregate principal amount of not
less than $100,000 until such Series A Securities are registered
pursuant to an effective Registration Statement filed under the
Securities Act or are "unrestricted" pursuant to Rule 144 under the
Securities Act. Any such transfer of the Series A Securities in a
block having an aggregate principal amount of less than $100,000 shall
be deemed to be void and of no legal force or effect whatsoever. Any
such transferee shall be deemed not to be holder of such Series A
Securities for any purpose, including, but not limited to, the receipt
of payments on such Series A Securities, and such transferee shall be
deemed to have no interest whatsoever in such Series A Securities.
b. General Provisions Relating to Transfers and Exchanges.
To permit registrations of transfers and exchanges, the Company shall
execute, and the Trustee shall authenticate, Definitive Securities and
Global Securities. All Definitive Securities and Global Securities
issued upon any registration of transfer or exchange of Definitive
Securities or Global Securities shall be the valid obligations of the
Company, evidencing the same debt, and entitled to the same benefits
under this Indenture, as the Definitive Securities or Global
Securities surrendered upon such registration of transfer or exchange.
No service charge shall be made to a holder for any
registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith.
The Company shall not be required to (i) issue, register the
transfer of or exchange Securities during a period beginning at the
opening of business 15 days before the day of mailing of a notice of
redemption or any notice of selection of Securities for redemption
under Article Fourteen hereof and ending at the close of business on
the day of such mailing; or (ii) register the transfer of or exchange
any Security so selected for redemption in whole or in part, except
the unredeemed portion of any Security being redeemed in part.
Prior to due presentment for the registration of a transfer
of any Security, the Company, the Trustee and any agent of the Company
or the Trustee may deem and treat the Person in whose name any
Security is registered as the absolute owner of such Security for the
purpose of receiving payment of principal of and premium, if any, and
interest on such Securities, and neither the Company or the Trustee
nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
c. Exchange of Series A Securities for Series B
Securities. The Series A Securities may be exchanged for Series B
Securities pursuant to the terms of the Exchange Offer. The Trustee
shall make the exchange as follows:
The Company shall present the Trustee with an Officers
Certificate certifying the following:
(A) upon issuance of the Series B Securities, the
transactions contemplated by the Exchange Offer
have been consummated; and
(B) the principal amount of Series A Securities
properly tendered in the Exchange Offer that are
represented by a Global Security and the
principal amount of Series A Securities properly
tendered in the Exchange Offer that are
represented by Definitive Securities, the name of
each holder of such Definitive Securities, the
principal amount, at maturity, properly tendered
in the Exchange Offer by each such holder and the
name and address to which Definitive Securities
for Series B Securities shall be registered and
sent for each such holder.
The Trustee, upon receipt of (i) such Officers Certificate,
(ii) an Opinion of Counsel (x) to the effect that the Series B
Securities have been registered under Section 5 of the Securities Act
and the Indenture, the Declaration and the Series B Capital Securities
Guarantee have been qualified under the Trust Indenture Act and (y)
with respect to the matters set forth in Section 3(p) of the
Registration Rights Agreement and (iii) a Company Order, shall
authenticate (A) a Global Security for Series B Securities in an
aggregate principal amount equal to the aggregate principal amount of
Series A Securities represented by a Global Security indicated in such
Officers Certificate as having been properly tendered and (B)
Definitive Securities representing Series B Securities registered in
the names of, and in the principal amounts indicated in, such Officers
Certificate.
If the principal amount at maturity of the Global Security
for the Series B Securities is less than the principal amount at
maturity of the Global Security for the Series A Securities, the
Trustee shall make an endorsement on such Global Security for the
Series A Securities indicating a reduction in the principal amount at
maturity represented thereby.
The Trustee shall deliver such Definitive Securities for
Series B Securities to the holders thereof as indicated in such
Officers Certificate.
SECTION 2.08 Replacement Securities.
If any mutilated Security is surrendered to the Trustee, or the
Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Security, the Company shall issue
and the Trustee shall authenticate a replacement Security if the
Trustee's requirements for replacements of Securities are met. An
indemnity bond must be supplied by the holder that is sufficient in
the judgment of the Trustee and the Company to protect the Company,
the Trustee, any Agent or any authenticating agent from any loss that
any of them may suffer if a Security is replaced. The Company or the
Trustee may charge for its expenses in replacing a Security.
Every replacement Security is an obligation of the Company and
shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Securities duly issued hereunder.
SECTION 2.09 Treasury Securities.
In determining whether the holders of the required principal
amount of Securities have concurred in any direction, waiver or
consent, Securities owned by the Company or any Affiliate of the
Company shall be considered as though not outstanding, except that for
purposes of determining whether the Trustee shall be protected in
relying on any such direction, waiver or consent, only Securities that
a Responsible Officer of the Trustee actually knows to be so owned
shall be so considered.
SECTION 2.10 Temporary Securities.
Pending the preparation of Definitive Securities, the Company may
execute, and upon Company Order the Trustee shall authenticate and
make available for delivery, temporary Securities that are printed,
lithographed, typewritten, mimeographed or otherwise reproduced, in
any authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations
as the officers executing such Securities may determine, as
conclusively evidenced by their execution of such Securities.
If temporary Securities are issued, the Company shall cause
Definitive Securities to be prepared without unreasonable delay. The
Definitive Securities shall be printed, typewritten, lithographed or
engraved, or provided by any combination thereof, or in any other
manner permitted by the rules and regulations of any applicable
securities exchange, all as determined by the officers executing such
Definitive Securities. After the preparation of Definitive
Securities, the temporary Securities shall be exchangeable for
Definitive Securities upon surrender of the temporary Securities at
the office or agency maintained by the Company for such purpose
pursuant to Section 3.02 hereof, without charge to the holder. Upon
surrender for cancellation of any one or more temporary Securities,
the Company shall execute, and the Trustee shall authenticate and make
available for delivery in exchange therefor, the same aggregate
principal amount of Definitive Securities of authorized denominations.
Until so exchanged, the temporary Securities shall in all respects be
entitled to the same benefits under this Indenture as Definitive
Securities.
SECTION 2.11 Cancellation.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Trustee and no one else shall cancel all Securities
surrendered for registration of transfer, exchange, payment,
replacement or cancellation and shall retain or destroy canceled
Securities in accordance with its normal practices (subject to the
record retention requirement of the Exchange Act) unless the Company
directs them to be returned to it. The Company may not issue new
Securities to replace Securities that have been redeemed or paid or
that have been delivered to the Trustee for cancellation. All
canceled Securities not destroyed by the Trustee shall be delivered to
the Company.
SECTION 2.12 Defaulted Interest.
Any interest on any Security that is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date
(herein called Defaulted Interest ) shall forthwith cease to be
payable to the holder on the relevant regular record date by virtue of
having been such holder; and such Defaulted Interest shall be paid by
the Company, at its election, as provided in clause (a) or clause (b)
below:
a. The Company may make payment of any Defaulted Interest
on Securities to the Persons in whose names such Securities (or their
respective Predecessor Securities) are registered at the close of
business on a special record date for the payment of such Defaulted
Interest, which shall be fixed in the following manner: the Company
shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each such Security and the date of the
proposed payment, and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed
to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the
date of the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted
Interest as in this clause provided. Thereupon the Trustee shall fix
a special record date for the payment of such Defaulted Interest which
shall not be more than 15 nor less than 10 days prior to the date of
the proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such special record date and, in the
name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the special record
date therefor to be mailed, first class postage prepaid, to each
Securityholder at his or her address as it appears in the Security
Register, not less than 10 days prior to such special record date.
Notice of the proposed payment of such Defaulted Interest and the
special record date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Persons in whose names such
Securities (or their respective Predecessor Securities) are registered
on such special record date and shall be no longer payable pursuant to
the following clause (b).
b. The Company may make payment of any Defaulted Interest
on any Securities in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may
be listed, and upon such notice as may be required by such exchange,
if, after notice given by the Company to the Trustee of the proposed
payment pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee.
SECTION 2.13 CUSIP Numbers.
The Company in issuing the Securities may use CUSIP numbers (if
then generally in use), and, if so, the Trustee shall use CUSIP
numbers in notices of redemption as a convenience to Securityholders;
provided that any such notice may state that no representation is made
as to the correctness of such numbers either as printed on the
Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers
printed on the Securities, and any such redemption shall not be
affected by any defect in or omission of such numbers. The Company
will promptly notify the Trustee of any change in the CUSIP numbers.
ARTICLE III
PARTICULAR COVENANTS OF THE COMPANY
SECTION 3.01 Payment of Principal, Premium and Interest.
The Company covenants and agrees, for the benefit of the holders
of the Securities, that it will duly and punctually pay or cause to be
paid the principal of and premium, if any, and interest on the
Securities at the place, at the respective times and in the manner
provided herein. The Company further covenants to pay any and all
amounts including, without limitation, Liquidated Damages, if any, on
the dates and in the manner required under the Registration Rights
Agreement.
SECTION 3.02 Offices for Notices and Payments, etc.
So long as any of the Securities remains outstanding, the Company
will maintain in the Borough of Manhattan, The City of New York, an
office or agency where the Securities may be presented for payment, an
office or agency where the Securities may be presented for
registration of transfer and for exchange as in this Indenture
provided and an office or agency where notices and demands to or upon
the Company in respect of the Securities or of this Indenture may be
served. The Company will give to the Trustee written notice of the
location of any such office or agency and of any change of location
thereof. Until otherwise designated from time to time by the Company
in a notice to the Trustee, any such office or agency for all of the
above purposes shall be the Principal office of the Trustee. In case
the Company shall fail to maintain any such office or agency in the
Borough of Manhattan, The City of New York, or shall fail to give such
notice of the location or of any change in the location thereof,
presentations and demands may be made and notices may be served at the
Principal office of the Trustee.
In addition to any such office or agency, the Company may from
time to time designate one or more offices or agencies outside the
Borough of Manhattan, The City of New York, where the Securities may
be presented for payment, for registration of transfer and for
exchange in the manner provided in this Indenture, and the Company may
from time to time rescind such designation, as the Company may deem
desirable or expedient; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation
to maintain any such office or agency in the Borough of Manhattan, The
City of New York, for the purposes above mentioned. The Company will
give to the Trustee prompt written notice of any such designation or
rescission thereof; provided, further, that the Company shall at all
times maintain a paying agent in each such office or agency.
SECTION 3.03 Appointments to Fill Vacancies in Trustee's
Office.
The Company, whenever necessary to avoid or fill a vacancy in the
office of Trustee, will appoint, in the manner provided in Section
6.10, a Trustee, so that there shall at all times be a Trustee
hereunder.
SECTION 3.06 Provision as to Paying Agent.
a. If the Company shall appoint a paying agent other than
the Trustee with respect to the Securities, it will cause such paying
agent to execute and deliver to the Trustee an instrument in which
such agent shall agree with the Trustee, subject to the provisions of
this Section 3.04,
(1) that it will hold all sums held by it as such
agent for the payment of the principal of and
premium, if any, or interest on the Securities
(whether such sums have been paid to it by the
Company or by any other obligor on the
Securities) in trust for the benefit of the
holders of the Securities; and
(2) that it will give the Trustee notice of any
failure by the Company (or by any other obligor
on the Securities) to make any payment of the
principal of and premium or interest on the
Securities when the same shall be due and
payable.
b. if the Company shall act as its own paying agent, it
will, on or before each due date of the principal of
and premium, if any, or interest on the Securities, set
aside, segregate and hold in trust for the benefit of
the holders of the Securities a sum sufficient to pay
such principal, premium or interest so becoming due and
will notify the Trustee of any failure to take such
action and of any failure by the Company (or by any
other obligor under the Securities) to make any payment
of the principal of and premium, if any, or interest on
the Securities when the same shall become due and
payable.
c. Anything in this Section 3.04 to the contrary
notwithstanding, the Company may, at any time, for the purpose of
obtaining a satisfaction and discharge with respect to the Securities
hereunder, or for any other reason, pay or cause to be paid to the
Trustee all sums held in trust for the Securities by any paying agent
hereunder, as required by this Section 3.04, such sums to be held by
the Trustee upon the trusts herein contained.
d. Anything in this Section 3.04 to the contrary
notwithstanding, the agreement to hold sums in trust as provided in
this Section 3.04 is subject to Sections 11.03 and 11.04.
SECTION 3.05 Certificate to Trustee.
The Company will deliver to the Trustee on or before 120 days
after the end of each fiscal year in each year, commencing with the
first fiscal year ending after the date hereof, so long as Securities
are outstanding hereunder, an Officers Certificate, one of the
signers of which shall be the principal executive, principal financial
or principal accounting officer of the Company, stating that (i) in
the course of the performance by the signers of their duties as
officers of the Company they would normally have knowledge of any
Default by the Company in the performance of any covenants contained
herein and (ii) whether or not they have knowledge of any such Default
and, if so, specifying each such Default of which the signers have
knowledge and the nature thereof.
SECTION 3.06 Compliance with Consolidation Provisions.
The Company will not, while any of the Securities remain
outstanding, consolidate with, or merge with or into, any other
Person, or sell, convey, transfer or lease all or substantially all of
its property and assets to any other Person unless the provisions of
Article Ten hereof are complied with.
SECTION 3.07 Limitation on Dividends.
The Company will not (i) declare or pay any dividends or
distributions on, or redeem, purchase, acquire, or make a liquidation
payment with respect to, any of the Company s capital stock (which
includes common and preferred stock) or (ii) make any payment of
principal, interest or premium, if any, on or repay or repurchase or
redeem any debt securities of the Company (including any Other
Debentures) that rank pari passu with or junior in right of payment to
the Securities or (iii) make any guarantee payments with respect to
any guarantee by the Company of the debt securities of any Subsidiary
of the Company (including Other Guarantees) if such guarantee ranks
pari passu or junior in right of payment to the Securities (other than
(a) dividends or distributions in shares of, or options, warrants or
rights to subscribe for or purchase shares of, Common Stock of the
Company, (b) any declaration of a dividend in connection with the
implementation of a shareholder s rights plan, or the issuance of
stock under any such plan in the future, or the redemption or
repurchase of any such rights pursuant thereto, (c) payments under the
Capital Securities Guarantee, (d) as a result of a reclassification of
the Company s capital stock or the exchange or the conversion of one
class or series of the Company's capital stock for another class or
series of the Company's capital stock, (e) the purchase of fractional
interests in shares of the Company's capital stock pursuant to the
conversion or exchange provisions of such capital stock or the
security being converted or exchanged, and (f) purchases of Common
Stock related to the issuance of Common Stock or rights under any of
the Company's benefit plans for its directors, officers or employees
or any of the Company's dividend reinvestment plans) if at such time
(1) there shall have occurred any event of which the Company has
actual knowledge that (A) constitutes a Default or an Event of Default
and (B) in respect of which the Company shall not have taken
reasonable steps to cure, (2) if such Securities are held by the
Property Trustee, the Company shall be in default with respect to its
payment of any obligations under the Capital Securities Guarantee or
(3) the Company shall have given notice of its election of the
exercise of its right to extend the interest payment period pursuant
to Section 16.01 and any such extension shall be continuing.
SECTION 3.07 Covenants as to First of America Capital Trust.
In the event Securities are issued to First of America Capital
Trust or a trustee of such trust in connection with the issuance of
Trust Securities by First of America Capital Trust, for so long as
such Trust Securities remain outstanding, the Company will (i)
maintain 100% direct ownership of the Common Securities of First of
America Capital Trust; provided, however, that any successor of the
Company, permitted pursuant to Article Ten, may succeed to the
Company s ownership of such Common Securities, (ii) use its reasonable
efforts to cause First of America Capital Trust (a) to remain a
business trust, except in connection with a distribution of
Securities, the redemption of all of the Trust Securities of First of
America Capital Trust or certain mergers, conversions, consolidations
or amalgamations, each as permitted by the Declaration of First of
America Capital Trust, and (b) to continue to be treated as a grantor
trust and not as an association taxable as a corporation for United
States federal income tax purposes and (iii) to use its reasonable
efforts to cause each holder of Trust Securities to be treated as
owning an undivided beneficial interest in the Securities.
SECTION 3.08 Payment of Expenses.
In connection with the offering, sale and issuance of the
Securities to First of America Capital Trust and in connection with
the sale of the Trust Securities by First of America Capital Trust,
the Company, in its capacity as borrower with respect to the
Securities, shall:
a. pay all costs and expenses relating to the offering,
sale and issuance of the Securities, including commissions to the
initial purchasers payable pursuant to the Purchase Agreement, all
fees and expenses, to the extent provided for in the Registration
Rights Agreement, in connection with any exchange offer or other
action to be taken pursuant to the Registration Rights Agreement and
the compensation of the Trustee in accordance with the provisions of
Section 6.06;
b. pay all costs and expenses of First of America Capital
Trust (including, but not limited to, costs and expenses relating to
the organization of First of America Capital Trust, the offering, sale
and issuance of the Trust Securities (including commissions to the
initial purchasers in connection therewith), the fees and expenses of
the Property Trustee and the Delaware Trustee, the costs and expenses
relating to the operation of First of America Capital Trust, including
without limitation, costs and expenses of accountants, attorneys,
statistical or bookkeeping services, expenses for printing and
engraving and computing or accounting equipment, paying agent(s),
registrar(s), transfer agent(s), duplicating, travel and telephone and
other telecommunications expenses and costs and expenses incurred in
connection with the acquisition, financing, and disposition of First
of America Capital Trust assets;
c. be primarily and fully liable for any indemnification
obligations of First of America Capital Trust arising with respect to
the Declaration;
d. pay any and all taxes (other than United States
withholding taxes attributable to First of America Capital Trust or
its assets) and all liabilities, costs and expenses with respect to
such taxes of First of America Capital Trust; and
e. pay all other fees, expenses, debts and obligations
(other than the Trust Securities) related to First of America Capital
Trust.
SECTION 3.9 Payment Upon Resignation or Removal.
Upon termination of this Indenture or the removal or resignation
of the Trustee, unless otherwise stated, the Company shall pay to the
Trustee all amounts accrued and owing to the date of such termination,
removal or resignation. Upon termination of the Declaration or the
removal or resignation of the Delaware Trustee or the Property
Trustee, as the case may be, pursuant to Section 5.7 of the
Declaration, the Company shall pay to the Delaware Trustee or the
Property Trustee, as the case may be, all amounts accrued and owing to
the date of such termination, removal or resignation.
ARTICLE IV
SECURITYHOLDERS' LISTS AND REPORTS BY THE
COMPANY AND THE TRUSTEE
SECTION 4.01 Securityholders' Lists.
The Company covenants and agrees that it will furnish or cause to
be furnished to the Trustee:
a. on a semi-annual basis on each regular record date for
the Securities, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Securityholders as of such
record date; and
b. at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of any such
request, a list of similar form and content as of a date not more than
15 days prior to the time such list is furnished; provided, however,
that no such lists need be furnished so long as the Trustee is in
possession thereof by reason of its acting as Security registrar.
SECTION 4.02 Preservation and Disclosure of Lists.
a. The Trustee shall preserve, in as current a form as is
reasonably practicable, all information as to the names and addresses
of the holders of the Securities (1) contained in the most recent list
furnished to it as provided in Section 4.01 or (2) received by it in
the capacity of Securities registrar (if so acting) hereunder. The
Trustee may destroy any list furnished to it as provided in Section
4.01 upon receipt of a new list so furnished.
b. In case three or more holders of Securities
(hereinafter referred to as applicants ) apply in writing to the
Trustee and furnish to the Trustee reasonable proof that each such
applicant has owned a Security for a period of at least six months
preceding the date of such application, and such application states
that the applicants desire to communicate with other holders of
Securities or with holders of all Securities with respect to their
rights under this Indenture and is accompanied by a copy of the form
of proxy or other communication which such applicants propose to
transmit, then the Trustee shall within five Business Days after the
receipt of such application, at its election, either:
(1) afford such applicants access to the information
preserved at the time by the Trustee in
accordance with the provisions of subsection (a)
of this Section 4.02; or
(2) inform such applicants as to the approximate
number of holders of all Securities, whose names
and addresses appear in the information preserved
at the time by the Trustee in accordance with the
provisions of subsection (a) of this Section
4.02, and as to the approximate cost of mailing
to such Securityholders the form of proxy or
other communication, if any, specified in such
application.
If the Trustee shall elect not to afford such
applicants access to such information, the Trustee shall, upon the
written request of such applicants, mail to each Securityholder whose
name and address appear in the information preserved at the time by
the Trustee in accordance with the provisions of subsection (a) of
this Section 4.02 a copy of the form of proxy or other communication
which is specified in such request with reasonable promptness after a
tender to the Trustee of the material to be mailed and of payment, or
provision for the payment, of the reasonable expenses of mailing,
unless within five days after such tender, the Trustee shall mail to
such applicants and file with the Commission, together with a copy of
the material to be mailed, a written statement to the effect that, in
the opinion of the Trustee, such mailing would be contrary to the best
interests of the holders of the Securities or would be in violation of
applicable law. Such written statement shall specify the basis of
such opinion. If the Commission, after opportunity for a hearing upon
the objections specified in the written statement so filed, shall
enter an order refusing to sustain any of such objections or if, after
the entry of an order sustaining one or more of such objections, the
Commission shall find, after notice and opportunity for hearing, that
all the objections so sustained have been met and shall enter an order
so declaring, the Trustee shall mail copies of such material to all
such Securityholders with reasonable promptness after the entry of
such order and the renewal of such tender; otherwise the Trustee shall
be relieved of any obligation or duty to such applicants respecting
their application.
c. Each and every holder of Securities, by receiving and
holding the same, agrees with the Company and the Trustee that neither
the Company nor the Trustee nor any paying agent shall be held
accountable by reason of the disclosure of any such information as to
the names and addresses of the holders of Securities in accordance
with the provisions of subsection (b) of this Section 4.02, regardless
of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing any
material pursuant to a request made under said subsection (b).
SECTION 4.03 Reports of the Company.
a. The Company covenants and agrees to file with the
Trustee, within 15 days after the date on which the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) that the Company may
be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act; or, if the Company is not required
to file information, documents or reports pursuant to either of such
sections, then to file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by
the Commission, such of the supplementary and periodic information,
documents and reports that may be required pursuant to Section 13 of
the Exchange Act in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in
such rules and regulations.
b. The Company covenants and agrees to file with the
Trustee and the Commission, in accordance with the rules and
regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants provided
for in this Indenture as may be required from time to time by such
rules and regulations.
c. The Company covenants and agrees to transmit by mail to
all holders of Securities, as the names and addresses of such holders
appear upon the Security Register, within 30 days after the filing
thereof with the Trustee, such summaries of any information, documents
and reports required to be filed by the Company pursuant to
subsections (a) and (b) of this Section 4.03 as may be required by
rules and regulations prescribed from time to time by the Commission.
d. Delivery of such reports, information and documents to
the Trustee is for informational purposes only and the Trustee s
receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information
contained therein, including the Company s compliance with any of its
covenants hereunder (as to which the Trustee is entitled to rely
exclusively on Officers Certificates).
e. So long as is required for an offer or sale of the
Securities to qualify for an exemption under Rule 144A under the
Securities Act, the Company shall, upon request, provide the
information required by clause (d)(4) thereunder to each holder of
Securities and to each beneficial owner and prospective purchaser of
Securities identified by any holder of Securities, unless such
information is furnished to the Commission pursuant to Section 13 or
15(d) of the Exchange Act.
SECTION 4.04 Reports by the Trustee.
a. The Trustee shall transmit to Securityholders such
reports concerning the Trustee and its actions under this Indenture as
may be required pursuant to the Trust Indenture Act at the times and
in the manner provided pursuant thereto. If required by Section
313(a) of the Trust Indenture Act, the Trustee shall, within sixty
days after each January 15 following the date of this Indenture,
commencing January 15, 1998, deliver to Securityholders a brief
report, dated as of such January 15, which complies with the
provisions of such Section 313(a).
b. A copy of each such report shall, at the time of such
transmission to Securityholders, be filed by the Trustee with each
stock exchange, if any, upon which the Securities are listed, with the
Commission and with the Company. The Company will promptly notify the
Trustee when the Securities are listed on any stock exchange.
ARTICLE V
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.01 Events of Default.
One or more of the following events of default shall constitute
an Event of Default hereunder (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or
order of any court or any order, rule or regulation of any
administrative or governmental body):
a. default in the payment of any interest upon any
Security or Other Debenture when it becomes due and payable, and
continuance of such default for a period of 30 days; provided,
however, that a valid extension of an interest payment period by the
Company in accordance with the terms hereof shall not constitute a
default in the payment of interest for this purpose;
b. default in the payment of all or any part of the
principal of (or premium, if any, on) any Security or Other Debenture
as and when the same shall become due and payable either at maturity,
upon redemption, by declaration of acceleration of maturity or
otherwise;
c. default in the performance, or breach, of any covenant
or warranty of the Company in this Indenture (other than a covenant or
warranty a default in the performance of which or the breach of which
is elsewhere in this Section specifically dealt with), and continuance
of such default or breach for a period of 90 days after there has been
given, by registered or certified mail, to the Company by the Trustee
or to the Company and the Trustee by the holders of at least 25% in
aggregate principal amount of the outstanding 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;
d. a court having jurisdiction in the premises shall enter
a decree or order for relief in respect of the Company in an
involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of the Company or for any substantial part of its property,
or ordering the winding-up or liquidation of its affairs and such
decree or order shall remain unstayed and in effect for a period of 90
consecutive days; or
e. the Company shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, shall consent to the entry of an order for relief
in an involuntary case under any such law, or shall consent to the
appointment of or taking possession by a receiver, liquidator,
assignee, trustee, custodian, sequestrator (or other similar official)
of the Company or of any substantial part of its property, or shall
make any general assignment for the benefit of creditors, or shall
fail generally to pay its debts as they become due.
If an Event of Default with respect to Securities at the time
outstanding occurs and is continuing, then in every such case the
Trustee or the holders of not less than 25% in aggregate principal
amount of the Securities then outstanding may declare the principal
amount of all Securities to be due and payable immediately, by a
notice in writing to the Company (and to the Trustee if given by the
holders of the outstanding Securities), and upon any such declaration
the same shall become immediately due and payable.
The foregoing provisions, however, are subject to the condition
that, if at any time after the principal of the Securities shall have
been so declared due and payable, and before any judgment or decree
for the payment of the moneys due shall have been obtained or entered
as hereinafter provided, (i) the Company shall pay or shall deposit
with the Trustee a sum sufficient to pay (A) all matured installments
of interest upon all the Securities and the principal of and premium,
if any, on any and all Securities that shall have become due otherwise
than by acceleration (with interest upon such principal and premium,
if any, and, to the extent that payment of such interest is
enforceable under applicable law, on overdue installments of interest,
at the same rate as the rate of interest specified in the Securities
to the date of such payment or deposit) and (B) such amount as shall
be sufficient to cover reasonable compensation to the Trustee and each
predecessor Trustee, their respective agents, attorneys and counsel,
and all other expenses and liabilities incurred, and all advances
made, by the Trustee and each predecessor Trustee except as a result
of negligence or bad faith, and (ii) any and all Events of Default
under the Indenture shall have been cured, waived or otherwise
remedied as provided herein, then, in every such case, the holders of
a majority in aggregate principal amount of the Securities then
outstanding, by written notice to the Company and to the Trustee, may
rescind and annul such declaration and its consequences, but no such
waiver or rescission and annulment shall extend to or shall affect any
subsequent default or shall impair any right consequent thereon.
In case the Trustee shall have proceeded to enforce any right
under this Indenture and such proceedings shall have been discontinued
or abandoned because of such rescission and annulment or for any other
reason, or shall have been determined adversely to the Trustee, then
and in every such case the Company, the Trustee and the holders of the
Securities shall be restored respectively to their several positions
and rights hereunder, and all rights, remedies and powers of the
Company, the Trustee and the holders of the Securities shall continue
as though no such proceeding had been taken.
SECTION 5.02 Payment of Securities on Default; Suit Therefor.
The Company covenants that (a) in case default shall be made in
the payment of any installment of interest upon any of the Securities
as and when the same shall become due and payable, and such default
shall have continued for a period of 30 days, or (b) in case default
shall be made in the payment of the principal of or premium, if any,
on any of the Securities as and when the same shall have become due
and payable, whether at maturity of the Securities or upon redemption
or by declaration of acceleration of maturity or otherwise, then, upon
demand of the Trustee, the Company will pay to the Trustee, for the
benefit of the holders of the Securities, the whole amount that then
shall have become due and payable on all such Securities for principal
and premium, if any, or interest, or both, as the case may be, with
interest upon the overdue principal and premium, if any, and (to the
extent that payment of such interest is enforceable under applicable
law and, if the Securities are held by First of America Capital Trust
or a trustee of such trust, without duplication of any other amounts
paid by First of America Capital Trust or trustee in respect thereof)
upon the overdue installments of interest at the rate borne by the
Securities; and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including a
reasonable compensation to the Trustee, its agents, attorneys and
counsel, and any expenses or liabilities incurred by the Trustee
hereunder other than through its negligence or bad faith.
In case the Company shall fail forthwith to pay such amounts upon
such demand, the Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any actions or
proceedings at law or in equity for the collection of the sums so due
and unpaid, and may prosecute any such action or proceeding to
judgment or final decree, and may enforce any such judgment or final
decree against the Company or any other obligor on the Securities and
collect in the manner provided by law out of the property of the
Company or any other obligor on the Securities wherever situated the
moneys adjudged or decreed to be payable.
In case there shall be pending proceedings for the bankruptcy or
for the reorganization of the Company or any other obligor on the
Securities under Title 11, United States Code, or any other applicable
law, or in case a receiver or trustee shall have been appointed for
the property of the Company or such other obligor, or in the case of
any other similar judicial proceedings relative to the Company or
other obligor upon the Securities, or to the creditors or property of
the Company or such other obligor, the Trustee, irrespective of
whether the principal of the Securities shall then be due and payable
as therein expressed or by declaration or otherwise and irrespective
of whether the Trustee shall have made any demand pursuant to the
provisions of this Section 5.02, shall be entitled and empowered, by
intervention in such proceedings or otherwise, to file and prove a
claim or claims for the whole amount of principal and interest owing
and unpaid in respect of the Securities and, in case of any judicial
proceedings, to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for reasonable compensation to the
Trustee and each predecessor Trustee, and their respective agents,
attorneys and counsel, and for reimbursement of all expenses and
liabilities incurred, and all advances made, by the Trustee and each
predecessor Trustee, except as a result of negligence or bad faith)
and of the Securityholders allowed in such judicial proceedings
relative to the Company or any other obligor on the Securities, or to
the creditors or property of the Company or such other obligor, unless
prohibited by applicable law and regulations, to vote on behalf of the
holders of the Securities in any election of a trustee or a standby
trustee in arrangement, reorganization, liquidation or other
bankruptcy or insolvency proceedings or person performing similar
functions in comparable proceedings, and to collect and receive any
moneys or other property payable or deliverable on any such claims,
and to distribute the same after the deduction of its charges and
expenses; and any receiver, assignee or trustee in bankruptcy or
reorganization is hereby authorized by each of the Securityholders to
make such payments to the Trustee, and, in the event that the Trustee
shall consent to the making of such payments directly to the
Securityholders, to pay to the Trustee such amounts as shall be
sufficient to cover reasonable compensation to the Trustee, each
predecessor Trustee and their respective agents, attorneys and
counsel, and all other expenses and liabilities incurred, and all
advances made, by the Trustee and each predecessor Trustee except as a
result of negligence or bad faith.
Nothing herein contained shall be construed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any holder
thereof or to authorize the Trustee to vote in respect of the claim of
any Securityholder in any such proceeding.
All rights of action and of asserting claims under this
Indenture, or under any of the Securities, may be enforced by the
Trustee without the possession of any of the Securities, or the
production thereof in any trial or other proceeding relative thereto,
and any such suit or proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any
recovery of judgment shall be for the ratable benefit of the holders
of the Securities.
In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation of any provision of this
Indenture to which the Trustee shall be a party) the Trustee shall be
held to represent all the holders of the Securities, and it shall not
be necessary to make any holders of the Securities parties to any such
proceedings.
SECTION 5.03 Application of Moneys Collected by Trustee.
Any moneys collected by the Trustee shall be applied in the order
following, at the date or dates fixed by the Trustee for the
distribution of such moneys, upon presentation of the Securities in
respect of which moneys have been collected, and stamping thereon the
payment, if only partially paid, and upon surrender thereof if fully
paid:
First: To the payment of costs and expenses of collection
applicable to the Securities and reasonable compensation to the
Trustee, its agents, attorneys and counsel, and of all other expenses
and liabilities incurred, and all advances made, by the Trustee except
as a result of its negligence or bad faith;
Second: To the payment of all Senior Indebtedness of the Company
if and to the extent required by Article Fifteen;
Third: To the payment of the amounts then due and unpaid upon
Securities for principal of (and premium, if any) and interest on the
Securities, in respect of which or for the benefit of which money has
been collected, ratably, without preference of priority of any kind,
according to the amounts due on such Securities for principal (and
premium, if any) and interest, respectively; and
Fourth: To the Company.
SECTION 5.04 Proceedings by Securityholders.
No holder of any Security shall have any right by virtue of or by
availing of any provision of this Indenture to institute any suit,
action or proceeding in equity or at law upon or under or with respect
to this Indenture or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless such holder previously shall
have given to the Trustee written notice of an Event of Default and of
the continuance thereof with respect to the Securities specifying such
Event of Default, as hereinbefore provided, and unless also the
holders of not less than 25% in aggregate principal amount of the
Securities then outstanding shall have made written request upon the
Trustee to institute such action, suit or proceeding in its own name
as Trustee hereunder and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby, and the Trustee for 60
days after its receipt of such notice, request and offer of indemnity
shall have failed to institute any such action, suit or proceeding, it
being understood and intended, and being expressly covenanted by the
taker and holder of every Security with every other taker and holder
and the Trustee, that no one or more holders of Securities shall have
any right in any manner whatever by virtue of or by availing of any
provision of this Indenture to affect, disturb or prejudice the rights
of any other holder of Securities, or to obtain or seek to obtain
priority over or preference to any other such holder, or to enforce
any right under this Indenture, except in the manner herein provided
and for the equal, ratable and common benefit of all holders of
Securities.
Notwithstanding any other provisions in this Indenture, however,
the right of any holder of any Security to receive payment of the
principal of (premium, if any) and interest on such Security, on or
after the same shall have become due and payable, or to institute suit
for the enforcement of any such payment, shall not be impaired or
affected without the consent of such holder, and by accepting a
Security hereunder it is expressly understood, intended and covenanted
by the taker and holder of every Security with every other such taker
and holder and the Trustee, that no one or more holders of Securities
shall have any right in any manner whatsoever by virtue or by availing
of any provision of this Indenture to affect, disturb or prejudice the
rights of the holders of any other Securities, or to obtain or seek to
obtain priority over or preference to any other such holder, or to
enforce any right under this Indenture, except in the manner herein
provided and for the equal, ratable and common benefit of all holders
of Securities. For the protection and enforcement of the provisions
of this Section, each and every Securityholder and the Trustee shall
be entitled to such relief as can be given either at law or in equity.
The Company and the Trustee acknowledge that pursuant to the
Declaration, the holders of Capital Securities are entitled, in the
circumstances and subject to the limitations set forth therein, to
commence a Direct Action with respect to any Event of Default under
this Indenture and the Securities.
SECTION 5.05 Proceedings by Trustee.
In case an Event of Default occurs with respect to Securities and
is continuing, the Trustee may in its discretion proceed to protect
and enforce the rights vested in it by this Indenture by such
appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any of such rights, either by suit in
equity or by action at law or by proceeding in bankruptcy or
otherwise, whether for the specific enforcement of any covenant or
agreement contained in this Indenture or in aid of the exercise of any
power granted in this Indenture, or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
SECTION 5.06 Remedies Cumulative and Continuing.
All powers and remedies given by this Article V to the Trustee or
to the Securityholders shall, to the extent permitted by law, be
deemed cumulative and not exclusive of any other powers and remedies
available to the Trustee or the holders of the Securities, by judicial
proceedings or otherwise, to enforce the performance or observance of
the covenants and agreements contained in this Indenture or otherwise
established with respect to the Securities, and no delay or omission
of the Trustee or of any holder of any of the Securities to exercise
any right or power accruing upon any Event of Default occurring and
continuing as aforesaid shall impair any such right or power, or shall
be construed to be a waiver of any such default or an acquiescence
therein, and, subject to the provisions of Section 5.04, every power
and remedy given by this Article V or by law to the Trustee or to the
Securityholders may be exercised from time to time, and as often as
shall be deemed expedient, by the Trustee or by the Securityholders.
SECTION 5.07 Direction of Proceedings and Waiver of Defaults
by Majority of Securityholders.
The holders of a majority in aggregate principal amount of the
Securities at the time outstanding shall have the right to direct the
time, method, and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred
on the Trustee; provided, however, that (subject to the provisions of
Section 6.01) the Trustee shall have the right to decline to follow
any such direction if the Trustee shall determine that the action so
directed would be unjustly prejudicial to the holders not taking part
in such action or proceeding so directed, if the Trustee being advised
by counsel determines that the action or proceeding so directed may
not lawfully be taken or if the Trustee in good faith by its board of
directors or trustees, executive committee, or a trust committee of
directors or trustees and/or Responsible Officers shall determine that
the action or proceedings so directed would involve the Trustee in
personal liability. Prior to any declaration accelerating the
maturity of the Securities, the holders of a majority in aggregate
principal amount of the Securities at the time outstanding may on
behalf of the holders of all of the Securities waive any past default
or Event of Default and its consequences, except a default (a) in the
payment of principal of or premium, if any, or interest on any of the
Securities or (b) in respect of covenants or provisions hereof that
cannot be modified or amended without the consent of the holder of
each Security affected; provided, however, that if the Securities are
held by the Property Trustee, such waiver or modification to such
waiver shall not be effective until the holders of a majority in
aggregate liquidation amount of Trust Securities shall have consented
to such waiver or modification to such waiver; provided further, that
if the consent of the holder of each outstanding Security is required,
such waiver shall not be effective until each holder of the Trust
Securities shall have consented to such waiver. Upon any such waiver,
the default covered thereby shall be deemed to be cured for all
purposes of this Indenture, and the Company, the Trustee and the
holders of the Securities shall be restored to their former positions
and rights hereunder, respectively; no such waiver, however, shall
extend to any subsequent or other default or impair any right
consequent thereon. Whenever any default or Event of Default
hereunder shall have been waived as permitted by this Section 5.07,
said default or Event of Default shall for all purposes of the
Securities and this Indenture be deemed to have been cured and to be
not continuing.
SECTION 5.08 Notice of Defaults.
The Trustee shall, within 90 days after the occurrence of a
Default with respect to the Securities, mail to all Securityholders,
as the names and addresses of such holders appear upon the Security
register, notice of all Defaults known to the Trustee, unless such
Defaults shall have been cured before the giving of such notice;
provided that, except in the case of a Default arising from the non-
payment of the principal of or premium, if any, or interest on any of
the Securities, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive
committee, or a trust committee of directors and/or Responsible
Officers of the Trustee determines in good faith that the withholding
of such notice is in the interests of the Securityholders; provided
further, that in the case of any Default of the character specified in
Section 5.01(c) no such notice to Securityholders shall be given until
at least 60 days after the occurrence thereof, but shall be given
within 90 days after such occurrence.
SECTION 5.09 Undertaking to Pay Costs.
All parties to this Indenture agree, and each holder of any
Security by his acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any
suit against the Trustee for any action taken or omitted by it as
Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable
attorneys fees and expenses, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or
defenses made by such party litigant; provided, however, that the
provisions of this Section 5.09 shall not apply to any suit instituted
by the Trustee, to any suit instituted by any Securityholder, or group
of Securityholders, holding in the aggregate more than 10% in
aggregate principal amount of the Securities outstanding, or to any
suit instituted by any Securityholder for the enforcement of the
payment of the principal of (or premium, if any) or interest on any
Security against the Company on or after the same shall have become
due and payable.
ARTICLE VI
CONCERNING THE TRUSTEE
SECTION 6.01 Duties and Responsibilities of the Trustee.
With respect to the holders of the Securities issued hereunder,
the Trustee, prior to the occurrence of an Event of Default and after
the curing or waiving of all Events of Default that may have occurred,
undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture. In case an Event of Default
has occurred (that has not been cured or waived) the Trustee shall
exercise such of the rights and powers vested in it by this Indenture,
and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the
conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct, except that:
a. prior to the occurrence of an Event of Default and
after the curing or waiving of all Events of Default which may have
occurred:
(1) the duties and obligations of the Trustee shall
be determined solely by the express provisions of
this Indenture, and the Trustee shall not be
liable except for the performance of such duties
and obligations as are specifically set forth in
this Indenture, and no implied covenants or
obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to
the truth of the statements and the correctness
of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee
and conforming to the requirements of this
Indenture; provided, however, that in the case of
any such certificates or opinions that by any
provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be
under a duty to examine the same to determine
whether or not they conform to the requirements
of this Indenture;
b. the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or Officers of
the Trustee, unless it shall be proved that the Trustee was negligent
in ascertaining the pertinent facts; and
c. the 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 Securityholders pursuant to Section 5.07,
relating to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee, under this Indenture.
None of the provisions contained in this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties
or in the exercise of any of its rights or powers, if there is
reasonable ground for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this
Indenture and that adequate indemnity against such risk is not
reasonably assured to it.
SECTION 6.02 Reliance on Documents, Opinions, etc.
Except as otherwise provided in Section 6.01:
a. the Trustee may rely, and shall be protected in acting
or refraining from acting, upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent,
order, bond, note, debenture or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party
or parties;
b. any request, direction, order or demand of the Company
mentioned herein may be sufficiently evidenced by an Officers
Certificate (unless other evidence in respect thereof be herein
specifically prescribed), and any Board Resolution may be evidenced to
the Trustee by a copy thereof certified by the Secretary or an
Assistant Secretary of the Company;
c. the Trustee may consult with counsel of its selection
and any advice or Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or
suffered omitted by it hereunder in good faith and in accordance with
such advice or Opinion of Counsel;
d. the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the
request, order or direction of any of the Securityholders, pursuant to
the provisions of this Indenture, unless such Securityholders shall
have offered to the Trustee reasonable security or indemnity against
the costs, expenses and liabilities which may be incurred therein or
thereby;
e. the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this
Indenture; provided, however, that nothing contained herein shall
relieve the Trustee of the obligation, upon the occurrence of an Event
of Default (that has not been cured or waived), to exercise such of
the rights and powers vested in it by this Indenture, and to use the
same degree of care and skill in their exercise, as a prudent person
would exercise or use under the circumstances in the conduct of his
own affairs;
f. the 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, coupon or other paper or
document, unless requested in writing to do so by the holders of a
majority in aggregate principal amount of the outstanding Securities;
provided, however, that if the payment within a reasonable time to the
Trustee of the costs, expenses or liabilities likely to be incurred by
it in the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security
afforded to it by the terms of this Indenture, the Trustee may require
reasonable indemnity against such expense or liability as a condition
to so proceeding; and
g. the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents (including any Authenticating Agent) or attorneys, and
the Trustee shall not be responsible for any misconduct or negligence
on the part of any such agent or attorney appointed by it with due
care.
SECTION 6.03 No Responsibility for Recitals, etc.
The recitals contained herein and in the Securities (except in
the certificate of authentication of the Trustee or the Authenticating
Agent) shall be taken as the statements of the Company, and the
Trustee and the Authenticating Agent assume no responsibility for the
correctness of the same. The Trustee and the Authenticating Agent
make no representations as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee and the Authenticating
Agent shall not be accountable for the use or application by the
Company of any Securities or the proceeds of any Securities
authenticated and delivered by the Trustee or the Authenticating Agent
in conformity with the provisions of this Indenture.
SECTION 6.04 Trustee, Authenticating Agent, Paying Agents,
Transfer Agents or Registrar May Own Securities.
The Trustee or any Authenticating Agent or any paying agent or
any transfer agent or any Security registrar, in its individual or any
other capacity, may become the owner or pledgee of Securities with the
same rights it would have if it were not Trustee, Authenticating
Agent, paying agent, transfer agent or Security registrar.
SECTION 6.05 Moneys to be Held in Trust.
Subject to the provisions of Section 11.04, all moneys received
by the Trustee or any paying agent shall, until used or applied as
herein provided, be held in trust for the purpose for which they were
received, but need not be segregated from other funds except to the
extent required by law. The Trustee and any paying agent shall be
under no liability for interest on any money received by it hereunder
except as otherwise agreed in writing with the Company. So long as no
Event of Default shall have occurred and be continuing, all interest
allowed on any such moneys shall be paid from time to time upon the
written order of the Company, signed by an Officer thereof.
SECTION 6.06 Compensation and Expenses of Trustee.
The Company, as borrower under this Indenture, covenants and
agrees to pay to the Trustee from time to time, and the Trustee shall
be entitled to, such compensation as shall be agreed to in writing
between the Company and the Trustee (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an
express trust), and the Company will pay or reimburse the Trustee upon
its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any of the
provisions of this Indenture (including the reasonable compensation
and the expenses and disbursements of its counsel and of all Persons
not regularly in its employ) except any such expense, disbursement or
advance as may arise from its negligence or bad faith. The Company
also covenants to indemnify each of the Trustee and any predecessor
Trustee (and its officers, agents, directors and employees) for, and
to hold them harmless against, any and all loss, damage, claim,
liability or expense including taxes (other than taxes based on the
income of the Trustee) incurred without negligence or bad faith on the
part of the Trustee and arising out of or in connection with the
acceptance or administration of this trust, including the costs and
expenses of defending itself against any claim of liability in the
premises. The obligations of the Company under this Section 6.06 to
compensate and indemnify the Trustee and to pay or reimburse the
Trustee for expenses, disbursements and advances shall constitute
additional indebtedness hereunder. Such additional indebtedness shall
be secured by a lien prior to that of the Securities upon all property
and funds held or collected by the Trustee as such, except funds held
in trust for the benefit of the holders of particular Securities.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 5.01(d) or
Section 5.01(e), the expenses (including the reasonable charges and
expenses of its counsel) and the compensation for the services are
intended to constitute expenses of administration under any applicable
federal or state bankruptcy, insolvency or other similar law.
The provisions of this Section 6.06 shall survive the resignation
or removal of the Trustee and the defeasance or other termination of
this Indenture.
SECTION 6.07 Officers' Certificate as Evidence.
Except as otherwise provided in Sections 6.01 and 6.02, whenever
in the administration of the provisions of this Indenture the Trustee
shall deem it necessary or desirable that a matter be proved or
established prior to taking or omitting any action hereunder, such
matter (unless other evidence in respect thereof is herein
specifically prescribed) may, in the absence of negligence or bad
faith on the part of the Trustee, be deemed to be conclusively proved
and established by an Officers Certificate delivered to the Trustee,
and such certificate, in the absence of negligence or bad faith on the
part of the Trustee, shall be full warrant to the Trustee for any
action taken or omitted by it under the provisions of this Indenture
upon the faith thereof.
SECTION 6.08 Conflicting Interest of Trustee.
If the Trustee has or shall acquire any conflicting interest
within the meaning of Section 310(b) of the Trust Indenture Act, the
Trustee and the Company shall in all respects comply with the
provisions of Section 310(b) of the Trust Indenture Act.
SECTION 6.09 Eligibility of Trustee.
The Trustee hereunder shall at all times be a corporation
organized and doing business under the laws of the United States of
America or any state or territory thereof or of the District of
Columbia or a corporation or other Person permitted to act as trustee
by the Commission authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least 50
million U.S. dollars ($50,000,000) and subject to supervision or
examination by federal, state, territorial, or District of Columbia
authority. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of
this Section 6.09 the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published.
The Company may not, nor may any Person directly or indirectly
controlling, controlled by, or under common control with the Company,
serve as Trustee.
In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 6.09, the Trustee shall
resign immediately in the manner and with the effect specified in
Section 6.10.
SECTION 6.10 Resignation or Removal of Trustee.
a. The Trustee, or any trustee hereafter appointed, may at
any time resign by giving written notice of such resignation to the
Company and by mailing notice thereof to the holders of the Securities
at their addresses as they shall appear on the Security register.
Upon receiving such notice of resignation, the Company shall promptly
appoint a successor trustee by written instrument, in duplicate, one
copy of which instrument shall be delivered to the resigning Trustee
and one copy to the successor trustee. If no successor trustee shall
have been so appointed and have accepted appointment within 60 days
after the mailing of such notice of resignation to the affected
Securityholders, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor trustee, or
any Securityholder who has been a bona fide holder of a Security for
at least six months may, subject to the provisions of Section 5.09, on
behalf of himself and all others similarly situated, petition any such
court for the appointment of a successor trustee. Such court may
thereupon, after such notice, if any, as it may deem proper and
prescribe, appoint a successor trustee.
b. In case at any time any of the following shall occur --
(1) the Trustee shall fail to comply with the
provisions of Section 6.08 after written request
therefor by the Company or by any Securityholder
who has been a bona fide holder of a Security or
Securities for at least six months;
(2) the Trustee shall cease to be eligible in
accordance with the provisions of Section 6.09
and shall fail to resign after written request
therefor by the Company or by any such
Securityholder; or
(3) the Trustee shall become incapable of acting, or
shall be adjudged a bankrupt or insolvent, or a
receiver of the Trustee or of its property shall
be appointed, or any public officer shall take
charge or control of the Trustee or of its
property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any such case, the Company may remove the Trustee and appoint
a successor trustee by written instrument, in duplicate, one copy of
which instrument shall be delivered to the Trustee so removed and one
copy to the successor trustee, or, subject to the provisions of
Section 5.09, any Securityholder who has been a bona fide holder of a
Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a
successor trustee. Such court may thereupon, after such notice, if
any, as it may deem proper and prescribe, remove the Trustee and
appoint a successor trustee.
c. The holders of a majority in aggregate principal amount
of the Securities at the time outstanding may at any time remove the
Trustee and nominate a successor trustee, which shall be deemed
appointed as successor trustee unless within 10 days after such
nomination the Company objects thereto; provided, however, that if no
successor trustee shall have been so appointed and shall have accepted
appointment within 30 days after such removal, the Trustee so removed
or any Securityholder, upon the terms and conditions and otherwise as
in subsection (a) of this Section 6.10 provided, may petition any
court of competent jurisdiction for an appointment of a successor
trustee.
d. Any resignation or removal of the Trustee and
appointment of a successor trustee pursuant to any of the provisions
of this Section 6.10 shall become effective upon acceptance of
appointment by the successor trustee as provided in Section 6.11.
SECTION 6.11 Acceptance by Successor Trustee.
Any successor trustee appointed as provided in Section 6.10 shall
execute, acknowledge and deliver to the Company and to its predecessor
trustee an instrument accepting such appointment hereunder, and
thereupon the resignation or removal of the retiring trustee shall
become effective and such successor trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers,
duties and obligations of its predecessor hereunder, with like effect
as if originally named as trustee herein; provided, however, that on
the written request of the Company or of the successor trustee, the
trustee ceasing to act shall, upon payment of any amounts then due it
pursuant to the provisions of Section 6.06, execute and deliver an
instrument transferring to such successor trustee all the rights and
powers of the trustee so ceasing to act and shall duly assign,
transfer and deliver to such successor trustee all property and money
held by such retiring trustee thereunder. Upon request of any such
successor trustee, the Company shall execute any and all instruments
in writing for more fully and certainly vesting in and confirming to
such successor trustee all such rights and powers. Any trustee ceasing
to act shall, nevertheless, retain a lien upon all property or funds
held or collected by such trustee to secure any amounts then due it
pursuant to the provisions of Section 6.06.
No successor trustee shall accept appointment as provided in this
Section 6.11 unless at the time of such acceptance such successor
trustee shall be qualified under the provisions of Section 6.08 and
eligible under the provisions of Section 6.09.
Upon acceptance of appointment by a successor trustee as provided
in this Section 6.11, the Company shall mail notice of the succession
of such trustee hereunder to the holders of Securities at their
addresses as they shall appear on the Security register. If the
Company fails to mail such notice within 10 days after the acceptance
of appointment by the successor trustee, the successor trustee shall
cause such notice to be mailed at the expense of the Company.
SECTION 6.12 Successor by Merger, etc.
Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation succeeding to all or
substantially all of the corporate trust business of the Trustee,
shall be the successor of the Trustee hereunder without the execution
or filing of any paper or any further act on the part of any of the
parties hereto.
In case at the time such successor to the Trustee shall succeed
to the trusts created by this Indenture any Securities shall have been
authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor trustee,
and deliver such Securities so authenticated. If at such time any of
the Securities shall not have been authenticated, any successor to the
Trustee may authenticate such Securities either in the name of any
predecessor hereunder or in the name of the successor trustee, and in
all such cases such certificates shall have the full force that the
Securities or this Indenture elsewhere provides that the certificate
of the Trustee shall have; provided, however, that the right to adopt
the certificate of authentication of any predecessor Trustee or
authenticate Securities in the name of any predecessor Trustee shall
apply only to its successor or successors by merger, conversion or
consolidation.
SECTION 6.13 Limitation on Rights of Trustee as a Creditor.
The Trustee shall comply with Section 311(a) of the Trust
Indenture Act, excluding its application to any creditor relationship
described in Section 311(b) of the Trust Indenture Act. A Trustee who
has resigned or been removed shall be subject to Section 311(a) of the
Trust Indenture Act to the extent included therein.
SECTION 6.14 Authenticating Agents.
There may be one or more Authenticating Agents appointed by the
Trustee upon the request of the Company with power to act on its
behalf and subject to its direction in the authentication and delivery
of Securities issued upon exchange or registration of transfer thereof
as fully to all intents and purposes as though any such Authenticating
Agent had been expressly authorized to authenticate and deliver
Securities; provided, that the Trustee shall have no liability to the
Company for any acts or omissions of the Authenticating Agent with
respect to the authentication and delivery of Securities. Any such
Authenticating Agent shall at all times be a corporation organized and
doing business under the laws of the United States or of any state or
territory thereof or of the District of Columbia authorized under such
laws to act as Authenticating Agent, having a combined capital and
surplus of at least $5,000,000 and being subject to supervision or
examination by federal, state, territorial or District of Columbia
authority. If such corporation publishes reports of condition at
least annually pursuant to law or the requirements of such authority,
then for the purposes of this Section 6.14 the combined capital and
surplus of such corporation shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect herein specified
in this Section.
Any corporation into which any Authenticating Agent may be merged
or converted or with which it may be consolidated, or any corporation
resulting from any merger, consolidation or conversion to which any
Authenticating Agent shall be a party, or any corporation succeeding
to the corporate trust business of any Authenticating Agent, shall be
the successor of such Authenticating Agent hereunder, if such
successor corporation is otherwise eligible under this Section 6.14,
without the execution or filing of any paper or any further act on the
part of the parties hereto or such Authenticating Agent.
Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee and to the Company. The Trustee
may at any time terminate the agency of any Authenticating Agent by
giving written notice of termination to such Authenticating Agent and
to the Company. Upon receiving such a notice of resignation or upon
such a termination, or in case at any time any Authenticating Agent
shall cease to be eligible under this Section 6.14, the Trustee may,
and upon the request of the Company shall, promptly appoint a
successor Authenticating Agent eligible under this Section 6.14, shall
give written notice of such appointment to the Company and shall mail
notice of such appointment to all Securityholders as the names and
addresses of such holders appear on the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all rights, powers, duties and
responsibilities of its predecessor hereunder, with like effect as if
originally named as Authenticating Agent herein.
The Company, as borrower, agrees to pay to any Authenticating
Agent from time to time reasonable compensation for its services. Any
Authenticating Agent shall have no responsibility or liability for any
action taken by it as such in accordance with the directions of the
Trustee.
ARTICLE VII
CONCERNING THE SECURITYHOLDERS
SECTION 7.01 Action by Securityholders.
Whenever in this Indenture it is provided that the holders of a
specified percentage in aggregate principal amount of the Securities
may take any action (including the making of any demand or request,
the giving of any notice, consent or waiver or the taking of any other
action) the fact that at the time of taking any such action the
holders of such specified percentage have joined therein may be
evidenced (a) by any instrument or any number of instruments of
similar tenor executed by such Securityholders in person or by agent
or proxy appointed in writing, or (b) by the record of such holders of
Securities voting in favor thereof at any meeting of such
Securityholders duly called and held in accordance with the provisions
of Article Eight, or (c) by a combination of such instrument or
instruments and any such record of such a meeting of such
Securityholders.
If the Company shall solicit from the Securityholders any
request, demand, authorization, direction, notice, consent, waiver or
other action, the Company may, at its option, as evidenced by an
Officers' Certificate, fix in advance a record date for the
determination of Securityholders entitled to give such request,
demand, authorization, direction, notice, consent, waiver or other
action, but the Company shall have no obligation to do so. If such a
record date is fixed, such request, demand, authorization, direction,
notice, consent, waiver or other action may be given before or after
the record date, but only the Securityholders of record at the close
of business on the record date shall be deemed to be Securityholders
for the purposes of determining whether Securityholders of the
requisite proportion of outstanding Securities have authorized or
agreed or consented to such request, demand, authorization, direction,
notice, consent, waiver or other action, and for that purpose the
outstanding Securities shall be computed as of the record date;
provided, however, that no such authorization, agreement or consent by
such Securityholders on the record date shall be deemed effective
unless it shall become effective pursuant to the provisions of this
Indenture not later than six months after the record date.
SECTION 7.02 Proof of Execution by Securityholders.
Subject to the provisions of Section 6.01, 6.02 and 8.05, proof
of the execution of any instrument by a Securityholder or his agent or
proxy shall be sufficient if made in accordance with such reasonable
rules and regulations as may be prescribed by the Trustee or in such
manner as shall be satisfactory to the Trustee. The ownership of
Securities shall be proved by the Security Register or by a
certificate of the Security registrar. The Trustee may require such
additional proof of any matter referred to in this Section as it shall
deem necessary.
The record of any Securityholders meeting shall be proved in the
manner provided in Section 8.06.
SECTION 7.03 Who Are Deemed Absolute Owners
Prior to due presentment for registration of transfer of any
Security, the Company, the Trustee, any Authenticating Agent, any
paying agent, any transfer agent and any Security registrar may deem
the Person in whose name such Security shall be registered upon the
Security Register to be, and may treat him as, the absolute owner of
such Security (whether or not such Security shall be overdue) for the
purpose of receiving payment of or on account of the principal of and
premium, if any, and (subject to Section 2.06) interest on such
Security and for all other purposes; and neither the Company nor the
Trustee nor any Authenticating Agent nor any paying agent nor any
transfer agent nor any Security registrar shall be affected by any
notice to the contrary. All such payments so made to any holder for
the time being or upon his order shall be valid, and, to the extent of
the sum or sums so paid, effectual to satisfy and discharge the
liability for moneys payable upon any such Security.
SECTION 7.04 Securities Owned by Company Deemed Not
Outstanding.
In determining whether the holders of the requisite aggregate
principal amount of Securities have concurred in any direction,
consent or waiver under this Indenture, Securities that are owned by
the Company or any other obligor on the Securities or by any Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company, except Securities held by
First of America Capital Trust, or any other obligor on the Securities
shall be disregarded and deemed not to be outstanding for the purpose
of any such determination; provided, that for the purposes of
determining whether the Trustee shall be protected in relying on any
such direction, consent or waiver, only Securities that a Responsible
Officer of the Trustee actually knows are so owned shall be so
disregarded. Securities so owned that have been pledged in good faith
may be regarded as outstanding for the purposes of this Section 7.04
if the pledgee shall establish to the satisfaction of the Trustee the
pledgee s right to vote such Securities and that the pledgee is not
the Company or any such other obligor or Person directly or indirectly
controlling or controlled by or under direct or indirect common
control with the Company or any such other obligor. In the case of a
dispute as to such right, any decision by the Trustee taken upon the
advice of counsel shall be full protection to the Trustee.
SECTION 7.04 Revocation of Consents; Future Holders Bound.
At any time prior to (but not after) the evidencing to the
Trustee, as provided in Section 7.01, of the taking of any action by
the holders of the percentage in aggregate principal amount of the
Securities in connection with such action, any holder of a Security
(or any Security issued in whole or in part in exchange or
substitution therefor) the serial number of which is shown by the
evidence to be included in the Securities the holders of which have
consented to such action may, by filing written notice with the
Trustee at its principal office and upon proof of holding as provided
in Section 7.02, revoke such action so far as concerns such Security
(or so far as concerns the principal amount represented by any
exchanged or substituted Security). Except as aforesaid any such
action taken by the holder of any Security shall be conclusive and
binding upon such holder and upon all future holders and owners of
such Security, and of any Security issued in exchange or substitution
therefor, irrespective of whether or not any notation in regard
thereto is made upon such Security or any Security issued in exchange
or substitution therefor.
ARTICLE VIII
SECURITYHOLDERS' MEETINGS
SECTION 8.01 Purpose of Meetings.
A meeting of Securityholders may be called at any time and from
time to time pursuant to the provisions of this Article Eight for any
of the following purposes:
a. to give any notice to the Company or to the Trustee, or
to give any directions to the Trustee, or to consent to the waiving of
any Default hereunder and its consequences, or to take any other
action authorized to be taken by Securityholders pursuant to any of
the provisions of Article Five;
b. to remove the Trustee and nominate a successor trustee
pursuant to the provisions of Article Six;
c. to consent to the execution of an indenture or
indentures supplemental hereto pursuant to the provisions of Section
9.02; or
d. to take any other action authorized to be taken by or
on behalf of the holders of any specified aggregate principal amount
of such Securities under any other provision of this Indenture or
under applicable law.
SECTION 8.02 Call of Meetings by Trustee.
The Trustee may at any time call a meeting of Securityholders to
take any action specified in Section 8.01, to be held at such time and
at such place in the Borough of Manhattan, The City of New York, as
the Trustee shall determine. Notice of every meeting of the
Securityholders, setting forth the time and the place of such meeting
and in general terms the action proposed to be taken at such meeting,
shall be mailed to holders of Securities at their addresses as they
shall appear on the Security Register. Such notice shall be mailed
not less than 20 nor more than 180 days prior to the date fixed for
the meeting.
SECTION 8.02 Call of Meetings by Company or Securityholders.
In case at any time the Company, pursuant to a resolution of the
Board of Directors, or the holders of at least 10% in aggregate
principal amount of the Securities then outstanding, shall have
requested the Trustee to call a meeting of Securityholders, by written
request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have mailed the notice
of such meeting within 20 days after receipt of such request, then the
Company or such Securityholders may determine the time and the place
in the Borough of Manhattan, The City of New York, for such meeting
and may call such meeting to take any action authorized in Section
8.01, by mailing notice thereof as provided in Section 8.02.
SECTION 8.04 Qualifications for Voting.
To be entitled to vote at any meeting of Securityholders, a
Person shall be (a) a holder of one or more Securities or (b) a Person
appointed by an instrument in writing as proxy by a holder of one or
more Securities. The only Persons who shall be entitled to be present
or to speak at any meeting of Securityholders shall be the Persons
entitled to vote at such meeting and their counsel and any
representatives of the Trustee and its counsel and any representatives
of the Company and its counsel.
SECTION 8.05 Regulations.
Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable
for any meeting of Securityholders, in regard to proof of the holding
of Securities and of the appointment of proxies, and in regard to the
appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right
to vote, and such other matters concerning the conduct of the meeting
as it deems appropriate.
The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been
called by the Company or by Securityholders as provided in Section
8.03, in which case the Company or the Securityholders calling the
meeting, as the case may be, shall in like manner appoint a temporary
chairman. A permanent chairman and a permanent secretary of the
meeting shall be elected by majority vote of the meeting.
Subject to the provisions of Section 8.04, at any meeting each
holder of Securities or proxy therefor shall be entitled to one vote
for each $1,000 principal amount of Securities held or represented by
him; provided, however, that no vote shall be cast or counted at any
meeting in respect of any Security challenged as not outstanding and
ruled by the chairman of the meeting to be not outstanding. The
chairman of the meeting shall have no right to vote other than by
virtue of Securities held by him or instruments in writing as
aforesaid duly designating him as the person to vote on behalf of
other Securityholders. Any meeting of Securityholders duly called
pursuant to the provisions of Section 8.02 or 8.03 may be adjourned
from time to time by a majority of those present, whether or not
constituting a quorum, and the meeting may be held as so adjourned
without further notice.
SECTION 8.06 Voting.
The vote upon any resolution submitted to any meeting of holders
of Securities shall be by written ballots on which shall be subscribed
the signatures of such holders or of their representatives by proxy
and the serial number or numbers of the Securities held or represented
by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for
or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in triplicate
of all votes cast at the meeting. A record in duplicate of the
proceedings of each meeting of Securityholders shall be prepared by
the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by
ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the
meeting and showing that said notice was mailed as provided in Section
8.02. The record shall show the serial numbers of the Securities
voting in favor of or against any resolution. The record shall be
signed and verified by the affidavits of the permanent chairman and
secretary of the meeting and one of the duplicates shall be delivered
to the Company and the other to the Trustee to be preserved by the
Trustee, the latter to have attached thereto the ballots voted at the
meeting. The holders of the Securities shall vote for all purposes as
a single class.
Any record so signed and verified shall be conclusive evidence of
the matters therein stated.
ARTICLE IX
AMENDMENTS
SECTION 9.01 Without Consent of Securityholders.
The Company and the Trustee may from time to time and at any time
amend this Indenture, without the consent of the Securityholders, for
one or more of the following purposes:
a. to evidence the succession of another Person to the
Company, or successive successions, and the assumption by the
successor Person of the covenants, agreements and obligations of the
Company pursuant to Article Ten hereof;
b. to add to the covenants of the Company such further
covenants, restrictions or conditions for the protection of the
Securityholders as the Board of Directors and the Trustee shall
consider to be for the protection of the Securityholders, and to make
the occurrence, or the occurrence and continuance, of a default in any
of such additional covenants, restrictions or conditions an Event of
Default permitting the enforcement of all or any of the remedies
provided in this Indenture as herein set forth; provided, however,
that in respect of any such additional covenant, restriction or
condition such amendment may provide for a particular period of grace
after default (which period may be shorter or longer than that allowed
in the case of other defaults) or may provide for an immediate
enforcement upon such default or may limit the remedies available to
the Trustee upon such default;
c. to provide for the issuance under this Indenture of
Securities in coupon form (including Securities registrable as to
principal only) and to provide for exchangeability of such Securities
with the Securities issued hereunder in fully registered form and to
make all appropriate changes for such purpose;
d. to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may
be defective or inconsistent with any other provision contained herein
or in any supplemental indenture, or to make such other provisions in
regard to matters or questions arising under this Indenture; provided,
that any such action shall not, as evidenced by an Opinion of Counsel
delivered to the Trustee, materially adversely affect the interests of
the holders of the Securities;
e. to evidence and provide for the acceptance of
appointment hereunder by a successor trustee with respect to the
Securities;
f. to make provision for transfer procedures,
certification, book-entry provisions, the form of restricted
securities legends, if any, to be placed on Securities, and all other
matters required pursuant to Section 2.07 or otherwise necessary,
desirable or appropriate in connection with the issuance of Securities
to holders of Capital Securities in the event of a distribution of
Securities by First of America Capital Trust following a Dissolution
Event;
g. to qualify or maintain qualification of this Indenture
under the Trust Indenture Act; or
h. to make any change that does not adversely affect the
rights of any Securityholder in any material respect.
The Trustee is hereby authorized to join with the Company in the
execution of any supplemental indenture to effect such amendment, to
make any further appropriate agreements and stipulations which may be
therein contained and to accept the conveyance, transfer and
assignment of any property thereunder, but the Trustee shall not be
obligated to, but may in its discretion, enter into any such
supplemental indenture which affects the Trustee's own rights, duties
or immunities under this Indenture or otherwise.
Any amendment to this Indenture authorized by the provisions of
this Section 9.01 may be executed by the Company and the Trustee
without the consent of the holders of any of the Securities at the
time outstanding, notwithstanding any of the provisions of Section
9.02.
SECTION 9.02 With Consent of Securityholders.
With the consent (evidenced as provided in Section 7.01) of the
holders of a majority in aggregate principal amount of the Securities
at the time outstanding, the Company, when authorized by a Board
Resolution, and the Trustee may from time to time and at any time
amend this Indenture for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this
Indenture or of modifying in any manner the rights of the holders of
the Securities; provided, however, that no such amendment shall
without the consent of the holders of each Security then outstanding
and affected thereby (i) change the Maturity Date of any Security, or
reduce the rate or extend the time of payment of interest thereon
(except as contemplated by Article Sixteen), or reduce the principal
amount thereof, or change any of the redemption provisions applicable
thereto, or make the principal thereof or any interest or premium
thereon payable in any coin or currency other than that provided in
the Securities, or impair or affect the right of any Securityholder to
institute suit for payment thereof, or (ii) reduce the aforesaid
percentage of Securities the holders of which are required to consent
to any such amendment to this Indenture; provided, however, that if
the Securities are held by First of America Capital Trust, such
amendment shall not be effective until the holders of a majority in
liquidation amount of Trust Securities shall have consented to such
amendment; provided, further, that if the consent of the holder of
each outstanding Security is required, such amendment shall not be
effective until each holder of the Trust Securities shall have
consented to such amendment.
Upon the request of the Company accompanied by a Board Resolution
authorizing the execution of any supplemental indenture affecting such
amendment, and upon the filing with the Trustee of evidence of the
consent of Securityholders as aforesaid, the Trustee shall join with
the Company in the execution of such supplemental indenture, unless
such supplemental indenture affects the Trustee s own rights, duties
or immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion, but shall not be obligated to, enter
into such supplemental indenture.
Promptly after the execution by the Company and the Trustee of
any supplemental indenture pursuant to the provisions of this Section,
the Trustee shall transmit by mail, first class postage prepaid, a
notice, prepared by the Company, setting forth in general terms the
substance of such supplemental indenture, to the Securityholders as
their names and addresses appear upon the Security Register. Any
failure of the Trustee to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any
such supplemental indenture.
It shall not be necessary for the consent of the Securityholders
under this Section 9.02 to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof.
SECTION 9.03 Compliance with Trust Indenture Act; Effect of
Supplemental Indentures.
Any supplemental indenture executed pursuant to the provisions of
this Article Nine shall comply with the Trust Indenture Act. Upon the
execution of any supplemental indenture pursuant to the provisions of
this Article Nine, this Indenture shall be and be deemed to be
modified and amended in accordance therewith and the respective
rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Company and the holders of
Securities shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and amendments
and all the terms and conditions of any such supplemental indenture
shall be and be deemed to be part of the terms and conditions of this
Indenture for any and all purposes.
SECTION 9.04 Notation on Securities.
Securities authenticated and delivered after the execution of any
supplemental indenture affecting such series pursuant to the
provisions of this Article Nine may bear a notation in form approved
by the Trustee as to any matter provided for in such supplemental
indenture. If the Company or the Trustee shall so determine, new
Securities so modified as to conform, in the opinion of the Trustee
and the Board of Directors, to any modification of this Indenture
contained in any such supplemental indenture may be prepared and
executed by the Company, authenticated by the Trustee or the
Authenticating Agent and delivered in exchange for the Securities then
outstanding.
SECTION 9.05 Evidence of Compliance of Supplemental Indenture
to be Furnished Trustee.
The Trustee, subject to the provisions of Sections 6.01 and 6.02,
may receive an Officers Certificate and an Opinion of Counsel as
conclusive evidence that any supplemental indenture executed pursuant
to this Article is authorized or permitted by, and conforms to, the
terms of this Article and that it is proper for the Trustee under the
provisions of this Article to join in the execution thereof.
ARTICLE X
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
SECTION 10.01 Company May Consolidate, etc., on Certain Terms.
Nothing contained in this Indenture or in any of the Securities
shall prevent any consolidation or merger of the Company with or into
any other Person or Persons (whether or not affiliated with the
Company, as the case may be), or successive consolidations or mergers
in which the Company, as the case may be, or its successor or
successors shall be a party or parties, or shall prevent any sale,
conveyance, transfer or lease of the property and assets as an
entirety or substantially as an entirety to any Person if the
securities issued in exchange for the Securities in such transaction
shall in all respects have the same legal rank and benefit under this
Indenture as the Securities theretofore or thereafter issued in
accordance with the terms of this Indenture as though all of such
Securities had been issued at the date of the execution hereof;
provided, however, that the Company shall not consolidate with or
merge into any other Person or convey, transfer or lease its
properties and assets as an entirety or substantially as an entirety
to any Person, and no Person shall consolidate with or merge into the
Company or sell, convey, transfer or lease its properties and assets
as an entirety or substantially as an entirety to the Company, unless
(i) in case the Company consolidates with or merges into another
Person or conveys or transfers its properties and assets substantially
as an entirety to any Person, the successor Person is organized under
the laws of the United States or any State or the District of
Columbia, and such successor Person expressly assumes the Company s
obligations on the Securities and (ii) immediately after giving effect
thereto, no Default or Event of Default shall have occurred and be
continuing.
SECTION 10.02 Successor Corporation to be Substituted for
Company.
In case of any such consolidation, merger, conveyance or transfer
and upon the assumption by the successor Person, by supplemental
indenture, executed and delivered to the Trustee and satisfactory in
form to the Trustee, of the due and punctual payment of the principal
of and premium, if any, and interest on all of the Securities and the
due and punctual performance and observance of all of the covenants
and conditions of this Indenture to be performed or observed by the
Company, such successor Person shall succeed to and be substituted for
the Company, with the same effect as if it had been named herein as
the party of the first part, and the Company thereupon shall be
relieved of any further liability or obligation hereunder or upon the
Securities. Such successor Person thereupon may cause to be signed,
and may issue either in its own name or in the name of the Company,
any or all of the Securities issuable hereunder which theretofore
shall not have been signed by the Company and delivered to the Trustee
or the Authenticating Agent; and, upon the order of such successor
Person instead of the Company and subject to all the terms, conditions
and limitations in this Indenture prescribed, the Trustee or the
Authenticating Agent shall authenticate and deliver any Securities
which previously shall have been signed and delivered by the officers
of the Company to the Trustee or the Authenticating Agent for
authentication, and any Securities which such successor Person
thereafter shall cause to be signed and delivered to the Trustee or
the Authenticating Agent for that purpose. All of the Securities so
issued shall in all respects have the same legal rank and benefit
under this Indenture as the Securities theretofore or thereafter
issued in accordance with the terms of this Indenture as though all of
such Securities had been issued at the date of the execution hereof.
SECTION 10.03 Opinion of Counsel to be Given Trustee.
The Trustee, subject to the provisions of Sections 6.01 and 6.02,
may receive an Opinion of Counsel as conclusive evidence that any
consolidation, merger, sale, conveyance, transfer or lease, and any
assumption, permitted or required by the terms of this Article Ten
complies with the provisions of this Article Ten.
ARTICLE XI
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 11.01 Discharge of Indenture.
When (a) the Company shall deliver to the Trustee for
cancellation all Securities theretofore authenticated (other than any
Securities which shall have been destroyed, lost or stolen and which
shall have been replaced or paid (as provided in Section 2.08)) and
not theretofore canceled, or (b) all the Securities not theretofore
canceled or delivered to the Trustee for cancellation shall have
become due and payable, or are by their terms to become due and
payable within one year or are to be called for redemption within one
year under arrangements satisfactory to the Trustee for the giving of
notice of redemption, and the Company shall deposit with the Trustee,
in trust, funds sufficient to pay on the Maturity Date or upon
redemption all of the Securities (other than any Securities which
shall have been destroyed, lost or stolen and which shall have been
replaced or paid (as provided in Section 2.08)) not theretofore
canceled or delivered to the Trustee for cancellation, including
principal and premium, if any, and interest due or to become due to
the Maturity Date or redemption date, as the case may be, but
excluding, however, the amount of any moneys for the payment of
principal of or premium, if any, or interest on the Securities (1)
theretofore repaid to the Company in accordance with the provisions of
Section 11.04, or (2) paid to any State or to the District of Columbia
pursuant to its unclaimed property or similar laws, and if in either
case the Company shall also pay or cause to be paid all other sums
payable hereunder by the Company, then this Indenture shall cease to
be of further effect except for the provisions of Sections 2.02, 2.07,
2.08, 3.01, 3.02, 3.04, 6.06, 6.10 and 11.04 hereof, which shall
survive until such Securities shall mature and be paid. Thereafter,
Sections 6.06, 6.10 and 11.04 shall survive, and the Trustee, on
demand of the Company accompanied by any Officers Certificate and an
Opinion of Counsel to the effect that all conditions to the
satisfaction and discharge of this Indenture pursuant to this Section
11.01 have been satisfied, and at the cost and expense of the Company,
shall execute proper instruments acknowledging satisfaction of and
discharging this Indenture, the Company, however, hereby agreeing to
reimburse the Trustee for any costs or expenses thereafter reasonably
and properly incurred by the Trustee in connection with this Indenture
or the Securities.
SECTION 11.02 Deposited Moneys and U.S. Government Obligations
to be Held in Trust by Trustee.
Subject to the provisions of Section 11.04, all moneys and U.S.
Government Obligations deposited with the Trustee pursuant to Sections
11.01 or 11.05 shall be held in trust and applied by it to the
payment, either directly or through any paying agent (including the
Company if acting as its own paying agent), to the holders of the
particular Securities for the payment of which such moneys or U.S.
Government Obligations have been deposited with the Trustee, of all
sums due and to become due thereon for principal, premium, if any, and
interest.
The Company shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 11.05 or the principal and
interest received in respect thereof other than any such tax, fee or
other charge which by law is for the account of the holders of
outstanding Securities.
SECTION 11.03 Paying Agent to Repay Moneys Held.
Upon the satisfaction and discharge of this Indenture all moneys
then held by any paying agent of the Securities (other than the
Trustee) shall, upon written demand of the Company, be repaid to it or
paid to the Trustee, and thereupon such paying agent shall be released
from all further liability with respect to such moneys.
SECTION 11.04 Return of Unclaimed Moneys.
Any moneys deposited with or paid to the Trustee or any paying
agent for payment of the principal of or premium, if any, or interest
on Securities and not applied but remaining unclaimed by the holders
of Securities for two years after the date upon which the principal of
or premium, if any, or interest on such Securities, as the case may
be, shall have become due and payable, shall be repaid to the Company
by the Trustee or such paying agent on written demand; and the holder
of any of the Securities shall thereafter look only to the Company for
any payment which such holder may be entitled to collect and all
liability of the Trustee or such paying agent with respect to such
moneys shall thereupon cease.
SECTION 11.05 Defeasance Upon Deposit of Moneys or U.S.
Government Obligations.
The Company shall be deemed to have been Discharged (as defined
below) from its obligations with respect to the Securities on the 91st
day after the applicable conditions set forth below have been
satisfied:
a. the Company shall have deposited or caused to be
deposited irrevocably with the Trustee or the Defeasance Agent (as
defined below) as trust funds in trust, specifically pledged as
security for, and dedicated solely to, the benefit of the holders of
the Securities (i) money in an amount, or (ii) U.S. Government
Obligations which through the payment of interest and principal in
respect thereof in accordance with their terms will provide, not later
than one day before the due date of any payment, money in an amount,
or (iii) a combination of (i) and (ii), sufficient, in the opinion
(with respect to (ii) and (iii)) of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee and the Defeasance Agent, if any, to
pay and discharge each installment of principal of and interest and
premium, if any, on the outstanding Securities on the dates such
installments of principal, interest or premium are due;
b. if the Securities are then listed on any national
securities exchange, the Company shall have delivered to the Trustee
and the Defeasance Agent, if any, an Opinion of Counsel to the effect
that the exercise of the option under this Section 11.05 would not
cause such Securities to be delisted from such exchange;
c. no Default or Event of Default with respect to the
Securities shall have occurred and be continuing on the date of such
deposit;
d. the Company shall have delivered to the Trustee and the
Defeasance Agent, if any, an Opinion of Counsel to the effect that
holders of the Securities will not recognize income, gain or loss for
United States federal income tax purposes as a result of the exercise
of the option under this Section 11.05 and will be subject to United
States federal income tax on the same amount and in the same manner
and at the same times as would have been the case if such option had
not been exercised, and such opinion shall be accompanied by a private
letter ruling to that effect received from the United States Internal
Revenue Service or a revenue ruling pertaining to a comparable form of
transaction to that effect published by the United States Internal
Revenue Service; and
e. the Company has delivered to the Trustee and the
Defeasance Agent, if any, an Officers Certificate and an Opinion of
Counsel each stating that all conditions precedent herein provided for
relating to the satisfaction and discharge of this Indenture have been
complied with.
Discharged means that the Company shall be deemed to have
paid and discharged the entire indebtedness represented by, and
obligations under, the Securities and to have satisfied all the
obligations under this Indenture relating to the Securities (and the
Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), except (i) the rights of holders
of Securities to receive, from the trust fund described in clause (a)
above, payment of the principal of and the premium, if any, and
interest on the Securities when such payments are due; (ii) the
Company's obligations with respect to the Securities under Sections
2.07, 2.08, 5.02 and 11.04; and (iii) the rights, powers, trusts,
duties and immunities of the Trustee hereunder.
Defeasance Agent means another financial institution which
is eligible to act as Trustee hereunder and which assumes all of the
obligations of the Trustee necessary to enable the Trustee to act
hereunder. In the event such a Defeasance Agent is appointed pursuant
to this Section, the following conditions shall apply:
(1) The Trustee shall have approval rights over the
document appointing such Defeasance Agent and the document
setting forth such Defeasance Agent s rights and
responsibilities;
(2) The Defeasance Agent shall provide verification
to the Trustee acknowledging receipt of sufficient money
and/or U.S. Government Obligations to meet the applicable
conditions set forth in this Section 11.05.
SECTION 11.05 Reinstatement.
If the Trustee or any Defeasance Agent is unable to apply any
money in accordance with Section 11.05 by reason of any legal
proceeding or by reason of any order or judgement of any court or
governmental authority enjoining, restraining or otherwise prohibiting
such application, the Company's obligations under this Indenture and
the Securities shall be revived and reinstated as though no deposit
had occurred pursuant to 11.05 until such time as the Trustee or any
Defeasance Agent is permitted to apply all such money in accordance
with Section 11.05.
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01 Indenture and Securities Solely Corporate
Obligations.
No recourse for the payment of the principal of or premium, if
any, or interest on any Security, or for any claim based thereon or
otherwise in respect thereof, and no recourse under or upon any
obligation, covenant or agreement of the Company in this Indenture, or
in any Security, or because of the creation of any indebtedness
represented thereby, shall be had against any incorporator,
stockholder, officer or director, as such, past, present or future, of
the Company or of any successor Person to the Company, either directly
or through the Company, under any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or otherwise;
it being expressly understood that all such liability is hereby
expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issue of
the Securities.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01 Successors.
All the covenants, stipulations, promises and agreements in this
Indenture contained by the Company shall bind its successors and
assigns whether so expressed or not.
SECTION 13.02 Official Acts by Successor Corporation.
Any act or proceeding by any provision of this Indenture
authorized or required to be done or performed by any board, committee
or officer of the Company shall and may be done and performed with
like force and effect by the like board, committee or officer of any
corporation that shall at the time be the lawful sole successor of the
Company.
SECTION 13.03 Surrender of Company Powers.
The Company by instrument in writing executed by authority of
two-thirds (2/3) of its Board of Directors and delivered to the
Trustee may surrender any of the powers reserved to the Company, and
thereupon such power so surrendered shall terminate both as to the
Company, as the case may be, and as to any successor Person.
SECTION 13.04 Address for Notices, etc.
Any notice or demand that by any provision of this Indenture is
required or permitted to be given or served by the Trustee or by the
holders of Securities on the Company may be given or served by being
deposited postage prepaid by registered or certified mail in a post
office letter box addressed (until another address is filed by the
Company with the Trustee for the purpose) to the Company, 211 South
Rose Street, Kalamazoo, Michigan 49007, Attention: Samuel G. Stone,
Senior Vice President and Treasurer. Any notice, direction, request
or demand by any Securityholder to or upon the Trustee shall be deemed
to have been sufficiently given or made, for all purposes, if given or
made in writing at the office of the Trustee, addressed to the
Trustee, 101 Barclay Street, 21 West, New York, New York 10286,
Attention: Corporate Trust Trustee Administration.
SECTION 13.05 Governing Law.
THIS INDENTURE AND EACH SECURITY SHALL BE DEEMED TO BE A CONTRACT
MADE UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES.
SECTION 13.06 Evidence of Compliance with Conditions Precedent.
Upon any application or demand by the Company to the Trustee to
take any action under any of the provisions of this Indenture, the
Company shall furnish to the Trustee an Officers Certificate stating
that in the opinion of the signers all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have
been complied with and an Opinion of Counsel stating that, in the
opinion of such counsel, all such conditions precedent have been
complied with.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition
or covenant provided for in this Indenture shall include (a) a
statement that the person making such certificate or opinion has read
such covenant or condition; (b) a brief statement as to the nature and
scope of the examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based; (c) a
statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition
has been complied with; and (d) a statement as to whether or not, in
the opinion of such person, such condition or covenant has been
complied with.
SECTION 13.07 Payments on Business Days Only.
In any case where the payment of principal of and/or premium, if
any, and/or interest on the Securities is due on a date that is not a
Business Day, then the payment of principal, premium and interest
payable on such date will be made on the next succeeding Business Day
(and without any interest or other payment in respect of any such
delay), with the same force and effect as if made on such date.
SECTION 13.08 Trust Indenture Act to Control.
If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with another provision included in this
Indenture which is required to be included in this Indenture by any of
Sections 310 to 317, inclusive, of the Trust Indenture Act, such
required provision shall control.
SECTION 13.09 Table of Contents, Headings, etc.
The table of contents and the titles and headings of the articles
and sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof, and shall in
no way modify or restrict any of the terms or provisions hereof.
SECTION 13.10 Execution in Counterparts.
This Indenture may be executed in any number of counterparts,
each of which shall be an original, but such counterparts shall
together constitute but one and the same instrument.
SECTION 13.11 Separability
In case any one or more of the provisions contained in this
Indenture or in the Securities shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions
of this Indenture or of the Securities, but this Indenture and the
Securities shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein or therein.
SECTION 13.12 Assignment.
The Company will have the right at all times to assign any of its
respective rights or obligations under this Indenture to a direct or
indirect wholly owned Subsidiary of the Company, provided that, in the
event of any such assignment, the Company, as the case may be, will
remain liable for all such obligations. Subject to the foregoing, the
Indenture is binding upon and inures to the benefit of the parties
thereto and their respective successors and assigns. This Indenture
may not otherwise be assigned by the parties hereto.
SECTION 13.13 Acknowledgment of Rights.
The Company acknowledges that, with respect to any Securities
held by First of America Capital Trust or a trustee of such trust, if
the Property Trustee of such trust fails to enforce its rights under
this Indenture as the holder of the Securities held as the assets of
First of America Capital Trust any holder of Capital Securities may
institute legal proceedings directly against the Company in the form
of a Direct Action in order to enforce such Property Trustee s rights
under this Indenture without first instituting any legal proceedings
against such Property Trustee or any other Person. Notwithstanding
the foregoing, if an Event of Default has occurred and is continuing
and such event is attributable to the failure of the Company to pay
principal of or premium, if any, or interest on the Securities when
due, the Company acknowledges that a holder of Capital Securities may
institute a Direct Action directly against the Company for enforcement
of payment to such holder of the principal of or premium, if any, or
interest on the Securities having a principal amount equal to the
aggregate liquidation amount of the Capital Securities of such holder
on or after the respective due date specified in the Securities.
ARTICLE XIV
REDEMPTION OF SECURITIES; NO SINKING FUND
SECTION 14.01 Special Event Redemption.
Subject to the provisions of this Article Fourteen, if a Special
Event has occurred and is continuing prior to the Initial Optional
Redemption Date, then the Company shall have the right, upon (i) not
less than 45 days written notice to the Trustee and (ii) not less than
30 days nor more than 60 days written notice to the Securityholders,
to redeem the Securities, in whole (but not in part), within 90 days
following the occurrence of such Special Event at the Special Event
Redemption Price. Following a Special Event, the Company shall take
such action as is necessary to promptly determine the Special Event
Redemption Price, including without limitation the appointment by the
Company of a Quotation Agent. The Special Event Redemption Price
shall be paid by the Trustee prior to 12:00 noon, New York City time,
on the date of such redemption or such earlier time as the Company
determines, provided that the Company shall deposit with the Trustee
an amount sufficient to pay the Special Event Redemption Price by
10:00 a.m., New York City time, on the date such Special Event
Redemption Price is to be paid.
SECTION 14.02 Optional Redemption by Company.
a. Subject to the provisions of this Article Fourteen, the
Company shall have the right to redeem the Securities, in whole or in
part, from time to time, on or after the Initial Optional Redemption
Date, at a redemption price set forth below (expressed as a percentage
of the outstanding principal amount to be redeemed) plus, in each
case, accrued and unpaid interest thereon (including Additional
Interest and Compounded Interest, if any) to the applicable date of
redemption (the Optional Redemption Price) if redeemed during the
12-month period beginning January 31 of the year indicated below.
Year Percentage
2007 104.060%
2008 103.654%
2009 103.248%
2010 102.842%
2011 102.436%
2012 102.030%
2013 101.624%
2014 101.218%
2015 100.812%
2016 100.406%
2017 and thereafter 100.000%
If the Securities are only partially redeemed pursuant to
this Section 14.02, the Securities will be redeemed pro rata or by lot
or by any other method as the Trustee shall determine; provided, that
if at the time of redemption the Securities are registered as a Global
Security, the Depositary shall determine, in accordance with its
procedures, the principal amount of such Securities held by each
participant (and, indirectly, beneficial owner) of a Security to be
redeemed. The Optional Redemption Price shall be paid by the Trustee
prior to 12:00 noon, New York City time, on the date of such
redemption or at such earlier time as the Company determines, provided
that the Company shall deposit with the Trustee an amount sufficient
to pay the Optional Redemption Price by 10:00 a.m., New York City
time, on the date such Optional Redemption Price is to be paid.
b. Notwithstanding the first sentence of Section 14.02(a),
upon the entry of an order for dissolution of the First of America
Capital Trust by a court of competent jurisdiction, the Securities
thereafter will be subject to optional redemption, in whole only, but
not in part, on or after the Initial Optional Redemption Date, at the
applicable optional redemption price set forth in Section 14.02(a) and
otherwise in accordance with this Article Fourteen.
c. Any redemption of Securities pursuant to Section 14.01
or Section 14.02 shall be subject to the Company obtaining the prior
approval of the Federal Reserve Board if such approval is then
required under applicable capital guidelines or policies of the
Federal Reserve Board.
SECTION 14.03 No Sinking Fund.
The Securities are not entitled to the benefit of any sinking
fund.
SECTION 14.04 Notice of Redemption; Selection of Securities.
In case the Company shall desire to exercise the right to redeem
all, or, as the case may be, any part of the Securities in accordance
with their terms, it shall fix a date for redemption and shall mail a
notice of such redemption at least 30 and not more than 60 days prior
to the date fixed for redemption to the holders of Securities so to be
redeemed as a whole or in part at their last addresses as the same
appear on the Security Register. Such mailing shall be by first class
mail. The notice if mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the
holder receives such notice. In any case, failure to give such notice
by mail or any defect in the notice to the holder of any Security
designated for redemption as a whole or in part shall not affect the
validity of the proceedings for the redemption of any other Security.
Each such notice of redemption shall specify the CUSIP number, if
any, of the Securities to be redeemed, the date fixed for redemption,
the redemption price at which the Securities are to be redeemed (or
the method by which such redemption price is to be calculated), the
place or places of payment that payment will be made upon presentation
and surrender of the Securities, that interest accrued to the date
fixed for redemption will be paid as specified in said notice, and
that on and after said date interest thereon or on the portions
thereof to be redeemed will cease to accrue. If less than all the
Securities are to be redeemed the notice of redemption shall specify
the numbers of the Securities to be redeemed. In case any Security is
to be redeemed in part only, the notice of redemption shall state the
portion of the principal amount thereof to be redeemed and shall state
that on and after the date fixed for redemption, upon surrender of
such Security, a new Security or Securities in principal amount equal
to the unredeemed portion thereof will be issued.
Prior to 10:00 a.m., New York City time, on the redemption date
specified in the notice of redemption given as provided in this
Section, the Company will deposit with the Trustee or with one or more
paying agents an amount of money sufficient to redeem on the
redemption date all the Securities so called for redemption at the
appropriate Redemption Price, together with accrued interest to the
date fixed for redemption.
The Company will give the Trustee notice not less than 45 days
prior to the redemption date as to the aggregate principal amount of
Securities to be redeemed and the Trustee shall select, in such manner
as in its sole discretion it shall deem appropriate and fair, the
Securities or portions thereof (in integral multiples of $1,000,
except as otherwise set forth in the applicable form of Security) to
be redeemed.
SECTION 14.05 Payment of Securities Called for Redemption.
If notice of redemption has been given as provided in Section
14.04, the Securities or portions of Securities with respect to which
such notice has been given shall become due and payable on the date
and at the place or places stated in such notice at the applicable
Redemption Price, together with interest accrued to the date fixed for
redemption (subject to the rights of holders of Securities on the
close of business on a regular record date in respect of an Interest
Payment Date occurring on or prior to the redemption date), and on and
after said date (unless the Company shall default in the payment of
such Securities at the Redemption Price, together with interest
accrued to said date) interest on the Securities or portions of
Securities so called for redemption shall cease to accrue. On
presentation and surrender of such Securities at a place of payment
specified in said notice, the said Securities or the specified
portions thereof shall be paid and redeemed by the Company at the
applicable Redemption Price, together with interest accrued thereon to
the date fixed for redemption (subject to the rights of holders of
Securities on the close of business on a regular record date in
respect of an Interest Payment Date occurring on or prior to the
redemption date).
Upon presentation of any Security redeemed in part only, the
Company shall execute and the Trustee shall authenticate and make
available for delivery to the holder thereof, at the expense of the
Company, a new Security or Securities of authorized denominations, in
principal amount equal to the unredeemed portion of the Security so
presented.
ARTICLE XV
SUBORDINATION OF SECURITIES
SECTION 15.01 Agreement to Subordinate.
The Company covenants and agrees, and each holder of Securities
issued hereunder likewise covenants and agrees, that the Securities
shall be issued subject to the provisions of this Article Fifteen, and
each holder of a Security, whether upon original issue or upon
transfer or assignment thereof, accepts and agrees to be bound by such
provisions.
The payment by the Company of the principal of and premium, if
any, and interest on all Securities issued hereunder shall, to the
extent and in the manner hereinafter set forth, be subordinated and
junior in right of payment to the prior payment in full of all Senior
Indebtedness, whether outstanding at the date of this Indenture or
thereafter incurred.
No provision of this Article Fifteen shall prevent the occurrence
of any Default or Event of Default hereunder.
SECTION 15.02 Default on Senior Indebtedness.
In the event and during the continuation of any default by the
Company in the payment of principal, premium, interest or any other
payment due on any Senior Indebtedness, or in the event that the
maturity of any Senior Indebtedness has been accelerated because of a
default, then, in either case, no payment shall be made by the Company
with respect to the principal (including redemption payments) of or
premium, if any, or interest on the Securities.
In the event of the acceleration of the maturity of the
Securities, then no payment shall be made by the Company with respect
to the principal (including redemption payments) of or premium, if
any, or interest on the Securities until the holders of all Senior
Indebtedness outstanding at the time of such acceleration shall
receive payment in full of all Senior Indebtedness (including any
amounts due upon acceleration).
In the event that, notwithstanding the foregoing, any payment
shall be received by the Trustee when such payment is prohibited by
the preceding paragraphs of this Section 15.02, such payment shall be
held in trust for the benefit of, and shall be paid over or delivered
to, the holders of Senior Indebtedness or their respective
representatives, or to the trustee or trustees under any indenture
pursuant to which any of such Senior Indebtedness may have been
issued, as their respective interests may appear, but only to the
extent that the holders of the Senior Indebtedness (or their
representative or representatives or a trustee) notify the Trustee in
writing, within 90 days of such payment, of the amounts then due and
owing on such Senior Indebtedness and only the amounts specified in
such notice to the Trustee shall be paid to the holders of such Senior
Indebtedness.
SECTION 15.03 Liquidation; Dissolution; Bankruptcy.
Upon any payment by the Company or distribution of assets of the
Company of any kind or character, whether in cash, property or
securities, to creditors upon any dissolution or winding-up or
liquidation or reorganization of the Company, whether voluntary or
involuntary or in bankruptcy, insolvency, receivership or other
proceedings, all Senior Indebtedness of the Company shall first be
paid in full, or payment thereof provided for in money in accordance
with its terms, before any payment is made by the Company on account
of the principal (and premium, if any) or interest on the Securities;
and upon any such dissolution or winding-up or liquidation or
reorganization, any payment by the Company, or distribution of assets
of the Company of any kind or character, whether in cash, property or
securities, to which the Securityholders or the Trustee would be
entitled to receive from the Company, except for the provisions of
this Article Fifteen, shall be paid by the Company or by any receiver,
trustee in bankruptcy, liquidating trustee, agent or other Person
making such payment or distribution, or by the Securityholders or by
the Trustee under this Indenture if received by them or it, directly
to the holders of Senior Indebtedness of the Company (pro rata to such
holders on the basis of the respective amounts of Senior Indebtedness
held by such holders, as calculated by the Company) or their
representative or representatives, or to the trustee or trustees under
any indenture pursuant to which any instruments evidencing such Senior
Indebtedness may have been issued, as their respective interests may
appear, to the extent necessary to pay all such Senior Indebtedness in
full, in money or money s worth, after giving effect to any concurrent
payment or distribution to or for the holders of such Senior
Indebtedness, before any payment or distribution is made to the
Securityholders or to the Trustee.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character,
whether in cash, property or securities, prohibited by the foregoing,
shall be received by the Trustee before all Senior Indebtedness is
paid in full, or provision is made for such payment in money in
accordance with its terms, such payment or distribution shall be held
in trust for the benefit of and shall be paid over or delivered to the
holders of such Senior Indebtedness or their representative or
representatives, or to the trustee or trustees under any indenture
pursuant to which any instruments evidencing such Senior Indebtedness
may have been issued, and their respective interests may appear, as
calculated by the Company, for application to the payment of all
Senior Indebtedness remaining unpaid to the extent necessary to pay
all Senior Indebtedness in full in money in accordance with its terms,
after giving effect to any concurrent payment or distribution to or
for the benefit of the holders of such Senior Indebtedness.
For purposes of this Article Fifteen, the words cash, property or
securities shall not be deemed to include shares of stock of the
Company as reorganized or readjusted, or securities of the Company or
any other corporation provided for by a plan of reorganization or
readjustment, the payment of which is subordinated at least to the
extent provided in this Article Fifteen with respect to the Securities
to the payment of Senior Indebtedness that may at the time be
outstanding, provided that (i) such Senior Indebtedness is assumed by
the new corporation, if any, resulting from any such reorganization or
readjustment, and (ii) the rights of the holders of such Senior
Indebtedness are not, without the consent of such holders, altered by
such reorganization or readjustment. The consolidation of the Company
with, or the merger of the Company into, another Person or the
liquidation or dissolution of the Company following the sale,
conveyance, transfer or lease of its property as an entirety, or
substantially as an entirety, to another Person upon the terms and
conditions provided for in Article Ten of this Indenture shall not be
deemed a dissolution, winding-up, liquidation or reorganization for
the purposes of this Section 15.03 if such other Person shall, as a
part of such consolidation, merger, sale, conveyance, transfer or
lease, comply with the conditions stated in Article Ten of this
Indenture. Nothing in Section 15.02 or in this Section 15.03 shall
apply to claims of, or payments to, the Trustee under or pursuant to
Section 6.06 of this Indenture.
SECTION 15.04 Subrogation.
Subject to the payment in full of all Senior Indebtedness, the
rights of the Securityholders shall be subrogated to the rights of the
holders of such Senior Indebtedness to receive payments or
distributions of cash, property or securities of the Company, as the
case may be, applicable to such Senior Indebtedness until the
principal of (and premium, if any) and interest on the Securities
shall be paid in full; and, for the purposes of such subrogation, no
payments or distributions to the holders of such Senior Indebtedness
of any cash, property or securities to which the Securityholders or
the Trustee would be entitled except for the provisions of this
Article Fifteen, and no payment over pursuant to the provisions of
this Article Fifteen to or for the benefit of the holders of such
Senior Indebtedness by Securityholders or the Trustee, shall, as
between the Company, its creditors other than holders of Senior
Indebtedness of the Company, and the holders of the Securities, be
deemed to be a payment by the Company to or on account of such Senior
Indebtedness. It is understood that the provisions of this Article
Fifteen are and are intended solely for the purposes of defining the
relative rights of the holders of the Securities, on the one hand, and
the holders of such Senior Indebtedness on the other hand.
Nothing contained in this Article Fifteen or elsewhere in this
Indenture or in the Securities is intended to or shall impair, as
between the Company, its creditors other than the holders of Senior
Indebtedness of the Company, and the holders of the Securities, the
obligation of the Company, which is absolute and unconditional, to pay
to the holders of the Securities the principal of (and premium, if
any) and interest on the Securities as and when the same shall become
due and payable in accordance with their terms, or is intended to or
shall affect the relative rights of the holders of the Securities and
creditors of the Company, as the case may be, other than the holders
of Senior Indebtedness of the Company, as the case may be, nor shall
anything herein or therein prevent the Trustee or the holder of any
Security from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the
rights, if any, under this Article Fifteen of the holders of such
Senior Indebtedness in respect of cash, property or securities of the
Company, as the case may be, received upon the exercise of any such
remedy.
Upon any payment or distribution of assets of the Company
referred to in this Article Fifteen, the Trustee, subject to the
provisions of Article Six of this Indenture, and the Securityholders
shall be entitled to conclusively rely upon any order or decree made
by any court of competent jurisdiction in which such dissolution,
winding-up, liquidation or reorganization proceedings are pending, or
a certificate of the receiver, trustee in bankruptcy, liquidation
trustee, agent or other Person making such payment or distribution,
delivered to the Trustee or to the Securityholders, for the purposes
of ascertaining the Persons entitled to participate in such
distribution, the holders of Senior Indebtedness and other
indebtedness of the Company, as the case may be, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and
all other facts pertinent thereto or to this Article Fifteen.
SECTION 15.05 Trustee to Effectuate Subordination.
Each Securityholder by such Securityholder's acceptance thereof
authorizes and directs the Trustee on such Securityholder's behalf to
take such action as may be necessary or appropriate to effectuate the
subordination provided in this Article Fifteen and appoints the
Trustee such Securityholder s attorney-in-fact for any and all such
purposes.
SECTION 15.06 Notice by the Company.
The Company shall give prompt written notice to a Responsible
Officer of the Trustee of any fact known to the Company that would
prohibit the making of any payment of monies to or by the Trustee in
respect of the Securities pursuant to the provisions of this Article
Fifteen. Notwithstanding the provisions of this Article Fifteen or
any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts that would
prohibit the making of any payment of monies to or by the Trustee in
respect of the Securities pursuant to the provisions of this Article
Fifteen, unless and until a Responsible Officer of the Trustee shall
have received written notice thereof from the Company or a holder or
holders of Senior Indebtedness or from any trustee therefor; and
before the receipt of any such written notice, the Trustee, subject to
the provisions of Article Six of this Indenture, shall be entitled in
all respects to assume that no such facts exist; provided, however,
that if the Trustee shall not have received the notice provided for in
this Section 15.06 at least two Business Days prior to the date upon
which by the terms hereof any money may become payable for any purpose
(including, without limitation, the payment of the principal of (or
premium, if any) or interest on any Security), then, anything herein
contained to the contrary notwithstanding, the Trustee shall have full
power and authority to receive such money and to apply the same to the
purposes for which they were received, and shall not be affected by
any notice to the contrary that may be received by it within two
Business Days prior to such date.
The Trustee, subject to the provisions of Article Six of this
Indenture, shall be entitled to conclusively rely on the delivery to
it of a written notice by a Person representing himself to be a holder
of Senior Indebtedness of the Company, as the case may be (or a
trustee or representative on behalf of such holder), to establish that
such notice has been given by a holder of such Senior Indebtedness or
a trustee or representative on behalf of any such holder or holders.
In the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person as a
holder of such Senior Indebtedness to participate in any payment or
distribution pursuant to this Article Fifteen, the Trustee may request
such Person to furnish evidence to the reasonable satisfaction of the
Trustee as to the amount of such Senior Indebtedness held by such
Person, the extent to which such Person is entitled to participate in
such payment or distribution and any other facts pertinent to the
rights of such Person under this Article Fifteen, and, if such
evidence is not furnished, the Trustee may defer any payment to such
Person pending judicial determination as to the right of such Person
to receive such payment.
Upon any payment or distribution of assets of the Company
referred to in this Article Fifteen, the Trustee and the
Securityholders shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which such
insolvency, bankruptcy, receivership, liquidation, reorganization,
dissolution, winding up or similar case or proceeding is pending, or a
certificate of the trustee in bankruptcy, liquidating trustee,
custodian, receiver, assignee for the benefit of creditors, agent or
other Person making such payment or distribution, delivered to the
Trustee or to the Securityholders, for the purpose of ascertaining the
Persons entitled to participate in such payment or distribution, the
holders of Senior Indebtedness and other indebtedness of the Company,
the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this
Article Fifteen.
SECTION 15.07 Rights of the Trustee; Holders of Senior
Indebtedness.
The Trustee in its individual capacity shall be entitled to all
the rights set forth in this Article Fifteen in respect of any Senior
Indebtedness at any time held by it, to the same extent as any other
holder of Senior Indebtedness, and nothing in this Indenture shall
deprive the Trustee of any of its rights as such holder.
With respect to the holders of Senior Indebtedness of the
Company, the Trustee undertakes to perform or to observe only such of
its covenants and obligations as are specifically set forth in this
Article Fifteen, and no implied covenants or obligations with respect
to the holders of such Senior Indebtedness shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed to owe
any fiduciary duty to the holders of such Senior Indebtedness and,
subject to the provisions of Article Six of this Indenture, the
Trustee shall not be liable to any holder of such Senior Indebtedness
if it shall pay over or deliver to Securityholders, the Company or any
other Person money or assets to which any holder of such Senior
Indebtedness shall be entitled by virtue of this Article Fifteen or
otherwise.
Nothing in this Article Fifteen shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 6.06.
SECTION 15.08 Subordination May Not Be Impaired.
No right of any present or future holder of any Senior
Indebtedness of the Company to enforce subordination as herein
provided shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of the Company, as the case may be,
or by any act or failure to act, in good faith, by any such holder, or
by any noncompliance by the Company, as the case may be, with the
terms, provisions and covenants of this Indenture, regardless of any
knowledge thereof that any such holder may have or otherwise be
charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness of the Company may, at
any time and from time to time, without the consent of or notice to
the Trustee or the Securityholders, without incurring responsibility
to the Securityholders and without impairing or releasing the
subordination provided in this Article Fifteen or the obligations
hereunder of the holders of the Securities to the holders of such
Senior Indebtedness, do any one or more of the following: (i) change
the manner, place or terms of payment or extend the time of payment
of, or renew or alter, such Senior Indebtedness, or otherwise amend or
supplement in any manner such Senior Indebtedness or any instrument
evidencing the same or any agreement under which such Senior
Indebtedness is outstanding; (ii) sell, exchange, release or otherwise
deal with any property pledged, mortgaged or otherwise securing such
Senior Indebtedness; (iii) release any Person liable in any manner for
the collection of such Senior Indebtedness; and (iv) exercise or
refrain from exercising any rights against the Company, as the case
may be, and any other Person.
ARTICLE XVI
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 16.01 Extension of Interest Payment Period.
So long as no Event of Default has occurred and is continuing,
the Company shall have the right, at any time and from time to time
during the term of the Securities, to defer payments of interest by
extending the interest payment period of such Securities for a period
not exceeding 10 consecutive semiannual periods, including the first
such semi-annual period during such extension period (the Extended
Interest Payment Period), during which Extended Interest Payment
Period no interest shall be due and payable; provided, that no
Extended Interest Payment Period may extend beyond the Maturity Date.
To the extent permitted by applicable law, interest, the payment of
which has been deferred because of the extension of the interest
payment period pursuant to this Section 16.01, will bear interest
thereon at the Coupon Rate compounded semi-annually for each
semi-annual period of the Extended Interest Payment Period (Compounded
Interest). At the end of the Extended Interest Payment Period, the
Company shall pay all interest accrued and unpaid on the Securities,
including any Additional Interest and Compounded Interest (together,
Deferred Interest) that shall be payable to the holders of the
Securities in whose names the Securities are registered in the
Security Register on the record date immediately preceding the end of
the Extended Interest Payment Period. Before the termination of any
Extended Interest Payment Period, the Company may further defer
payments of interest by further extending such Extended Interest
Payment Period; provided that such period, together with all such
previous and further extensions within such Extended Interest Payment
Period, shall not exceed 10 consecutive semi-annual periods, including
the first such semi-annual period during such Extended Interest
Payment Period, or extend beyond the Maturity Date. Upon the
termination of any Extended Interest Payment Period and the payment of
all Deferred Interest then due, the Company may elect to commence a
new Extended Interest Payment Period, subject to the foregoing
requirements. No interest shall be due and payable during an Extended
Interest Payment Period, except at the end thereof, but the Company
may prepay at any time all or any portion of the interest accrued
during an Extended Interest Payment Period.
SECTION 16.02 Notice of Extension.
a. If the Property Trustee is the only registered holder
of the Securities at the time the Company selects an Extended Interest
Payment Period, the Company shall give written notice to the
Administrative Trustees, the Property Trustee and the Trustee of its
election of such Extended Interest Payment Period at least five
Business Days before the earlier of (i) the next succeeding date on
which Distributions on the Trust Securities issued by First of America
Capital Trust would have been payable except for such election, and
(ii) the date First of America Capital Trust is required to give
notice of the record date, or the date such Distributions are payable,
to any national securities exchange or to holders of the Capital
Securities issued by First of America Capital Trust, but in any event
at least five Business Days before such record date.
b. If the Property Trustee is not the only holder of the
Securities at the time the Company elects an Extended Interest Payment
Period, the Company shall give the holders of the Securities and the
Trustee written notice of its election of such Extended Interest
Payment Period at least 10 Business Days before the earlier of (i) the
next succeeding Interest Payment Date, and (ii) the date the Company
is required to give notice of the record or payment date of such
interest payment to any national securities exchange.
c. The semi-annual period in which any notice is given
pursuant to paragraphs (a) or (b) of this Section 16.02 shall be
counted as one of the 10 semi-annual periods permitted in the maximum
Extended Interest Payment Period permitted under Section 16.01.
The Bank of New York hereby accepts the trusts in this Indenture
declared and provided, upon the terms and conditions hereinabove set
forth.
IN WITNESS WHEREOF, each of the undersigned has caused this
Indenture to be duly executed as of the day and year first above
written.
FIRST OF AMERICA BANK CORPORATION
By: /s/ Samuel G. Stone
Name:
Title:
THE BANK OF NEW YORK,
as Trustee
By: /s/ Mary Jane Morrissey
Name: MARY JANE MORRISSEY
Title: VICE PRESIDENT
EXHIBIT A
(FORM OF FACE OF SECURITY)
[IF THIS SECURITY IS A GLOBAL SECURITY, INSERT: THIS SECURITY IS
A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST
COMPANY (DTC) OR A NOMINEE OF DTC. THIS SECURITY IS EXCHANGEABLE FOR
SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN DTC OR ITS
NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE
AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS
SECURITY AS A WHOLE BY DTC TO A NOMINEE OF DTC OR BY A NOMINEE OF DTC
TO DTC OR ANOTHER NOMINEE OF DTC) MAY BE REGISTERED EXCEPT IN LIMITED
CIRCUMSTANCES.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC, AND ANY PAYMENT HEREON IS MADE TO
CEDE & CO. OR TO SUCH OTHER PERSON AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
[THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE SECURITIES ACT) OR ANY STATE SECURITIES
LAWS OR ANY OTHER APPLICABLE SECURITIES LAW. NEITHER THIS 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 SUCH TRANSACTION IS EXEMPT
FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES
TO OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY, PRIOR TO THE DATE
(THE RESALE RESTRICTION TERMINATION DATE) WHICH IS THREE YEARS AFTER
THE LATER OF THE ORIGINAL ISSUANCE DATE HEREOF AND THE LAST DATE ON
WHICH FIRST OF AMERICA BANK CORPORATION (THE COMPANY) OR ANY AFFILIATE
OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF
THIS SECURITY) ONLY (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT,
(C) SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE
144A UNDER THE SECURITIES ACT (RULE 144A), TO A PERSON IT 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 TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING
MADE IN RELIANCE ON 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 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 ANY OTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT,
SUBJECT TO THE RIGHT OF THE CORPORATION PRIOR TO ANY SUCH OFFER, SALE
OR TRANSFER (i) PURSUANT TO CLAUSE (D) OR (E) TO REQUIRE THE DELIVERY
OF AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION
SATISFACTORY TO THE CORPORATION, AND (ii) PURSUANT TO CLAUSE (D), TO
REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE
REVERSE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEREE
TO THE COMPANY. SUCH HOLDER FURTHER AGREES THAT IT WILL DELIVER TO
EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.]
No. R-________
FIRST OF AMERICA BANK CORPORATION
8.12% JUNIOR SUBORDINATED DEFERRABLE
INTEREST DEBENTURE DUE JANUARY 31, 2027, SERIES __
First of America Bank Corporation, a Michigan corporation (the
Company, which term includes any successor Person under the
Indenture hereinafter referred to), for value received, hereby
promises to pay to The Bank of New York, as Property Trustee of First
of America Capital Trust I, or registered assigns, the principal sum
of [ ] Dollars ($[ ]) on
January 31, 2027 (the Maturity Date), unless previously redeemed, and
to pay interest on the outstanding principal amount hereof from
January 28, 1997, or from the most recent interest payment date to
which interest has been paid or duly provided for, semi-annually
(subject to deferral as set forth herein) in arrears on January 31 and
July 31 of each year, commencing July 31, 1997 (each, an Interest
Payment Date), at the rate of 8.12% per annum until the principal
hereof shall have become due and payable, and on any overdue principal
and premium, if any, and (without duplication and to the extent that
payment of such interest is enforceable under applicable law) on any
overdue installment of interest at the same rate per annum compounded
semi-annually. The amount of interest payable on any Interest Payment
Date shall be computed on the basis of a 360-day year of twelve 30-day
months and, for any period less than a full calendar month, the number
of days elapsed in such month. In the event that any date on which
the principal of (or premium, if any) or interest on this Security is
payable is not a Business Day, then the payment payable on such date
will be made on the next succeeding day that is a Business Day (and
without any interest or other payment in respect of any such delay),
with the same force and effect as if made on such date.
The interest installment so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the
Indenture, be paid to the Person in whose name this Security (or one
or more Predecessor Securities, as defined in said Indenture) is
registered at the close of business on the regular record date for
such interest installment, which shall be the fifteenth day of the
month in which the relevant interest payment date falls. Any such
interest installment not punctually paid or duly provided for shall
forthwith cease to be payable to the holders on such regular record
date and may be paid to the Person in whose name this Security (or one
or more Predecessor Securities) is registered at the close of business
on a special record date to be fixed by the Trustee for the payment of
such defaulted interest, notice whereof shall be given to the holders
of Securities not less than 10 days prior to such special record date,
or may be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the
Securities may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in the Indenture.
The principal of (and premium, if any) and interest on this
Security shall be payable at the office or agency of the Trustee in
The City of New York, maintained for that purpose in any coin or
currency of the United States of America that at the time of payment
is legal tender for payment of public and private debts; provided,
however, that, payment of interest may be made at the option of the
Company by (i) check mailed to the holder at such address as shall
appear in the Security Register or (ii) transfer to an account
maintained by the Person entitled thereto, provided that proper
written transfer instructions have been received by the relevant
record date. Notwithstanding the foregoing, so long as the Holder of
this Security is First of America Capital Trust I or the Property
Trustee thereof, the payment of the principal of (and premium, if any)
and interest on this Security will be made in immediately available
funds at such place and to such account as may be designated by such
Property Trustee.
The indebtedness evidenced by this Security is, to the extent
provided in the Indenture, subordinate and junior in right of payment
to the prior payment in full of all Senior Indebtedness, and this
Security is issued subject to the provisions of the Indenture with
respect thereto. Each holder of this Security, by accepting the same,
(a) agrees to and shall be bound by such provisions, (b) authorizes
and directs the Trustee on his or her behalf to take such action as
may be necessary or appropriate to acknowledge or effectuate the
subordination so provided and (c) appoints the Trustee his or her
attorney-in-fact for any and all such purposes. Each holder hereof, by
his or her acceptance hereof, hereby waives all notice of the
acceptance of the subordination provisions contained herein and in the
Indenture by each holder of Senior Indebtedness, whether now
outstanding or hereafter incurred, and waives reliance by each such
holder upon said provisions.
This Security shall not be entitled to any benefit under the
Indenture hereinafter referred to, be valid or become obligatory for
any purpose until the Certificate of Authentication hereon shall have
been signed by or on behalf of the Trustee.
The provisions of this Security are continued on the reverse side
hereof and such provisions shall for all purposes have the same effect
as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Security to be
executed.
FIRST OF AMERICA BANK CORPORATION
Dated: January 28, 1997 By: _______________________
Name:
Title:
Attest:
By: ______________________________
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the
within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By:______________________________
Authorized Signatory
(FORM OF REVERSE OF SECURITY)
This Security is one of the Securities of the Company (herein
sometimes referred to as the Securities), specified in the Indenture,
all issued or to be issued under and pursuant to an Indenture, dated
as of January 28, 1997 (the (Indenture), duly executed and delivered
between the Company and The Bank of New York, as Debenture Trustee
(the Trustee), to which Indenture reference is hereby made for a
description of the rights, limitations of rights, obligations, duties
and immunities thereunder of the Trustee, the Company and the holders
of the Securities.
Upon the occurrence and continuation of a Special Event prior to
January 31, 2007, the Company shall have the right to redeem this
Security in whole (but not in part) at the Special Event Redemption
Price. Special Event Redemption Price shall mean an amount in cash
equal to the greater of (i) 100% of the principal amount hereof or
(ii) the sum, as determined by a Quotation Agent, of the present
values of 104.060% of the principal amount hereof, together with
scheduled payments of interest hereon for the Remaining Life,
discounted to the redemption date on a semi-annual basis (assuming a
360-day year consisting of twelve 30-day months) at the Adjusted
Treasury Rate, plus, in each case, any accrued and unpaid interest
thereon, including Compounded Interest and Additional Interest, if
any, to the date of such redemption.
In addition, the Company shall have the right to redeem this
Security, in whole or (subject to Section 14.02(b) of the Indenture)
in part, at any time on or after January 31, 2007, at the Optional
Redemption Price as set forth below (expressed as a percentage of the
outstanding principal amount to be redeemed) plus, in each case,
accrued and unpaid interest thereon (including Additional Interest and
Compounded Interest, if any) to the applicable date of redemption if
redeemed during the 12-month period beginning January 31 of the year
indicated below.
Year Percentage
2007 104.060%
2008 103.654%
2009 103.248%
2010 102.842%
2011 102.436%
2012 102.030%
2013 101.624%
2014 101.218%
2015 100.812%
2016 100.406%
2017 and thereafter 100.000%
The Optional Redemption Price or the Special Event Redemption
Price, as the case requires, shall be paid by the Trustee prior to
12:00 noon, New York City time, on the date of such redemption or at
such earlier time as the Company determines, provided that the Company
shall deposit with the Trustee an amount sufficient to pay the
applicable Redemption Price by 10:00 a.m., New York City time, on the
date such Redemption Price is to be paid. Any redemption pursuant to
this paragraph will be made upon not less than 30 days nor more than
60 days prior written notice to the holder hereof. If this Security
is only partially redeemed by the Company in accordance with the terms
hereof, this Security will be redeemed pro rata or by lot or by any
other method as the Trustee shall determine.
In the event of redemption of this Security in part only, a new
Security or Securities for the unredeemed portion hereof will be
issued in the name of the holder hereof upon the cancellation hereof.
Notwithstanding the foregoing, any redemption of this Security by
the Company shall be subject to the prior approval of the Board of
Governors of the Federal Reserve System (the "Federal Reserve Board")
if such approval is then required under capital guidelines or policies
of the Federal Reserve Board.
In case an Event of Default, as defined in the Indenture, shall
have occurred and be continuing, the principal of all of the
Securities may be declared, and upon such declaration shall become,
due and payable, in the manner, with the effect and subject to the
conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the holders of a majority in aggregate
principal amount of the Securities at the time outstanding, as defined
in the Indenture, to execute supplemental indentures for the purpose
of adding any provisions to or changing in any manner or eliminating
any of the provisions of the Indenture or of modifying in any manner
the rights of the holders of the Securities; provided, however, that
no such supplemental indenture shall, without the consent of each
holder of Securities then outstanding and affected thereby, (i) change
the Maturity Date of any Securities, or reduce the principal amount
thereof, or change any redemption provisions applicable thereto, or
reduce the rate or extend the time of payment of interest thereon
(subject to Article Sixteen of the Indenture), or make the principal
of, or interest or premium on, the Securities payable in any coin or
currency other than U.S. dollars, or impair or affect the right of any
holder of Securities to institute suit for the payment thereof, or
(ii) reduce the aforesaid percentage of Securities, the holders of
which are required to consent to any such supplemental indenture. The
Indenture also contains provisions permitting the holders of a
majority in aggregate principal amount of the Securities at the time
outstanding affected thereby, on behalf of all of the holders of the
Securities, to waive any past default in the performance of any of the
covenants contained in the Indenture, or established pursuant to the
Indenture, and its consequences, except a default in the payment of
the principal of or premium, if any, or interest on any of the
Securities or a default in respect of any covenant or provision under
which the Indenture cannot be modified or amended without the consent
of each holder of Securities then outstanding. Any such consent or
waiver by the holder of this Security (unless revoked as provided in
the Indenture) shall be conclusive and binding upon such holder and
upon all future holders and owners of this Security and of any
Security issued in exchange herefor or in place hereof (whether by
registration of transfer or otherwise), irrespective of whether or not
any notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of
the Company, which is absolute and unconditional, to pay the principal
of and premium, if any, and interest on this Security at the time and
place and at the rate and in the money herein prescribed.
The Company shall have the right, at any time and from time to
time during the term of the Securities, to defer payments of interest
by extending the interest payment period of such Securities for a
period not exceeding 10 consecutive semi-annual periods, including the
first such semi-annual period during such extension period, and not to
extend beyond the Maturity Date of the Securities (an Extended
Interest Payment Period ), at the end of which period the Company
shall pay all interest then accrued and unpaid (together with interest
thereon at the rate specified for the Securities to the extent that
payment of such interest is enforceable under applicable law). Before
the termination of any such Extended Interest Payment Period, the
Company may further defer payments of interest by further extending
such Extended Interest Payment Period, provided that such Extended
Interest Payment Period, together with all such previous and further
extensions within such Extended Interest Payment Period, shall not
exceed 10 consecutive semi-annual periods, including the first
semi-annual period during such Extended Interest Payment Period, or
extend beyond the Maturity Date of the Securities. Upon the
termination of any such Extended Interest Payment Period and the
payment of all accrued and unpaid interest and any additional amounts
then due, the Company may commence a new Extended Interest Payment
Period, subject to the foregoing requirements.
The Company has agreed that it will not (i) declare or pay any
dividends or distributions on, or redeem, purchase, acquire, or make a
liquidation payment with respect to, any of the Company s capital
stock (which includes common and preferred stock) or (ii) make any
payment of principal, interest or premium, if any, on or repay or
repurchase or redeem any debt securities of the Company that rank pari
passu with or junior in right of payment to the Securities or (iii)
make any guarantee payments with respect to any guarantee by the
Company of the debt securities or any Subsidiary of the Company if
such guarantee ranks pari passu or junior in right of payment to the
Securities (other than (a) dividends or distributions in shares of, or
options, warrants or rights to subscribe for or purchase shares of,
Common Stock of the Company, (b) any declaration of a dividend in
connection with the implementation of a shareholder's rights plan, or
the issuance of stock under any such plan in the future, or the
redemption or repurchase of any such rights pursuant thereto, (c)
payments under the Capital Securities Guarantee, (d) as a result of a
reclassification of the Company's capital stock or the exchange or the
conversion of one class or series of the Company's capital stock for
another class or series of the Company's capital stock, (e) the
purchase of fractional interests in shares of the Company's capital
stock pursuant to the exchange or conversion of such capital stock or
the security being exchanged or converted and (f) purchases of Common
Stock related to the issuance of Common Stock or rights under any of
the Company's benefit plans for its directors, officers or employees
or any of the Company's dividend reinvestment plans) if at such time
(1) there shall have occurred any event of which the Company has
actual knowledge that (A) constitutes a Default or an Event of Default
and (B) in respect of which the Company shall not have taken
reasonable steps to cure, (2) if the Securities are held by First of
America Capital Trust or the Property Trustee thereof, the Company
shall be in default with respect to its payment of any obligations
under the Capital Securities Guarantee or (3) the Company shall have
given notice of its election of the exercise of its right to extend
the interest payment period and any such extension shall be
continuing.
The Company will have the right at any time to terminate the
First of America Capital Trust I and cause the Securities to be
distributed to the holders of the Trust Securities in liquidation of
the Trust subject to (i) the prior approval of the Federal Reserve
Board if such approval is then required under applicable capital
guidelines or policies of the Federal Reserve Board and (ii) the
Company having received an opinion of counsel experienced in such
matters to the effect that such distribution will not be a taxable
event to such holders.
The Securities are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof.
As provided in the Indenture and subject to the transfer restrictions
limitations as may be contained herein and therein from time to time,
this Security is transferable by the holder hereof on the Security
Register of the Company, upon surrender of this Security for
registration of transfer at the office or agency of the Company in The
City of New York accompanied by a written instrument or instruments of
transfer in form satisfactory to the Company or the Trustee duly
executed by the holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Securities of authorized
denominations and for the same aggregate principal amount and series
will be issued to the designated transferee or transferees. No
service charge will be made for any such transfer, but the Company may
require payment of a sum sufficient to cover any tax or other
governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this
Security, the Company, the Trustee, any paying agent and the registrar
may deem and treat the holder hereof as the absolute owner hereof
(whether or not this Security shall be overdue and notwithstanding any
notice of ownership or writing hereon made by anyone other than the
Security Registrar) for the purpose of receiving payment of or on
account of the principal hereof and premium, if any, and (subject to
Section 2.06 of the Indenture) interest due hereon and for all other
purposes, and neither the Company nor the Trustee nor any paying agent
nor any registrar shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or
premium, if any, or interest on this Security, or for any claim based
hereon, or otherwise in respect hereof, or based on or in respect of
the Indenture, against any incorporator, stockholder, officer or
director, past, present or future, as such, of the Company or of any
predecessor or successor Person, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the
acceptance hereof and as part of the consideration for the issuance
hereof, expressly waived and released.
All terms used but not defined in this Security that are defined
in the Indenture shall have the meanings assigned to them in the
Indenture.
THE INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAW PRINCIPLES.
Exhibit 4.2
(FORM OF FACE OF SECURITY)
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITORY TRUST COMPANY ( DTC ) OR A NOMINEE OF DTC. THIS SECURITY
IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON
OTHER THAN DTC OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE AND NO TRANSFER OF THIS SECURITY (OTHER
THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY DTC TO A NOMINEE OF DTC
OR BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC) MAY BE
REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC, AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR
TO SUCH OTHER PERSON AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
No. R-001
FIRST OF AMERICA BANK CORPORATION
8.12% JUNIOR SUBORDINATED DEFERRABLE
INTEREST DEBENTURE DUE JANUARY 31, 2027, SERIES B
First of America Bank Corporation, a Michigan corporation (the
Company, which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay
to The Bank of New York, as Property Trustee of First of America
Capital Trust I, or registered assigns, the principal sum of One
Hundred Fifty-Four Million Six Hundred Forty Thousand Dollars
($154,640,000) on January 31, 2027 (the Maturity Date), unless
previously redeemed, and to pay interest on the outstanding principal
amount hereof from January 28, 1997, or from the most recent interest
payment date to which interest has been paid or duly provided for,
semi-annually (subject to deferral as set forth herein) in arrears on
January 31 and July 31 of each year, commencing July 31, 1997 (each,
an Interest Payment Date ), at the rate of 8.12% per annum until the
principal hereof shall have become due and payable, and on any overdue
principal and premium, if any, and (without duplication and to the
extent that payment of such interest is enforceable under applicable
law) on any overdue installment of interest at the same rate per annum
compounded semi-annually. The amount of interest payable on any
Interest Payment Date shall be computed on the basis of a 360-day year
of twelve 30-day months and, for any period less than a full calendar
month, the number of days elapsed in such month. In the event that
any date on which the principal of (or premium, if any) or interest on
this Security is payable is not a Business Day, then the payment
payable on such date will be made on the next succeeding day that is a
Business Day (and without any interest or other payment in respect of
any such delay), with the same force and effect as if made on such
date.
The interest installment so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the
Indenture, be paid to the Person in whose name this Security (or one
or more Predecessor Securities, as defined in said Indenture) is
registered at the close of business on the regular record date for
such interest installment, which shall be the fifteenth day of the
month in which the relevant interest payment date falls. Any such
interest installment not punctually paid or duly provided for shall
forthwith cease to be payable to the holders on such regular record
date and may be paid to the Person in whose name this Security (or one
or more Predecessor Securities) is registered at the close of business
on a special record date to be fixed by the Trustee for the payment of
such defaulted interest, notice whereof shall be given to the holders
of Securities not less than 10 days prior to such special record date,
or may be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the
Securities may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in the Indenture.
The principal of (and premium, if any) and interest on this
Security shall be payable at the office or agency of the Trustee in
The City of New York, maintained for that purpose in any coin or
currency of the United States of America that at the time of payment
is legal tender for payment of public and private debts; provided,
however, that, payment of interest may be made at the option of the
Company by (i) check mailed to the holder at such address as shall
appear in the Security Register or (ii) transfer to an account
maintained by the Person entitled thereto, provided that proper
written transfer instructions have been received by the relevant
record date. Notwithstanding the foregoing, so long as the Holder of
this Security is First of America Capital Trust I or the Property
Trustee thereof, the payment of the principal of (and premium, if any)
and interest on this Security will be made in immediately available
funds at such place and to such account as may be designated by such
Property Trustee.
The indebtedness evidenced by this Security is, to the extent
provided in the Indenture, subordinate and junior in right of payment
to the prior payment in full of all Senior Indebtedness, and this
Security is issued subject to the provisions of the Indenture with
respect thereto. Each holder of this Security, by accepting the same,
(a) agrees to and shall be bound by such provisions, (b) authorizes
and directs the Trustee on his or her behalf to take such action as
may be necessary or appropriate to acknowledge or effectuate the
subordination so provided and (c) appoints the Trustee his or her
attorney-in-fact for any and all such purposes. Each holder hereof, by
his or her acceptance hereof, hereby waives all notice of the
acceptance of the subordination provisions contained herein and in the
Indenture by each holder of Senior Indebtedness, whether now
outstanding or hereafter incurred, and waives reliance by each such
holder upon said provisions.
This Security shall not be entitled to any benefit under the
Indenture hereinafter referred to, be valid or become obligatory for
any purpose until the Certificate of Authentication hereon shall have
been signed by or on behalf of the Trustee.
The provisions of this Security are continued on the reverse side
hereof and such provisions shall for all purposes have the same effect
as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Security to be
executed.
FIRST OF AMERICA BANK
CORPORATION
Dated: May____, 1997 By:
Name:
Title:
Attest:
By:
Name:
Title:
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned
Declaration.
Dated:
THE BANK OF NEW YORK,
as Property Trustee
By:
Authorized Signatory
(FORM OF REVERSE OF SECURITY)
This Security is one of the Securities of the Company (herein
sometimes referred to as the Securities ), specified in the
Indenture, all issued or to be issued under and pursuant to an
Indenture, dated as of January 28, 1997 (the Indenture ), duly
executed and delivered between the Company and The Bank of New York,
as Debenture Trustee (the Trustee ), to which Indenture reference is
hereby made for a description of the rights, limitations of rights,
obligations, duties and immunities thereunder of the Trustee, the
Company and the holders of the Securities.
Upon the occurrence and continuation of a Special Event prior to
January 31, 2007, the Company shall have the right to redeem this
Security in whole (but not in part) at the Special Event Redemption
Price. Special Event Redemption Price shall mean an amount in cash
equal to the greater of (i) 100% of the principal amount hereof or
(ii) the sum, as determined by a Quotation Agent, of the present
values of 104.060% of the principal amount hereof, together with
scheduled payments of interest hereon for the Remaining Life,
discounted to the redemption date on a semi-annual basis (assuming a
360-day year consisting of twelve 30-day months) at the Adjusted
Treasury Rate, plus, in each case, any accrued and unpaid interest
thereon, including Compounded Interest and Additional Interest, if
any, to the date of such redemption.
In addition, the Company shall have the right to redeem this
Security, in whole or (subject to Section 14.02(b) of the Indenture)
in part, at any time on or after January 31, 2007, at the Optional
Redemption Price as set forth below (expressed as a percentage of the
outstanding principal amount to be redeemed) plus, in each case,
accrued and unpaid interest thereon (including Additional Interest and
Compounded Interest, if any) to the applicable date of redemption if
redeemed during the 12-month period beginning January 31 of the year
indicated below.
Year Percentage
2007 104.060%
2008 103.654%
2009 103.248%
2010 102.842%
2011 102.436%
2012 102.030%
2013 101.624%
2014 101.218%
2015 100.812%
2016 100.406%
2017 and thereafter 100.000%
The Optional Redemption Price or the Special Event Redemption
Price, as the case requires, shall be paid by the Trustee prior to
12:00 noon, New York City time, on the date of such redemption or at
such earlier time as the Company determines, provided that the Company
shall deposit with the Trustee an amount sufficient to pay the
applicable Redemption Price by 10:00 a.m., New York City time, on the
date such Redemption Price is to be paid. Any redemption pursuant to
this paragraph will be made upon not less than 30 days nor more than
60 days prior written notice to the holder hereof. If this Security
is only partially redeemed by the Company in accordance with the terms
hereof, this Security will be redeemed pro rata or by lot or by any
other method as the Trustee shall determine.
In the event of redemption of this Security in part only, a new
Security or Securities for the unredeemed portion hereof will be
issued in the name of the holder hereof upon the cancellation hereof.
Notwithstanding the foregoing, any redemption of this Security by
the Company shall be subject to the prior approval of the Board of
Governors of the Federal Reserve System (the "Federal Reserve Board")
if such approval is then required under capital guidelines or policies
of the Federal Reserve Board.
In case an Event of Default, as defined in the Indenture, shall
have occurred and be continuing, the principal of all of the
Securities may be declared, and upon such declaration shall become,
due and payable, in the manner, with the effect and subject to the
conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the holders of a majority in aggregate
principal amount of the Securities at the time outstanding, as defined
in the Indenture, to execute supplemental indentures for the purpose
of adding any provisions to or changing in any manner or eliminating
any of the provisions of the Indenture or of modifying in any manner
the rights of the holders of the Securities; provided, however, that
no such supplemental indenture shall, without the consent of each
holder of Securities then outstanding and affected thereby, (i) change
the Maturity Date of any Securities, or reduce the principal amount
thereof, or change any redemption provisions applicable thereto, or
reduce the rate or extend the time of payment of interest thereon
(subject to Article Sixteen of the Indenture), or make the principal
of, or interest or premium on, the Securities payable in any coin or
currency other than U.S. dollars, or impair or affect the right of any
holder of Securities to institute suit for the payment thereof, or
(ii) reduce the aforesaid percentage of Securities, the holders of
which are required to consent to any such supplemental indenture. The
Indenture also contains provisions permitting the holders of a
majority in aggregate principal amount of the Securities at the time
outstanding affected thereby, on behalf of all of the holders of the
Securities, to waive any past default in the performance of any of the
covenants contained in the Indenture, or established pursuant to the
Indenture, and its consequences, except a default in the payment of
the principal of or premium, if any, or interest on any of the
Securities or a default in respect of any covenant or provision under
which the Indenture cannot be modified or amended without the consent
of each holder of Securities then outstanding. Any such consent or
waiver by the holder of this Security (unless revoked as provided in
the Indenture) shall be conclusive and binding upon such holder and
upon all future holders and owners of this Security and of any
Security issued in exchange herefor or in place hereof (whether by
registration of transfer or otherwise), irrespective of whether or not
any notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of
the Company, which is absolute and unconditional, to pay the principal
of and premium, if any, and interest on this Security at the time and
place and at the rate and in the money herein prescribed.
The Company shall have the right, at any time and from time to time
during the term of the Securities, to defer payments of interest by
extending the interest payment period of such Securities for a period
not exceeding 10 consecutive semi-annual periods, including the first
such semi-annual period during such extension period, and not to
extend beyond the Maturity Date of the Securities (an Extended
Interest Payment Period ), at the end of which period the Company
shall pay all interest then accrued and unpaid (together with interest
thereon at the rate specified for the Securities to the extent that
payment of such interest is enforceable under applicable law). Before
the termination of any such Extended Interest Payment Period, the
Company may further defer payments of interest by further extending
such Extended Interest Payment Period, provided that such Extended
Interest Payment Period, together with all such previous and further
extensions within such Extended Interest Payment Period, shall not
exceed 10 consecutive semi-annual periods, including the first
semi-annual period during such Extended Interest Payment Period, or
extend beyond the Maturity Date of the Securities. Upon the
termination of any such Extended Interest Payment Period and the
payment of all accrued and unpaid interest and any additional amounts
then due, the Company may commence a new Extended Interest Payment
Period, subject to the foregoing requirements.
The Company has agreed that it will not (i) declare or pay any
dividends or distributions on, or redeem, purchase, acquire, or make a
liquidation payment with respect to, any of the Company s capital
stock (which includes common and preferred stock) or (ii) make any
payment of principal, interest or premium, if any, on or repay or
repurchase or redeem any debt securities of the Company that rank pari
passu with or junior in right of payment to the Securities or (iii)
make any guarantee payments with respect to any guarantee by the
Company of the debt securities or any Subsidiary of the Company if
such guarantee ranks pari passu or junior in right of payment to the
Securities (other than (a) dividends or distributions in shares of, or
options, warrants or rights to subscribe for or purchase shares of,
Common Stock of the Company, (b) any declaration of a dividend in
connection with the implementation of a shareholder's rights plan, or
the issuance of stock under any such plan in the future, or the
redemption or repurchase of any such rights pursuant thereto, (c)
payments under the Capital Securities Guarantee, (d) as a result of a
reclassification of the Company s capital stock or the exchange or the
conversion of one class or series of the Company s capital stock for
another class or series of the Company s capital stock, (e) the
purchase of fractional interests in shares of the Company s capital
stock pursuant to the exchange or conversion of such capital stock or
the security being exchanged or converted and (f) purchases of Common
Stock related to the issuance of Common Stock or rights under any of
the Company's benefit plans for its directors, officers or employees
or any of the Company's dividend reinvestment plans) if at such time
(1) there shall have occurred any event of which the Company has
actual knowledge that (A) constitutes a Default or an Event of Default
and (B) in respect of which the Company shall not have taken
reasonable steps to cure, (2) if the Securities are held by First of
America Capital Trust or the Property Trustee thereof, the Company
shall be in default with respect to its payment of any obligations
under the Capital Securities Guarantee or (3) the Company shall have
given notice of its election of the exercise of its right to extend
the interest payment period and any such extension shall be
continuing.
The Company will have the right at any time to terminate the First
of America Capital Trust I and cause the Securities to be distributed
to the holders of the Trust Securities in liquidation of the Trust
subject to (i) the prior approval of the Federal Reserve Board if such
approval is then required under applicable capital guidelines or
policies of the Federal Reserve Board and (ii) the Company having
received an opinion of counsel experienced in such matters to the
effect that such distribution will not be a taxable event to such
holders.
The Securities are issuable only in registered form without coupons
in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to the transfer restrictions
limitations as may be contained herein and therein from time to time,
this Security is transferable by the holder hereof on the Security
Register of the Company, upon surrender of this Security for
registration of transfer at the office or agency of the Company in The
City of New York accompanied by a written instrument or instruments of
transfer in form satisfactory to the Company or the Trustee duly
executed by the holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Securities of authorized
denominations and for the same aggregate principal amount and series
will be issued to the designated transferee or transferees. No
service charge will be made for any such transfer, but the Company may
require payment of a sum sufficient to cover any tax or other
governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this
Security, the Company, the Trustee, any paying agent and the registrar
may deem and treat the holder hereof as the absolute owner hereof
(whether or not this Security shall be overdue and notwithstanding any
notice of ownership or writing hereon made by anyone other than the
Security Registrar) for the purpose of receiving payment of or on
account of the principal hereof and premium, if any, and (subject to
Section 2.06 of the Indenture) interest due hereon and for all other
purposes, and neither the Company nor the Trustee nor any paying agent
nor any registrar shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or
premium, if any, or interest on this Security, or for any claim based
hereon, or otherwise in respect hereof, or based on or in respect of
the Indenture, against any incorporator, stockholder, officer or
director, past, present or future, as such, of the Company or of any
predecessor or successor Person, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the
acceptance hereof and as part of the consideration for the issuance
hereof, expressly waived and released.
All terms used but not defined in this Security that are defined in
the Indenture shall have the meanings assigned to them in the
Indenture.
THE INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
CONFLICT OF LAW PRINCIPLES.
Exhibit 4.3
State of Delaware PAGE 1
Office of the Secretary of State
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE
CERTIFICATE OF BUSINESS TRUST REGISTRATION OF "FIRST OF AMERICA
CAPITAL TRUST I", FILED IN THIS OFFICE ON THE SIXTEENTH DAY OF
JANUARY, A.D. 1997, AT 8:30 O'CLOCK A.M.
[seal] /s/ Edward J. Freel
Edward J.
Freel,
Secretary of
State
2707282 8100 AUTHENTICATION: 8288153
971015978 Date: 01-16-97
CERTIFICATE OF TRUST
The undersigned, the trustees of First of America Capital Trust I,
desiring to form a business trust pursuant to Delaware Business Trust
Act, 12 Del. C. Section 3810, hereby certify as follows:
(a) The name of the business trust being formed hereby (the
"Trust") is "First of America Capital Trust I."
(b) The name and business address of the trustee of the Trust
which has its principal place of business in the State of
Delaware is as follows:
The Bank of New York (Delaware)
White Clay Center, Route 273
Newark, Delaware 19711
(c) This Certificate of Trust shall be effective as of the date
of the filing.
Dated: January 15, 1997
/s/ Thomas W. Lambert
Name: Thomas W. Lambert
Title: Regular Trustee
/s/ Samuel G. Stone
Name: Samuel G. Stone
Title: Regular Trustee
/s/ John H. Miner
Name: John H. Miner
Title: Regular Trustee
The Bank of New York
(Delaware)
By:/s/ Mary Jane
Morrissey
Name: Mary Jane Morrissey
Title: Vice President
EXHIBIT 4.4
DECLARATION OF TRUST
Dated as of January 16, 1997
DECLARATION OF TRUST
OF
FIRST OF AMERICA CAPITAL TRUST I
January 16, 1997
DECLARATION OF TRUST ("Declaration") dated and effective as of
January 16, 1997 by the Trustees (as defined herein), the Sponsor (as
defined herein), and by the holders, from time to time, of undivided
beneficial interests in the Trust to be issued pursuant to this
Declaration;
WHEREAS, the Trustees and the Sponsor desire to establish a trust
(the "Trust") pursuant to the Business Trust Act (as defined herein)
for the sole purpose of (i) issuing and selling certain securities
representing undivided beneficial interests in the assets of the Trust
(ii) holding certain Debentures of the Debenture Issuer (each as
defined herein) and (iii) engaging in only those other activities
necessary, advisable or incidental thereto; and
NOW, THEREFORE, it being the intention of the parties hereto that
the Trust constitute a business trust under the Business Trust Act and
that this Declaration constitutes the governing instrument of such
business trust, the Trustees declare that all assets contributed to
the Trust will be held in trust for the benefit of the holders, from
time to time, of the securities representing undivided beneficial
interests in the assets of the Trust issued hereunder, subject to the
provisions of this Declaration.
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions
Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not defined
in the preamble above have the respective meanings assigned
to them in this Section 1.1;
(b) a term defined anywhere in this Declaration has the same
meaning throughout;
(c) all references to "the Declaration" or "this Declaration"
are to this Declaration of Trust as modified, supplemented
or amended from time to time;
(d) all references in this Declaration to Articles and Sections
are to Articles and Sections of this Declaration unless
otherwise specified;
(e) a reference to the singular includes the plural and vice
versa;
(f) a reference to any Person shall include its successors and
assigns;
(g) a reference to any agreement or instrument shall mean such
agreement or instrument as supplemented, modified, amended
and restated and in effect from time to time; and
(h) a reference to any statute, law, rule or regulation, shall
include any amendments thereto and any successor, statute,
law, rule or regulation.
"Administrative Trustee" means any Trustee other than the Delaware
Trustee and the Property Trustee (and which are sometimes referred to
herein and in the Certificate of Trust as the "Regular Trustees").
"FOA" means First of America Bank Corporation, a Michigan
Corporation or any successor entity in a merger.
"Affiliate" has the same meaning as given to that term in Rule 405
of the Securities Act or any successor rule thereunder.
"Business Day" means any day other than a day on which banking
institutions in The City of New York, New York are authorized or
required by any applicable law or executive order to close.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. C. Section Section 3801 et seq., as it may be amended
from time to time, or any successor legislation.
"Capital Security" means a security representing an undivided
interest in the assets of the Trust with such terms as may be set out
in any amendment to this Declaration.
"Certificate of Trust" has the meaning set forth in Section 2.7.
"Commission" means the Securities and Exchange Commission.
"Common Security" means a security representing an undivided
beneficial interest in the assets of the Trust with such terms as may
be set out in any amendment to this Declaration.
"Company Indemnified Person" means (a) any Administrative Trustee;
(b) any Affiliate of any Administrative Trustee; (c) any officers,
directors, shareholders, members, partners, employees, representatives
or agents of any Administrative Trustee; or (d) any employee or agent
of the Trust or its Affiliates.
"Covered Person" means any trustee, officer, director, shareholder,
partner, member, representative, employee or agent of the Trust or the
Trust's Affiliates.
"Debenture Issuer" means FOA in its capacity as the issuer of the
Debentures under the Indenture.
"Debentures" means Debentures to be issued by the Debenture Issuer
and acquired by the Trust.
"Debenture Trustee" means the original trustee under the Indenture
until a successor is appointed thereunder, and thereafter means any
such successor trustee.
"Delaware Trustee" has the meaning set forth in Section 3.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, or any successor legislation.
"Fiduciary Indemnified Person" has the meaning set forth in Section
4.3(b).
"Indemnified Person" means a Company Indemnified Person or a
Fiduciary Indemnified Person.
"Indenture" means the indenture to be entered into between FOA and
the Debenture Trustee pursuant to which the Debentures are to be
issued.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint
stock company, limited liability company, trust, unincorporated
association, or government or any agency or political subdivision
thereof, or any other entity of whatever nature.
"Property Trustee" has the meaning set forth in Section 3.1.
"Securities" means collectively the Common Securities and the
Capital Securities.
"Securities Act" means the Securities Act of 1933, as amended from
time to time, or any successor legislation.
"Sponsor" means FOA in its capacity as sponsor of the Trust.
"Trustee" or "Trustees" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue in
office in accordance with the terms hereof, and all other Persons who
may from time to time be duly appointed, qualified and serving as
Trustees in accordance with the provisions hereof, and reference
herein to a Trustee or the Trustees shall refer to such Person or
Persons solely in their capacity as trustees hereunder.
ARTICLE II
ORGANIZATION
SECTION 2.1 Name
The Trust created by this Declaration is named "First of America
Capital Trust I". The Trust's activities may be conducted under the
name of the Trust or any other name deemed advisable by the
Administrative Trustees.
SECTION 2.2 Office
The address of the principal office of the Trust is First of
America Capital Trust I, c/o First of America Bank Corporation, 211
South Rose Street, Kalamazoo, MI 49007, Attention: Samuel G. Stone,
Administrative Trustee. On ten Business Days written notice to the
holders of Securities, the Administrative Trustees may designate
another principal office.
SECTION 2.3 Purpose
The exclusive purposes and functions of the Trust are (a) to issue
and sell Securities, (b) purchase and hold certain Debentures of the
Debenture Issuer and (c) engage in only those other activities
necessary, advisable or incidental thereto. The Trust shall not
borrow money, issue debt or reinvest proceeds derived from
investments, pledge any of its assets, or otherwise undertake (or
permit to be undertaken) any activity that would cause the Trust not
to be classified for United States federal income tax purposes as a
grantor trust.
SECTION 2.4 Authority
Subject to the limitations provided in this Declaration, the
Administrative Trustees shall have exclusive and complete authority to
carry out the purposes of the Trust. An action taken by the
Administrative Trustees in accordance with their powers shall
constitute the act of and serve to bind the Trust. In dealing with
the Administrative Trustees acting on behalf of the Trust, no person
shall be required to inquire into the authority of the Administrative
Trustees to bind the Trust. Persons dealing with the Trust are
entitled to rely conclusively on the power and authority of the
Administrative Trustees as set forth in this Declaration.
SECTION 2.5 Title to Property of the Trust
Legal title to all assets of the Trust shall be vested in the
Trust.
SECTION 2.6 Powers of the Trustees
The Administrative Trustees shall have the exclusive power and
authority to cause the Trust to engage in the following activities:
(a) to issue and sell the Capital Securities and the Common
Securities in accordance with this Declaration; provided, however,
that the Trust may issue no more than one series of Capital Securities
and no more than one series of Common Securities, and, provided
further, that there shall be no interests in the Trust other than the
Securities;
(b) in connection with the issue and sale of the Capital
Securities, at the direction of the Sponsor, to:
(i) execute, if necessary, an offering memorandum (the "Offering
Memorandum") in preliminary and final form prepared by the Sponsor,
in relation to the offering and sale of Capital Securities (i) to
qualified institutional buyers in reliance on Rule 144A under the
Securities Act, (ii) to institutional "accredited investors" (as
defined in Rule 501(a)(1), (2), (3) or (7) under the Securities
Act), and (iii) outside the United States to non-U.S. persons in
offshore transactions in reliance on Regulation S under the
Securities Act;
(ii) execute and file any documents prepared by the Sponsor, or
take any acts as determined by the Sponsor to be necessary in order
to qualify or register all or part of the Capital Securities in any
state or foreign jurisdiction in which the Sponsor has determined
to qualify or register such Capital Securities for sale;
(iii) execute and deliver letters, documents, or instruments
with and to The Depository Trust Company relating to the Capital
Securities;
(iv) execute and enter into subscription agreements, purchase
agreements, registration rights agreements and other related
agreements providing for the sale of the Common Securities and the
Capital Securities;
(c) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors,
advisors, and consultants and provide for reasonable compensation for
such services;
(d) to incur expenses that are necessary or incidental to carry
out any of the purposes of this Declaration, which expenses shall be
paid for by the Sponsor in all respects; and
(e) to execute all documents or instruments, perform all duties
and powers, and do all things for and on behalf of the Trust in all
matters necessary or incidental to the foregoing.
SECTION 2.7 Filing of Certificate of Trust
On or after the date of execution of this Declaration, the Trustees
shall cause the filing of the Certificate of Trust for the Trust in
the form attached hereto as Exhibit A (the "Certificate of Trust")
with the Secretary of State of the State of Delaware.
SECTION 2.8 Duration of Trust
The Trust, absent termination pursuant to the provisions of Section
5.2, shall have existence for thirty-one (31) years from the date
hereof.
SECTION 2.9 Responsibilities of the Sponsor
In connection with the issue and sale of the Capital Securities,
the Sponsor shall have the exclusive right and responsibility to
engage in the following activities:
(a) to prepare the Offering Memorandum, including any amendments
or supplements thereto;
(b) to determine the state and foreign jurisdictions in which to
take appropriate action to qualify or register for sale all or part of
the Capital Securities and to do any and all such acts, other than
actions which must be taken by the Trust, and advise the Trust of
actions it must take, and prepare for execution and filing any
documents to be executed and filed by the Trust, as the Sponsor deems
necessary or advisable in order to comply with the applicable laws of
any such states and foreign jurisdictions; and
(c) to negotiate the terms of subscription agreements, purchase
agreements, registration rights and other related agreements providing
for the sale of the Common Securities and Capital Securities.
SECTION 2.10 Declaration Binding on Holders of Securities
Every Person by virtue of having become a holder of a Security or
any interest therein in accordance with the terms of this Declaration,
shall be deemed to have expressly assented and agreed to the terms of,
and shall be bound by, this Declaration.
ARTICLE III
TRUSTEES
SECTION 3.1 Trustees
The number of Trustees initially shall be four, and thereafter the
number of Trustees shall be such number as shall be fixed from time to
time by a written instrument signed by the Sponsor. The Sponsor is
entitled to appoint or remove without cause any Trustee at any time;
provided, however that the number of Trustees shall in no event be
less than two; provided further that one Trustee, in the case of a
natural person, shall be a person who is a resident of the State of
Delaware or which, if not a natural person, is an entity which has its
principal place of business in the State of Delaware (the "Delaware
Trustee") and that there shall be at least one
Administrative Trustee who is an employee or officer of, or is
affiliated with, the Sponsor.
Except as expressly set forth in this Declaration, any power of
such Administrative Trustees may be exercised by, or with the consent
of, one Administrative Trustee.
The initial Administrative Trustees shall be:
Thomas W. Lambert
Samuel G. Stone
John H. Miner
The initial Delaware Trustee shall be:
The Bank of New York (Delaware)
Prior to the issuance of the Capital Securities and the Common
Securities, the Sponsor shall appoint another trustee (the "Property
Trustee") meeting the requirements of the Trust Indenture Act of 1939,
as amended, by the execution of an amendment to this Declaration
executed by the Administrative Trustees, the Sponsor, the Property
Trustee and the Delaware Trustee.
SECTION 3.2 Delaware Trustee.
Notwithstanding any other provision of this Declaration, the
Delaware Trustee shall not be entitled to exercise any of the powers,
nor shall the Delaware Trustee have any of the duties and
responsibilities of the Administrative Trustees described in this
Declaration. The Delaware Trustee shall be a Trustee for the sole and
limited purpose of fulfilling the requirements of Section 3807 of the
Business Trust Act. Notwithstanding anything herein to the contrary,
the Delaware Trustee shall not be liable for the acts or omissions to
act of the Trust or of the Administrative Trustees and shall not be
liable for its own acts or omissions to act except such acts as the
Delaware Trustee is expressly obligated to undertake under this
Declaration or the Business Trust Act and except for the negligence or
willful misconduct of the Delaware Trustee. The Delaware Trustee may
resign by giving ten days prior written notice of such resignation to
the Sponsor; provided, however, that no such resignation shall be
effective until a successor Delaware trustee has been appointed and
accepted such appointment.
SECTION 3.3 Execution of Documents.
(a) Unless otherwise determined by the Administrative Trustees,
and except as otherwise required by the Business Trust Act, any
Administrative Trustee is authorized to execute on behalf of the Trust
any documents which the Administrative Trustees have the power and
authority to cause the Trust to execute pursuant to Section 2.6; and
(b) an Administrative Trustee may, by power of attorney consistent
with applicable law, delegate to any other natural person over the age
of 21 his or her power for the purposes of signing any documents which
the Administrative Trustees have power and authority to cause the
Trust to execute pursuant to Section 2.6.
SECTION 3.4 Not Responsible for Recitals or
Sufficiency of
Declaration
The recitals contained in this Declaration shall be taken as the
statements of the Sponsor, and the Trustees do not assume any
responsibility for their correctness. The Trustees make no
representations as to the value or condition of the property of the
Trust or any part thereof. The Trustees make no representations as to
the validity or sufficiency of this Declaration.
ARTICLE IV
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 4.1 Exculpation.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Trust or any Covered Person
for any loss, damage or claim incurred by reason of any act or
omission performed or omitted by such Indemnified Person in good faith
on behalf of the Trust and in a manner such Indemnified Person
reasonably believed to be within the scope of the authority conferred
on such Indemnified Person by this Declaration or by law, except that
an Indemnified Person shall be liable for any such loss, damage or
claim incurred by reason of such Indemnified Person's negligence or
willful misconduct with respect to such acts or omissions; and
(b) an Indemnified Person shall be fully protected in relying in
good faith upon the records of the Trust and upon such information,
opinions, reports or statements presented to the Trust by any Person
as to matters the Indemnified Person reasonably believes are within
such other Person's professional or expert competence and who has been
selected with reasonable care by or on behalf of the Trust, including
information, opinions, reports or statements as to the value and
amount of the assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which
distributions to holders of Securities might properly be paid.
SECTION 4.2 Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified
Person has duties (including fiduciary duties) and liabilities
relating thereto to the Trust or to any other Covered Person, an
Indemnified Person acting under this Declaration shall not be liable
to the Trust or to any other Covered Person for its good faith
reliance on the provisions of this Declaration. The provisions of
this Declaration, to the extent that they restrict the duties and
liabilities of an Indemnified Person otherwise existing at law or in
equity, are agreed by the parties hereto to replace such other duties
and liabilities of such Indemnified Person;
(b) unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between
Covered Persons; or
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an Indemnified
Person shall act in a manner that is, or provides terms that
are, fair and reasonable to the Trust or any holder of
Securities,
the Indemnified Person shall resolve such conflict of interest, take
such action or provide such terms, considering in each case the
relative interest of each party (including its own interest) to such
conflict, agreement, transaction or situation and the benefits and
burdens relating to such interests, any customary or accepted industry
practices and any applicable generally accepted accounting practices
or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by the
Indemnified Person shall not constitute a breach of this Declaration
or any other agreement contemplated herein or of any duty or
obligation of the Indemnified Person at law or in equity or otherwise;
and
(c) whenever in this Declaration an Indemnified Person is
permitted or required to make a decision;
(i) in its "discretion" or under a grant of similar authority,
the Indemnified Person shall be entitled to consider such
interests and factors as it desires, including its own
interests, and shall have no duty or obligation to give any
consideration to any interest of or factors affecting the
Trust or any other Person; or
(ii) in its "good faith" or under another express standard, the
Indemnified Person shall act under such express standard and
shall not be subject to any other or different standard
imposed by this Declaration or by applicable law.
SECTION 4.3 Indemnification.
(a) (i) The Sponsor shall indemnify, to the full extent
permitted by law, any Company Indemnified Person who was or is a party
or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the
right of the Trust) by reason of the fact that he is or was a Company
Indemnified Person against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Trust,
and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination
of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall
not, of itself, create a presumption that the Company Indemnified
Person did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the Trust,
and, with respect to any criminal action or proceeding, had reasonable
cause to believe that his conduct was unlawful.
(ii) The Sponsor shall indemnify, to the full extent permitted by
law, any Company Indemnified Person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the Trust to procure a judgment
in its favor by reason of the fact that he is or was a Company
Indemnified Person against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense
or settlement of such action or suit if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best
interests of the Trust, except that no such indemnification shall be
made in respect of any claim, issue or matter as to which such Company
Indemnified Person shall have been adjudged to be liable to the Trust
unless and only to the extent that the Court of Chancery of Delaware
or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which such Court of
Chancery or such other court shall deem proper.
(iii) To the extent that a Company Indemnified Person shall be
successful on the merits or otherwise (including dismissal of an
action without prejudice or the settlement of an action without
admission of liability) in defense of any action, suit or proceeding
referred to in paragraphs (i) and (ii) of this Section 4.3(a), or in
defense of any claim, issue or matter therein, he shall be
indemnified, to the full extent permitted by law, against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
(iv) Any indemnification under paragraphs (i) and (ii) of this
Section 4.3(a) (unless ordered by a court) shall be made by the
Sponsor only as authorized in the specific case upon a determination
that indemnification of the Company Indemnified Person is proper in
the circumstances because he has met the applicable standard of
conduct set forth in paragraphs (i) and (ii). Such determination
shall be made (1) by the Administrative Trustees by a majority vote of
a quorum consisting of such Administrative Trustees who were not
parties to such action, suit or proceeding, (2) if such a quorum is
not obtainable, or, even if obtainable, if a quorum of disinterested
Administrative Trustees so directs, by independent legal counsel in a
written opinion, or (3) by the Common Security holder of the Trust.
(v) Expenses (including attorneys' fees) incurred by a Company
Indemnified Person in defending a civil, criminal, administrative or
investigative action, suit or proceeding referred to in paragraphs (i)
and (ii) of this Section 4.3(a) shall be paid by the Sponsor in
advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such Company
Indemnified Person to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the Sponsor as
authorized in this Section 4.3(a) Notwithstanding the foregoing , no
advance shall be make by the Sponsor if a determination is reasonably
and promptly made (i) by the Administrative Trustees by a majority
vote of a quorum of disinterested Administrative Trustees, (ii) if
such a quorum is not obtainable, or, even if obtainable, if a quorum
of disinterested Administrative Trustees so directs, by independent
legal counsel in a written opinion or (iii) the Common Security holder
of the Trust, that based upon the facts known to the Administrative
Trustees, counsel or the Common Security holder at the time such
determination is made, such Company Indemnified Person acted in bad
faith or in a manner that such person did not believe to be in or not
opposed to the best interests of the Trust, or, with respect to any
criminal proceeding, that such Company Indemnified Person believed or
had reasonable cause to believe his conduct was unlawful. In no event
shall any advance be made in instances where the Administrative
Trustees, independent legal counsel or the Common Security holder
reasonably determine that such person deliberately breached his duty
to the Trust or the Common Security holder or the Capital Security
holders.
(vi) The indemnification and advancement of expenses provided by,
or granted pursuant to, the other paragraphs of this Section 4.3(a)
shall not be deemed exclusive of any other rights to which those
seeking indemnification and advancement of expenses may be entitled
under any agreement, vote of shareholders or disinterested directors
of the Sponsor or Capital Security holders of the Trust or otherwise,
both as to action in his official capacity and as to action in another
capacity while holding such office. All rights to indemnification
under this Section 4.3(a) shall be deemed to be provided by a contract
between the Sponsor and each Company Indemnified Person who serves in
such capacity at any time while this Section 4.3(a) is in effect. Any
repeal or modification of this Section 4.3(a) shall not affect any
rights or obligations then existing.
(vii) The Sponsor or the Trust may purchase and maintain insurance
on behalf of any person who is or was a Company Indemnified Person
against any liability asserted against him and incurred by him in any
such capacity, or arising out of his status as such, whether or not
the Sponsor would have the power to indemnify him against such
liability under the provisions of this Section 4.3(a).
(viii) For purposes of this Section 4.3(a), references to "the
Trust" shall include, in addition to the resulting or surviving
entity, any constituent entity (including any constituent of a
constituent) absorbed in a consolidation or merger, so that any Person
who is or was a director, trustee, officer or employee of such
constituent entity, or is or was serving at the request of such
constituent entity as a director, trustee, officer, employee or agent
of another entity, shall stand in the same position under the
provisions of this Section 4.3(a) with respect to the resulting or
surviving entity as he would have with respect to such constituent
entity if its separate existence had continued.
(ix) The indemnification and advancement of expenses provided by,
or granted pursuant to, this Section 4.3(a) shall, unless otherwise
provided when authorized or ratified, continue as to a Person who has
ceased to be a Company Indemnified Person and shall innure to the
benefit of the heirs, executors and administrators of such a Person.
(b) The Sponsor agrees to indemnify the (i) the Delaware Trustee,
(ii) any Affiliate of the Delaware Trustee, and (iii) any officers,
directors, shareholders, members, partners, employees,
representatives, nominees, custodians or agents of the Delaware
Trustee (each of the Persons in (i) through (iii) being referred to as
a "Fiduciary Indemnified Person") for, and to hold each Fiduciary
Indemnified Person harmless against, any loss, liability or expense
incurred without negligence or bad faith on its part, arising out of
or in connection with the acceptance or administration of the trust or
trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against, or
investigating, any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder. The
obligation to indemnify as set forth in this Section 4.3(b) shall
survive the resignation or removal of the Delaware Trustee and the
termination of this Declaration.
SECTION 4.4 Outside Businesses.
Any Covered Person, the Sponsor and the Delaware Trustee may engage
in or possess an interest in other business ventures of any nature or
description, independently or with others, similar or dissimilar to
the business of the Trust, and the Trust and the holders of Securities
shall have no rights by virtue of this Declaration in and to such
independent ventures or the income or profits derived therefrom and
the pursuit of any such venture, even if competitive with the business
of the Trust, shall not be deemed wrongful or improper. No Covered
Person, the Sponsor or the Delaware Trustee shall be obligated to
present any particular investment or other opportunity to the Trust
even if such opportunity is of a character that, if presented to the
Trust, could be taken by the Trust, and any Covered Person, the
Sponsor and the Delaware Trustee shall have the right to take for its
own account (individually or as a partner or fiduciary) or to
recommend to others any such particular investment or other
opportunity. Any Covered Person and the Delaware Trustee may engage
or be interested in any financial or other transaction with the
Sponsor or any Affiliate of the Sponsor, or may act as depositary for,
trustee or agent for or may act on any committee or body of holders
of, securities or other obligations of the Sponsor or its Affiliates.
ARTICLE V
AMENDMENTS, TERMINATION, MISCELLANEOUS
SECTION 5.1 Amendments.
At any time before the issue of any Securities, this Declaration
may be amended by, and only by, a written instrument executed by all
of the Trustees and the Sponsor.
SECTION 5.2 Termination of Trust.
(a) The Trust shall dissolve and be of no further force or effect:
(i) upon the bankruptcy of the Sponsor;
(ii) upon the filing of a certificate of dissolution or its
equivalent with respect to the Sponsor or the revocation of
the Sponsor's charter;
(iii) upon the entry of a decree of judicial dissolution of
the Sponsor or the Trust; and
(iv) before the issuance of any Securities, with the consent of
all of the Trustees and the Sponsor.
(b) As soon as is practicable after the occurrence of an event
referred to in Section 5.2(a), the Trustees shall, after satisfying
all obligations of the Trust in accordance with applicable law, file a
certificate of cancellation with the Secretary of State of the State
of Delaware and the Trust shall terminate.
SECTION 5.3 Governing Law.
THIS DECLARATION AND THE RIGHTS OF THE PARTIES HEREUNDER SHALL BE
GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF DELAWARE AND ALL RIGHTS AND REMEDIES SHALL BE GOVERNED BY SUCH LAWS
WITHOUT REGARD TO ITS PRINCIPLES OF CONFLICT OF LAWS.
SECTION 5.4 Headings.
Headings contained in this Declaration are inserted for convenience
of reference only and do not affect the interpretation of this
Declaration or any provision hereof.
SECTION 5.5 Successors and Assigns.
Whenever in this Declaration any of the parties hereto is named or
referred to, the successors and assigns of such party shall be deemed
to be included, and all covenants and agreements in this Declaration
by the Sponsor and the Trustees shall bind and inure to the benefit of
their respective successors and assigns, whether or not so expressed.
SECTION 5.6 Partial Enforceability.
If any provision of this Declaration, or the application of such
provision to any Person or circumstance, shall be held invalid, the
remainder of this Declaration, or the application of such provision to
persons or circumstances other than those to which its is held
invalid, shall not be affected thereby.
SECTION 5.7 Counterparts.
This Declaration may contain more than one counterpart of the
signature page and this Declaration may be executed by the affixing of
the signature of each of the Trustees to one of such counterpart
signature pages. All of such counterpart signature pages shall be
read as through one, and they shall have the same force and effect as
though all of the signers had signed a single signature page.
IN WITNESS WHEREOF, the undersigned have caused this Declaration to
be executed as of the day and year first above written.
/s/ Thomas W. Lambert
Name: Thomas W. Lambert
As Administrative Trustee
/s/ Samuel G. Stone
Name: Samuel G. Stone
As Administrative Trustee
/s/ John H. Miner
Name: John H. Miner
As Administrative Trustee
The Bank of New York (Delaware)
By:/s/ Joseph G. Ernst
Name: Joseph G. Ernst
Title: Assistant Vice President
First of America Bank Corporation,
as Sponsor
By: /s/ Samuel G. Stone
Name: Samuel G. Stone
Title: Senior Vice President and
Treasurer
Exhibit I
CERTIFICATE OF TRUST
The undersigned, the trustees of First of America Capital Trust I,
desiring to form a business trust pursuant to Delaware Business Trust
Act, 12 Del. C. Section 3810, hereby certify as follows:
(a) The name of the business trust being formed hereby (the "Trust")
is "First of America Capital Trust I."
(b) The name and business address of the trustee of the Trust which
has its principal place of business in the State of Delaware is as
follows:
The Bank of New York (Delaware)
White Clay Center, Route 273
Newark, Delaware 19711
(c) This Certificate of Trust shall be effective as of the date of
the filing.
Dated: January [ ], 1997
Name: Thomas W. Lambert
Title: Regular Trustee
Name: Samuel G. Stone
Title: Regular Trustee
Name: John H. Miner
Title: Regular Trustee
The Bank of New York (Delaware)
By:
Name:
Title:
EXHIBIT 4.5
AMENDED AND RESTATED DECLARATION
OF TRUST
OF
FIRST OF AMERICA CAPITAL TRUST I
Dated as of January 28, 1997
TABLE OF CONTENTS
Page
ARTICLE I.
SECTION 1.1 Definitions 2
ARTICLE II.
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application 10
SECTION 2.2 Lists of Holders of Securities 10
SECTION 2.3 Reports by the Property Trustee 11
SECTION 2.4 Periodic Reports to Property Trustee 11
SECTION 2.5 Evidence of Compliance with Conditions Precedent 11
SECTION 2.6 Events of Default; Waiver 11
SECTION 2.7 Event of Default; Notice 13
ARTICLE III.
ORGANIZATION
SECTION 3.1 Name 14
SECTION 3.2 Office 14
SECTION 3.3 Purpose 14
SECTION 3.4 Authority 14
SECTION 3.5 Title to Property of the Trust 14
SECTION 3.6 Powers and Duties of the Administrative Trustees 15
SECTION 3.7 Prohibition of Actions by the Trust
and the Trustees 18
SECTION 3.8 Powers and Duties of the Property Trustee 19
SECTION 3.9 Certain Duties and Responsibilities of the Property
Trustee 21
SECTION 3.10 Certain Rights of Property Trustee 23
SECTION 3.11 Delaware Trustee 25
SECTION 3.12 Execution of Documents 25
SECTION 3.13 Not Responsible for Recitals or
Issuance of Securities 25
SECTION 3.14 Duration of Trust 26
SECTION 3.15 Mergers 26
ARTICLE IV.
SPONSOR
SECTION 4.1 Sponsor's Purchase of Common Securities 28
SECTION 4.2 Responsibilities of the Sponsor 28
SECTION 4.3 Right to Proceed 28
ARTICLE V.
TRUSTEES
SECTION 5.1 Number of Trustees: Appointment of Co-Trustee 29
SECTION 5.2 Delaware Trustee 29
SECTION 5.3 Property Trustee: Eligibility 30
SECTION 5.4 Certain Qualifications of Administrative
Trustees and Delaware Trustee Generally 31
SECTION 5.5 Administrative Trustees 31
SECTION 5.6 Appointment, Removal and Resignation of Trustees 31
SECTION 5.7 Vacancies among Trustees 33
SECTION 5.8 Effect of Vacancies 33
SECTION 5.9 Meetings 34
SECTION 5.10 Delegation of Power 34
SECTION 5.11 Merger, Conversion, Consolidation or
Succession to Business 34
ARTICLE VI.
DISTRIBUTIONS
SECTION 6.1 Distributions 35
ARTICLE VII.
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities 35
SECTION 7.2 Execution and Authentication 36
SECTION 7.3 Form and Dating 37
SECTION 7.4 Registrar, Paying Agent and Exchange Agent 38
SECTION 7.5 Paying Agent to Hold Money in Trust 39
SECTION 7.6 Replacement Securities 39
SECTION 7.7 Outstanding Capital Securities 39
SECTION 7.8 Capital Securities in Treasury 40
SECTION 7.9 Temporary Securities 40
SECTION 7.10 Cancellation 41
SECTION 7.11 CUSIP Numbers 41
ARTICLE VIII.
TERMINATION OF TRUST
SECTION 8.1 Termination of Trust 42
ARTICLE IX.
TRANSFER OF INTERESTS
SECTION 9.1 Transfer of Securities 43
SECTION 9.2 Transfer Procedures and Restrictions 43
SECTION 9.3 Deemed Security Holders 51
SECTION 9.4 Book Entry Interests 52
SECTION 9.5 Notices to Clearing Agency 52
SECTION 9.6 Appointment of Successor Clearing Agency 52
ARTICLE X.
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1 Liability. 53
SECTION 10.2 Exculpation. 53
SECTION 10.3 Fiduciary Duty 54
SECTION 10.4 Indemnification 55
SECTION 10.5 Compensation of Property Trustee
and Delaware Trustee. 57
SECTION 10.6 Outside Businesses 58
ARTICLE XI.
ACCOUNTING
SECTION 11.1 Fiscal Year 58
SECTION 11.2 Certain Accounting Matters 58
SECTION 11.3 Banking 59
SECTION 11.4 Withholding 59
ARTICLE XII.
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments 60
SECTION 12.2 Meetings of the Holders of Securities; Action by
Written Consent 62
ARTICLE XIII.
REPRESENTATIONS OF PROPERTY TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of Property Trustee 63
SECTION 13.2 Representations and Warranties of Delaware Trustee 64
ARTICLE XIV.
REGISTRATION RIGHTS
SECTION 14.1 Registration Rights Agreement; Liquidated Damages 65
ARTICLE XV.
MISCELLANEOUS
SECTION 15.1 Notices 67
SECTION 15.2 Governing Law 68
SECTION 15.3 Intention of the Parties 68
SECTION 15.4 Headings 68
SECTION 15.5 Successors and Assigns 68
SECTION 15.6 Partial Enforceability 68
SECTION 15.7 Counterparts 68
CROSS-REFERENCE TABLE*
Section of
Trust Indenture Act
Section of
of 1939, as amended
Declaration
310(c) Section 5.3
311(a) Section 2.2
311(b) Section 2.2
312(b) Section 2.2
313 Section 2.3
314 Section 2.4
314(a) Section 3.6
314(c) Section 2.5
314(e) Section 1.1
315 Section 3.9
316(a) Section 2.6
316(c) Section 3.6
317(a) Section 3.8
317(b) Section 3.8
318 Section 2.1
* This Cross-Reference Table does not constitute part of this
Declaration and shall not affect the interpretation of any of its
terms or provisions.
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
FIRST OF AMERICA CAPITAL TRUST I
Dated as of January 28, 1997
AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration")
dated and effective as of January 28, 1997, by the Trustees (as
defined herein), the Sponsor (as defined herein) and by the holders,
from time to time, of undivided beneficial interests in the Trust to
be issued pursuant to this Declaration;
WHEREAS, the Trustees and the Sponsor established First of
America Capital Trust I (the "Trust"), a trust formed under the
Delaware Business Trust Act pursuant to a Declaration of Trust dated
as of January 16, 1997 (the "Original Declaration"), and a Certificate
of Trust filed with the Secretary of State of the State of Delaware on
January 16, 1997, for the sole purpose of issuing and selling certain
securities representing undivided beneficial interests in the assets
of the Trust and investing the proceeds thereof in certain Debentures
of the Debenture Issuer (each as hereinafter defined);
WHEREAS, prior to the date hereof, no Securities (as defined
herein) have been issued;
WHEREAS, all of the Trustees and the Sponsor, by this
Declaration, amend and restate each and every term and provision of
the Original Declaration; and
NOW, THEREFORE, it being the intention of the parties hereto
to continue the Trust as a business trust under the Business Trust Act
and that this Declaration constitute the governing instrument of such
business trust, the Trustees declare that all assets contributed to
the Trust will be held in trust for the benefit of the holders, from
time to time, of the securities representing undivided beneficial
interests in the assets of the Trust issued hereunder, subject to the
provisions of this Declaration and, in consideration of the mutual
covenants contained herein and other good and valuable consideration,
the receipt of which is hereby acknowledged, the Trustees, intending
to be legally bound hereby, agree as follows:
ARTICLE I.
INTERPRETATION AND DEFINITIONS
SECTION 1.A. Definitions.
Unless the context otherwise requires:
(i) Capitalized terms used in this Declaration but not
defined in the preamble above or elsewhere herein have the
respective meanings assigned to them in this Section 1.1;
(ii) a term defined anywhere in this Declaration has the
same meaning throughout;
(iii) all references to "the Declaration" or "this
Declaration" are to this Declaration as modified, supplemented or
amended from time to time;
(iv) all references in this Declaration to Articles and
Sections and Annexes and Exhibits are to Articles and Sections of
and Annexes and Exhibits to this Declaration unless otherwise
specified;
(v) a term defined in the Trust Indenture Act has the same
meaning when used in this Declaration unless otherwise defined in
this Declaration or unless the context otherwise requires;
(vi) a term defined in the Indenture (as defined herein) has
the same meaning when used in this Declaration unless otherwise
defined in this Declaration or the context otherwise requires;
and
(vii) a reference to the singular includes the plural and vice
versa.
"Administrative Trustee" has the meaning set forth in Section
5.1.
"Affiliate" has the same meaning as given to that term in Rule
405 under the Securities Act or any successor rule thereunder.
"Agent" means any Paying Agent, Registrar or Exchange Agent.
"Authorized Officer" of a Person means any other Person that is
authorized to legally bind such former Person.
"Book Entry Interest" means a beneficial interest in the Global
Capital Security registered in the name of a Clearing Agency or its
nominee, ownership and transfers of which shall be maintained and made
through book entries by a Clearing Agency as described in Section 9.4.
"Business Day" means any day other than a Saturday or a Sunday or
a day on which banking institutions in The City of New York or
Wilmington, Delaware are authorized or required by law or executive
order to close.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code 3801 et seq., as it may be amended from time to
time or any successor legislation.
"Capital Security Beneficial Owner" means, with respect to a Book
Entry Interest, a Person who is the beneficial owner of such Book
Entry Interest, as reflected on the books of the Clearing Agency, or
on the books of a Person maintaining an account with such Clearing
Agency (directly as a Clearing Agency Participant or as an indirect
participant, in each case in accordance with the rules of such
Clearing Agency).
"Capital Securities" means, collectively, the Series A Capital
Securities and the Series B Capital Securities.
"Capital Securities Guarantee" means, collectively, the Series A
Capital Securities Guarantee and the Series B Capital Securities
Guarantee.
"Capital Security Certificate" has the meaning set forth in
Section 9.4.
"Clearing Agency" means an organization registered as a "Clearing
Agency" pursuant to Section 17A of the Exchange Act that is acting as
depositary for the Capital Securities and in whose name or in the name
of a nominee of that organization shall be registered a Global
Certificate and which shall undertake to effect book entry transfers
and pledges of the Capital Securities.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time the
Clearing Agency effects book entry transfers and pledges of securities
deposited with the Clearing Agency.
"Closing Time" means the "Closing Time" under the Purchase
Agreement.
"Code" means the Internal Revenue Code of 1986, as amended from
time to time, or any successor legislation.
"Commission" means the United States Securities and Exchange
Commission as from time to time constituted, or if any time after the
execution of this Declaration such Commission is not existing and
performing the duties now assigned to it under applicable Federal
securities laws, then the body performing such duties at such time.
"Common Securities" has the meaning specified in Section 7.1(a).
"Common Securities Guarantee" means the Common Securities
Guarantee Agreement, dated as of the Closing Time, of the Sponsor in
respect of the Common Securities.
"Common Securities Subscription Agreement" means the Common
Securities Subscription Agreement, dated as of the Closing Time,
between the Trust and the Sponsor relating to the Common Securities.
"Company Indemnified Person" means (a) any Administrative
Trustee; (b) any Affiliate of any Administrative Trustee; (c) any
officers, directors, shareholders, members, partners, employees,
representatives or agents of any Administrative Trustee; or (d) any
officer, employee or agent of the Trust or its Affiliates.
"Corporate Trust Office" means the office of the Property Trustee
at which the corporate trust business of the Property Trustee shall,
at any particular time, be principally administered, which office at
the date of execution of this Agreement is located at 101 Barclay
Street, 21 West, New York, New York 10286.
"Covered Person" means: (a) any officer, director, shareholder,
partner, member, representative, employee or agent of (i) the Trust or
(ii) the Trust's Affiliates; and (b) any Holders of Securities.
"Debenture Issuer" means First of America Bank Corporation, a
Michigan corporation, or any successor entity resulting from any
consolidation, amalgamation, merger or other business combination, in
its capacity as issuer of the Debentures under the Indenture.
"Debenture Trustee" means The Bank of New York, a New York
banking corporation, as trustee under the Indenture until a successor
is appointed thereunder, and thereafter means such successor trustee.
"Debentures" means, collectively, the Series A Debentures and the
Series B Debentures.
"Default" means an event, act or condition that with notice or
lapse of time, or both, would constitute an Event of Default.
"Definitive Capital Securities" has the meaning set forth in
Section 7.3(d).
"Delaware Trustee" has the meaning set forth in Section 5.2.
"Direct Action" has the meaning set forth in Section 3.8(e).
"Distribution" means a distribution payable to Holders of
Securities in accordance with Section 6.1.
"DTC" means The Depository Trust Company, the initial Clearing
Agency.
"Event of Default" in respect of the Securities means an Event of
Default (as defined in the Indenture) that has occurred and is
continuing in respect of the Debentures.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, or any successor legislation.
"Exchange Agent" has the meaning set forth in Section 7.4.
"Exchange Offer" means the offer that may be made pursuant to the
Registration Rights Agreement (i) by the Trust to exchange Series B
Capital Securities for Series A Capital Securities and (ii) by the
Debenture Issuer to exchange Series B Debentures for Series A
Debentures and the Series B Capital Securities Guarantee for the
Series A Capital Securities Guarantee.
"Exchange Offer Registration Statement" has the meaning set forth
in Section 14.1.
"Federal Reserve Board" means the Board of Governors of the
Federal Reserve System.
"Fiduciary Indemnified Person" has the meaning set forth in
Section 10. 4(b).
"Global Capital Security" has the meaning set forth in Section
7.3(b).
"Holder" means a Person in whose name a Security is registered,
such Person being a beneficial owner within the meaning of the
Business Trust Act.
"Indemnified Person" means a Company Indemnified Person or a
Fiduciary Indemnified Person.
"Indenture" means the Indenture, dated as of the Closing Time,
between the Debenture Issuer and the Debenture Trustee, as amended
from time to time.
"Initial Optional Redemption Date" has the meaning set forth in
Section 4(b) of Annex I hereto.
"Investment Company" means an investment company as defined in
the Investment Company Act.
"Investment Company Act" means the Investment Company Act of
1940, as amended from time to time, or any successor legislation.
"Legal Action" has the meaning set forth in Section 3.6(g).
"Like Amount" has the meaning set forth in Section 3 of Annex I
hereto.
"Majority in liquidation amount" means, with respect to the Trust
Securities, except as provided in the terms of the Capital Securities
or 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 Capital Securities or Holders of
outstanding Common Securities voting separately as a class, who are
the record owners of more than 50% of the aggregate liquidation amount
(including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accumulated and unpaid Distributions to
the date upon which the voting percentages are determined) of all
outstanding Securities of the relevant class.
"Offering Memorandum" has the meaning set forth in Section
3.6(b).
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the chairman, a vice chairman, the chief
executive officer, the president, a vice president, the treasurer, an
assistant treasurer, the secretary or an assistant secretary of such
Person. Any Officers' Certificate delivered with respect to compliance
with a condition or covenant provided for in this Declaration shall
include:
(i) a statement that each officer signing the Certificate has
read the covenant or condition and the definitions relating thereto:
(ii) a brief statement of the nature and scope of the examination
or investigation undertaken by each officer in rendering the
Certificate;
(iii) a statement that each such officer has made such examination
or investigation as, in such officer's opinion, is necessary to enable
such officer to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may
be an employee of the Sponsor, and who shall be acceptable to the
Property Trustee.
"Participants" has the meaning set forth in Section 7.3(b).
"Paying Agent" has the meaning specified in Section 7.4.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint
stock company, limited liability company, trust, unincorporated
association, or government or any agency or political subdivision
thereof, or any other entity of whatever nature.
"Property Trustee" has the meaning set forth in Section 5.3(a).
"Property Trustee Account" has the meaning set forth in
Section 3.8(c).
"Purchase Agreement" means the Purchase Agreement, dated January
21, 1997, by and among the Trust, the Debenture Issuer and the Initial
Purchasers named therein.
"QIBs" shall mean qualified institutional buyers as defined in
Rule 144A.
"Quorum" means a majority of the Administrative Trustees or, if
there are only two Administrative Trustees, both of them.
"Registrar" has the meaning set forth in Section 7.4.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of the Closing Time, by and among the Trust, the
Debenture Issuer and the Initial Purchasers named therein, as amended
from time to time.
"Registration Statement" has the meaning set forth in the
Registration Rights Agreement.
"Responsible Officer" means, with respect to the Property
Trustee, any officer within the Corporate Trust Office of the Property
Trustee, including any vice president, any assistant vice president,
the secretary, any assistant secretary, the treasurer, any assistant
treasurer or other officer of the Corporate Trust Office of the
Property Trustee customarily performing functions similar to those
performed by any of the above designated officers, and also means,
with respect to a particular corporate trust matter, any other officer
to whom such matter is referred because of that officer's knowledge of
and familiarity with the particular subject.
"Restricted Definitive Capital Securities" has the meaning set
forth in Section 7.3(d).
"Restricted Capital Security" means a Capital Security required
by Section 9.2 to contain a Restricted Securities Legend.
"Restricted Securities Legend" has the meaning set forth in
Section 9.2.
"Rule 3a-5" means Rule 3a-5 under the Investment Company Act, or
any successor rule or regulation.
"Rule 144" means Rule 144 under the Securities Act, as such rule
may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission.
"Rule 144A" means Rule 144A under the Securities Act, as such
rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the Commission.
"Securities" or "Trust Securities" means the Common Securities
and the Capital Securities.
"Securities Act" means the Securities Act of 1933, as amended
from time to time, or any successor legislation.
"Securities Guarantees" means the Common Securities Guarantee and
the Capital Securities Guarantee.
"Series A Capital Securities" has the meaning specified in
Section 7.1(a).
"Series A Capital Securities Guarantee" means the Capital
Securities, Series A, Guarantee Agreement, dated as of the Closing
Time, between the Sponsor and The Bank of New York, as guarantee
trustee, in respect of the Series A Capital Securities.
"Series A Debentures" means the 8.12% Junior Subordinated
Deferrable Interest Debentures due January 31, 2027, Series A, of the
Debenture Issuer issued pursuant to the Indenture.
"Series B Capital Securities" has the meaning specified in
Section 7.1(a).
"Series B Capital Securities Guarantee" means the Series B
Capital Securities Guarantee Agreement to be entered in connection
with the Exchange Offer by the Sponsor in respect of the Series B
Capital Securities.
"Series B Debentures" means the 8.12% Junior Subordinated
Deferrable Interest Debentures due January 31, 2027, Series B, of the
Debenture Issuer issued pursuant to the Indenture.
"Special Event" has the meaning set forth in Section 4(c) of
Annex I hereto.
"Special Event Redemption Price" has the meaning set forth in
Section 4(c) of Annex I hereto.
"Sponsor" means First of America Bank Corporation, a Michigan
corporation, or any successor Person or Persons resulting from any
merger, consolidation, amalgamation or other business combination, in
its capacity as sponsor of the Trust.
"Successor Entity" has the meaning specified in Section 3.15(b).
"Successor Property Trustee" has the meaning specified in Section
3.8(f).
"Successor Securities" has the meaning specified in Section
3.15(b).
"Super Majority" has the meaning set forth in Section 2.6(a)(ii).
"10% in liquidation amount" means, with respect to the Trust
Securities, except as provided in the terms of the Capital Securities
or 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 Capital Securities or Holders of
outstanding Common Securities voting separately as a class, who are
the record owners of 10% or more of the aggregate liquidation amount
(including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accumulated and unpaid Distributions to
the date upon which the voting percentages are determined) of all
outstanding Securities of the relevant class.
"Treasury Regulations" means the income tax regulations,
including temporary and proposed regulations, promulgated under the
Code by the United States Treasury, as such regulations may be amended
from time to time (including corresponding provisions of succeeding
regulations).
"Trustee" or "Trustees" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue as
trustee of the Trust in accordance with the terms hereof, and all
other Persons who may from time to time be duly appointed, qualified
and serving as Trustees in accordance with the provisions hereof, and
references herein to a Trustee or the Trustees shall refer to such
Person or Persons solely in their capacity as trustees hereunder.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended from time to time, or any successor legislation.
"Unrestricted Global Capital Security" has the meaning set forth
in Section 9.2(b).
ARTICLE II.
TRUST INDENTURE ACT
SECTION 2.1. Trust Indenture Act; Application.
a. This Declaration is subject to the provisions of the
Trust Indenture Act that are required to be part of this Declaration
and shall, to the extent applicable, be governed by such provisions.
b. The Property Trustee shall be the only Trustee that is
a Trustee for the purposes of the Trust Indenture Act.
c. If and to the extent that any provision of this
Declaration limits, qualifies or conflicts with the duties imposed by
Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed
duties shall control.
d. The application of the Trust Indenture Act to this
Declaration shall not affect the nature of the Securities as equity
securities representing undivided beneficial interests in the assets
of the Trust.
SECTION 2.2 Lists of Holders of Securities.
a. Each of the Sponsor and the Administrative Trustees on
behalf of the Trust shall provide the Property Trustee, unless the
Property Trustee is Registrar for the Securities (i) within fourteen
(14) days after each record date for payment of Distributions, a list,
in such form as the Property Trustee may reasonably require, of the
names and addresses of the Holders of the Securities ("List of
Holders") as of such record date, provided that neither the Sponsor
nor the Administrative Trustees on behalf of the Trust shall be
obligated to provide such List of Holders at any time the List of
Holders does not differ from the most recent List of Holders given to
the Property Trustee by the Sponsor and the Administrative Trustees on
behalf of the Trust, and (ii) at any other time, within 30 days of
receipt by the Trust of a written request for a List of Holders as of
a date no more than 14 days before such List of Holders is given to
the Property Trustee. The Property Trustee shall preserve, in as
current a form as is reasonably practicable, all information contained
in Lists of Holders given to it or which it receives in the capacity
as Paying Agent (if acting in such capacity), provided that the
Property Trustee may destroy any List of Holders previously given to
it on receipt of a new List of Holders.
c. The Property Trustee shall comply with its obligations
under Section Section 311(a), 311(b) and 312(b) of the Trust Indenture
Act.
SECTION 2.3 Reports by the Property Trustee.
Within 60 days after January 15 of each year, commencing
January 15, 1998, the Property Trustee shall provide to the Holders of
the Capital Securities such reports as are required by Section 313 of
the Trust Indenture Act, if any, in the form and in the manner
provided by Section 313 of the Trust Indenture Act. The Property Trustee
shall also comply with the requirements of Sections 313(d) of the
Trust Indenture Act.
SECTION 2.4 Periodic Reports to Property Trustee.
Each of the Sponsor and the Administrative Trustees on
behalf of the Trust shall provide to the Property Trustee such
documents, reports and information as are required by Section 314 (if
any) of the Trust Indenture Act and the compliance certificate
required by Section 314 of the Trust Indenture Act in the form, in the
manner and at the times required by Section 314 of the Trust Indenture
Act.
SECTION 2.5 Evidence of Compliance with Conditions Precedent.
Each of the Sponsor and the Administrative Trustees on
behalf of the Trust shall provide to the Property Trustee such
evidence of compliance with any conditions precedent provided for in
this Declaration 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 may be given in the form of an Officers'
Certificate.
SECTION 2.6 Events of Default; Waiver.
a. The Holders of a Majority in liquidation amount of
Capital Securities may, by vote, on behalf of the Holders of all of
the Capital Securities, waive any past Event of Default in respect of
the Capital Securities and its consequences, provided that, if the
underlying Event of Default under the Indenture:
(i) is not waivable under the Indenture, the Event of
Default under the Declaration shall also not be waivable; or
(ii) requires the consent or vote of greater than a
majority in aggregate principal amount of the holders of the
Debentures (a "Super Majority") to be waived under the Indenture,
the Event of Default under the Declaration may only be waived by
the vote of the Holders of at least the proportion in aggregate
liquidation amount of the Capital Securities that the relevant
Super Majority represents of the aggregate principal amount of
the Debentures outstanding.
The foregoing provisions of this Section 2.6(a) shall be in lieu of
Section 316(a)(1)(B) of the Trust Indenture Act and such
Section 316(a)(1)(B) of the Trust Indenture Act is hereby expressly
excluded from this Declaration and the Securities, as permitted by the
Trust Indenture Act. Upon such waiver, any such Default shall cease
to exist, and any Event of Default with respect to the Capital
Securities arising therefrom shall be deemed to have been cured, for
every purpose of this Declaration, but no such waiver shall extend to
any subsequent or other Default or an Event of Default with respect to
the Capital Securities or impair any right consequent thereon. Any
waiver by the Holders of the Capital Securities of an Event of Default
with respect to the Capital Securities shall also be deemed to
constitute a waiver by the Holders of the Common Securities of any
such Event of Default with respect to the Common Securities for all
purposes of this Declaration without any further act, vote, or consent
of the Holders of the Common Securities.
b. The Holders of a Majority in liquidation amount of the
Common Securities may, by vote, on behalf of the Holders of all of the
Common Securities, waive any past Event of Default with respect to the
Common Securities and its consequences, provided that, if the
underlying Event of Default under the Indenture:
(i) is not waivable under the Indenture, except where
the Holders of the Common Securities are deemed to have waived
such Event of Default under the Declaration as provided below in
this Section 2.6(b), the Event of Default under the Declaration
shall also not be waivable; or
(ii) requires the consent or vote of a Super Majority
to be waived, except where the Holders of the Common Securities
are deemed to have waived such Event of Default under the
Declaration as provided below in this Section 2.6(b), the Event
of Default under the Declaration may only be waived by the vote
of the Holders of at least the proportion in aggregate
liquidation amount of the Common Securities that the relevant
Super Majority represents of the aggregate principal amount of
the Debentures outstanding;
provided further, each Holder of Common Securities will be deemed to
have waived any such Event of Default and all Events of Default with
respect to the Common Securities and its consequences if all Events of
Default with respect to the Capital Securities have been cured, waived
or otherwise eliminated, and until such Events of Default have been so
cured, waived or otherwise eliminated, the Property Trustee will be
deemed to be acting solely on behalf of the Holders of the Capital
Securities and only the Holders of the Capital Securities will have
the right to direct the Property Trustee in accordance with the terms
of the Securities. The foregoing provisions of this Section 2.6(b)
shall be in lieu of Section Section 316(a)(1)(A) and 316(a)(1)(B) of
the Trust Indenture Act and such Section Section 316(a)(1)(A) and
316(a)(1)(B) of the Trust Indenture Act are hereby expressly excluded
from this Declaration and the Securities, as permitted by the Trust
Indenture Act. Subject to the foregoing provisions of this Section
2.6(b), upon such waiver, any such default shall cease to exist and
any Event of Default with respect to the Common Securities arising
therefrom shall be deemed to have been cured for every purpose of this
Declaration, but no such waiver shall extend to any subsequent or
other default or Event of Default with respect to the Common
Securities or impair any right consequent thereon.
c. A waiver of an Event of Default under the Indenture by
the Property Trustee, at the direction of the Holders of the Capital
Securities, constitutes a waiver of the corresponding Event of Default
under this Declaration. The foregoing provisions of this Section
2.6(c) shall be in lieu of Section 316(a)(1)(B) of the Trust Indenture
Act and such Section 316(a)(1)(B) of the Trust Indenture Act is hereby
expressly excluded from this Declaration and the Securities, as
permitted by the Trust Indenture Act.
SECTION 2.7 Event of Default; Notice.
a. The Property Trustee shall, within 90 days after a
Responsible Officer obtains knowledge of the occurrence of a Default,
transmit by mail, first class postage prepaid, to the Holders of the
Securities, notices of all Defaults with respect to the Securities
actually known to a Responsible Officer of the Property Trustee,
unless such Defaults have been cured before the giving of such notice;
provided that, except for a Default in the payment of principal of (or
premium, if any) or interest on any of the Debentures, the Property
Trustee shall be protected in withholding such notice if and so long
as a Responsible Officer of the Property Trustee in good faith
determines that the withholding of such notice is in the interests of
the Holders of the Securities.
b. The Property Trustee shall not be deemed to have
knowledge of any Default or Event of Default except:
(i) a default under Sections 5.01(a) and 5.01(b) of
the Indenture; or
(ii) any Default or Event of Default as to which the
Property Trustee shall have received written notice or of which a
Responsible Officer of the Property Trustee charged with the
administration of the Declaration shall have actual knowledge.
c. Within five Business Days after the occurrence of any
Event of Default actually known to the Property Trustee, the Property
Trustee shall transmit notice of such Event of Default to the holders
of the Capital Securities, the Administrative Trustees and the
Sponsor, unless such Event of Default shall have been cured or waived.
The Sponsor and the Administrative Trustees shall file annually with
the Property Trustee a certification as to whether or not they are in
compliance with all the conditions and covenants applicable to them
under this Declaration.
ARTICLE III
ORGANIZATION
SECTION 3.1 Name.
The Trust is named "First of America Capital Trust I" as
such name may be modified from time to time by the Administrative
Trustees following written notice to the Property Trustee, the
Delaware Trustee and the Holders of Securities. The Trust's activities
may be conducted under the name of the Trust or any other name deemed
advisable by the Administrative Trustees.
SECTION 3.2 Office.
The address of the principal office of the Trust is c/o
First of America Bank Corporation, 211 South Rose Street, Kalamazoo,
Michigan 49007. On ten Business Days prior written notice to the
Property Trustee, the Delaware Trustee and the Holders of Securities,
the Administrative Trustees may designate another principal office.
SECTION 3.3 Purpose.
The exclusive purposes and functions of the Trust are (a) to
issue and sell Securities, (b) use the proceeds from the sale of the
Securities to acquire the Debentures, and (c) except as otherwise
limited herein, to engage in only those other activities necessary,
advisable or incidental thereto, including without limitation, those
activities specified in Section 3.6. The Trust shall not borrow
money, issue debt or reinvest proceeds derived from investments,
mortgage or pledge any of its assets, or otherwise undertake (or
permit to be undertaken) any activity that would cause the Trust not
to be classified for United States federal income tax purposes as a
grantor trust.
SECTION 3.4 Authority.
Subject to the limitations provided in this Declaration and
to the specific duties of the Property Trustee, the Administrative
Trustees shall have exclusive and complete authority to carry out the
purposes of the Trust. An action taken by the Administrative Trustees
in accordance with their powers shall constitute the act of and serve
to bind the Trust and an action taken by the Property Trustee on
behalf of the Trust in accordance with its powers shall constitute the
act of and serve to bind the Trust. In dealing with the Trustees
acting on behalf of the Trust, no Person shall be required to inquire
into the authority of the Trustees to bind the Trust. Persons dealing
with the Trust are entitled to rely conclusively on the power and
authority of the Trustees as set forth in this Declaration.
SECTION 3.5 Title to Property of the Trust.
Except as provided in Section 3.8 with respect to the
Debentures and the Property Trustee Account or as otherwise provided
in this Declaration, legal title to all assets of the Trust shall be
vested in the Trust. The Holders shall not have legal title to any
part of the assets of the Trust, but shall have an undivided
beneficial interest in the assets of the Trust.
SECTION 3.6 Powers and Duties of the Administrative Trustees.
The Administrative Trustees shall have the exclusive power,
duty and authority to cause the Trust to engage in the following
activities:
a. to issue and sell the Capital Securities and (pursuant
to the Common Securities Subscription Agreement) the Common Securities
in accordance with this Declaration; provided, however, that except,
in the case of (i) and (ii), as contemplated in Section 7.1(a), (i)
the Trust may issue no more than one series of Capital Securities and
no more than one series of Common Securities, (ii) there shall be no
interests in the Trust other than the Securities, and (iii) the
issuance of Securities shall be limited to a simultaneous issuance of
both Capital Securities and Common Securities at the Closing Time,
b. in connection with the issue and sale of the Capital
Securities and the consummation of the Exchange Offer, at the
direction of the Sponsor, to:
(i) prepare and execute, if necessary, an offering
memorandum (the "Offering Memorandum") prepared by the Sponsor,
in relation to the offering and sale of Series A Capital
Securities to qualified institutional buyers in reliance on Rule
144A under the Securities Act and to institutional "accredited
investors" (as defined in Rule 501(a)(1), (2), (3) or (7) under
the Securities Act) and to execute and file with the Commission,
at such time as determined by the Sponsor, any Registration
Statement, including any amendments thereto, as contemplated by
the Registration Rights Agreement;
(ii) execute and file any documents prepared by the
Sponsor, or take any acts as determined by the Sponsor to be
necessary in order to qualify or register all or part of the
Capital Securities in any State in which the Sponsor has
determined to qualify or register such Capital Securities for
sale;
(iii) at the direction of the Sponsor, execute and file
an application, prepared by the Sponsor, to the New York Stock
Exchange or any other national stock exchange or the Nasdaq Stock
Market's National Market for listing or inclusion of the Capital
Securities;
(iv) execute and deliver letters, documents, or
instruments with DTC and other Clearing Agencies relating to the
Capital Securities;
(v) if required, execute and file with the Commission
a registration statement on Form 8-A, including any amendments
thereto, prepared by the Sponsor, relating to the registration of
the Capital Securities under Section 12(b) or 12(g) of the
Exchange Act, as the case may be; and
(vi) execute and enter into the Purchase Agreement and
the Registration Rights Agreement providing for the sale of the
Capital Securities and take any and all actions necessary,
advisable or appropriate to satisfy the Trust's obligations
thereunder.
c. to acquire the Series A Debentures with the proceeds of
the sale of the Series A Capital Securities and the Common Securities
pursuant to the Debenture Subscription Agreement between the Trust and
the Sponsor, dated as of the Closing Time, and to exchange, or to
direct the Property Trustee in writing to exchange, the Series A
Debentures for a like principal amount of Series B Debentures,
pursuant to the Exchange Offer; provided, however, that the
Administrative Trustees shall cause legal title to the Debentures to
be held of record in the name of the Property Trustee for the benefit
of the Holders of the Capital Securities and the Holders of Common
Securities;
d. to give the Sponsor and the Property Trustee prompt
written notice of the occurrence of a Special Event;
e. to establish a record date with respect to all actions
to be taken hereunder that require a record date be established,
including and with respect to, for the purposes of Section 316(c)
of the Trust Indenture Act, Distributions, voting rights, redemptions
and exchanges, and to issue relevant notices to the Holders of Capital
Securities and Holders of Common Securities as to such actions and
applicable record dates;
f. to take all actions and perform such duties as may be
required of the Administrative Trustees pursuant to the terms of the
Securities;
g. to bring or defend, pay, collect, compromise,
arbitrate, resort to legal action, or otherwise adjust claims or
demands of or against the Trust ("Legal Action"), unless pursuant to
Section 3.8(e), the Property Trustee has the exclusive power to bring
such Legal Action;
h. to employ or otherwise engage employees and agents (who
may be designated as officers with titles) and managers, contractors,
advisors, and consultants and pay reasonable compensation for such
services;
i. to cause the Trust to comply with the Trust's
obligations under the Trust Indenture Act;
j. to give the certificate required by Section 314(a)(4)
of the Trust Indenture Act to the Property Trustee, which certificate
may be executed by any Administrative Trustee;
k. to incur expenses that are necessary or incidental to
carry out any of the purposes of the Trust;
l. to act as, or appoint another Person to act as,
Registrar and Exchange Agent for the Securities or to appoint a Paying
Agent for the Securities as provided in Section 7.4 except for such
time as such power to appoint a Paying Agent is vested in the Property
Trustee;
m. to give prompt written notice to the Property Trustee
and to Holders of the Securities of any notice received from the
Debenture Issuer of its election to defer payments of interest on the
Debentures by extending the interest payment period under the
Indenture;
n. to execute all documents or instruments, perform all
duties and powers, and do all things for and on behalf of the Trust in
all matters necessary or incidental to the foregoing;
o. to take all action that may be necessary or appropriate
for the preservation and the continuation of the Trust's valid
existence, rights, franchises and privileges as a statutory business
trust under the laws of the State of Delaware and of each other
jurisdiction in which such existence is necessary to protect the
limited liability of the Holders of the Capital Securities or to
enable the Trust to effect the purposes for which the Trust was
created;
p. to take any action, not inconsistent with this
Declaration or with applicable law, that the Administrative Trustees
determine in their discretion to be necessary, advisable or incidental
to carrying out the activities of the Trust as set out in this Section
3.6, including, but not limited to:
(i) causing the Trust not to be deemed to be an
Investment Company required to be registered under the Investment
Company Act;
(ii) causing the Trust to be classified for United
States federal income tax purposes as a grantor trust; and
(iii) cooperating with the Debenture Issuer to ensure
that the Debentures will be treated as indebtedness of the
Debenture Issuer for United States federal income tax purposes;
q. to take all action necessary to consummate the Exchange
Offer or otherwise cause the Capital Securities to be registered
pursuant to an effective registration statement in accordance with the
provisions of the Registration Rights Agreement; and
r. to take all action necessary to cause all applicable
tax returns and tax information reports that are required to be filed
with respect to the Trust to be duly prepared and filed by the
Administrative Trustees, on behalf of the Trust.
The Administrative Trustees must exercise the powers set
forth in this Section 3.6 in a manner that is consistent with the
purposes and functions of the Trust set out in Section 3.3, and the
Administrative Trustees shall not take any action that is inconsistent
with the purposes and functions of the Trust set forth in Section 3.3.
Subject to this Section 3.6, the Administrative Trustees
shall have none of the powers or the authority of the Property Trustee
set forth in Section 3.8.
Any expenses incurred by the Administrative Trustees
pursuant to this Section 3.6 shall be reimbursed by the Debenture
Issuer.
SECTION 3.7 Prohibition of Actions by the Trust and the Trustees.
The Trust shall not, and the Trustees (including the
Property Trustee) shall not, engage in any activity other than as
required or authorized by this Declaration. The Trust shall not:
a. invest any proceeds received by the Trust from holding
the Debentures, but shall distribute all such proceeds to Holders of
Securities pursuant to the terms of this Declaration and of the
Securities;
b. acquire any assets other than as expressly provided
herein:
c. possess Trust property for other than a Trust purpose;
d. make any loans or incur any indebtedness other than
loans represented by the Debentures;
e. possess any power or otherwise act in such a way as to
vary the Trust assets or the terms of the Securities in any way
whatsoever;
f. issue any securities or other evidences of beneficial
ownership of, or beneficial interest in, the Trust other than the
Securities; or
g. other than as provided in this Declaration or Annex I
to this Declaration, (i) direct the time, method and place of
conducting any proceeding with respect to any remedy available to the
Debenture Trustee, or exercising any trust or power conferred upon the
Debenture Trustee with respect to the Debentures, (ii) waive any past
default that is waivable under the Indenture, (iii) exercise any right
to rescind or annul any 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 unless the Trust shall have received an
opinion of Howard & Howard Attorneys, P.C. or another nationally
recognized independent tax counsel experienced in such matters to the
effect that such amendment, modification or termination will not cause
more than an insubstantial risk that for United States federal income
tax purposes the Trust will not be classified as a grantor trust.
SECTION 3.8 Powers and Duties of the Property Trustee.
a. The legal title to the Debentures shall be owned by and
held of record in the name of the Property Trustee in trust for the
benefit of the Holders of the Securities. The right, title and
interest of the Property Trustee to the Debentures shall vest
automatically in each Person who may hereafter be appointed as
Property Trustee in accordance with Section 5.6. Such vesting and
cessation of title shall be effective whether or not conveyancing
documents with regard to the Debentures have been executed and
delivered.
b. The Property Trustee shall not transfer its right,
title and interest in the Debentures to the Administrative Trustees or
to the Delaware Trustee (if the Property Trustee does not also act as
Delaware Trustee).
c. The Property Trustee shall:
(i) establish and maintain a segregated non-interest
bearing trust account (the "Property Trustee Account") in the
name of and under the exclusive control of the Property Trustee
on behalf of the Holders of the Securities and, upon the receipt
of payments of funds made in respect of the Debentures held by
the Property Trustee, deposit such funds into the Property
Trustee Account and make payments or cause the Paying Agent to
make payments to the Holders of the Capital Securities and
Holders of the Common Securities from the Property Trustee
Account in accordance with Section 6.1. Funds in the Property
Trustee Account shall be held uninvested until disbursed in
accordance with this Declaration. The Property Trustee Account
shall be an account that is maintained with a banking institution
the rating on whose long-term unsecured indebtedness is at least
equal to the rating assigned to the Capital Securities by a
"nationally recognized statistical rating organization", as that
term is defined for purposes of Rule 436(g)(2) under the
Securities Act;
(ii) engage in such ministerial activities as shall be
necessary or appropriate to effect the redemption of the Capital
Securities and the Common Securities to the extent the Debentures
are redeemed or mature; and
(iii) upon written notice of distribution issued by the
Administrative Trustees in accordance with the terms of the
Securities, engage in such ministerial activities as shall be
necessary or appropriate to effect the distribution of the
Debentures to Holders of Securities upon the occurrence of
certain events.
d. The Property Trustee shall take all actions and perform
such duties as may be specifically required of the Property Trustee
pursuant to the terms of this Declaration and the Securities.
e. Subject to Section 3.9(a), the Property Trustee shall
take any Legal Action which arises out of or in connection with an
Event of Default of which a Responsible Officer of the Property
Trustee has actual knowledge or the Property Trustee's duties and
obligations under this Declaration or the Trust Indenture Act and if
the Property Trustee shall have failed to take such Legal Action, the
Holders of the Capital Securities may take such Legal Action, to the
same extent as if such Holders of Capital Securities held an aggregate
principal amount of Debentures equal to the aggregate liquidation
amount of such Capital Securities, without first proceeding against
the Property Trustee or the Trust; provided however, that if an Event
of Default has occurred and is continuing and such event is
attributable to the failure of the Debenture Issuer to pay the
principal of or premium, if any, or interest on the Debentures on the
date such principal, premium, if any, or interest is otherwise payable
(or in the case of redemption, on the redemption date), then a Holder
of Capital Securities may directly institute a proceeding for
enforcement of payment to such Holder of the principal of or premium,
if any, or interest on the Debentures having a principal amount equal
to the aggregate liquidation amount of the Capital Securities of such
Holder (a "Direct Action") on or after the respective due date
specified in the Debentures. In connection with such Direct Action,
the rights of the Holders of the Common Securities will be subrogated
to the rights of such Holder of Capital Securities to the extent of
any payment made by the Debenture Issuer to such Holder of Capital
Securities in such Direct Action. Except as provided in the preceding
sentences, the Holders of Capital Securities will not be able to
exercise directly any other remedy available to the holders of the
Debentures.
f. The Property Trustee shall not resign as a Trustee
unless either:
(i) the Trust has been completely liquidated and the
proceeds of the liquidation distributed to the Holders of
Securities pursuant to the terms of the Securities; or
(ii) a successor Trustee possessing the qualifications
to act as Property Trustee under Section 5.3 (a "Successor
Property Trustee") has been appointed and has accepted that
appointment in accordance with Section 5.6(b).
g. The Property Trustee shall have the legal power to
exercise all of the rights, powers and privileges of a holder of
Debentures under the Indenture and, if an Event of Default actually
known to a Responsible Officer of the Property Trustee occurs and is
continuing, the Property Trustee shall, for the benefit of Holders of
the Securities, enforce its rights as holder of the Debentures subject
to the rights of the Holders pursuant to the terms of this Declaration
and the Securities.
h. The Property Trustee shall be authorized to undertake
any actions set forth in Section 317(a) of the Trust Indenture Act.
i. For such time as the Property Trustee is the Paying
Agent, the Property Trustee may authorize one or more Persons to act
as additional Paying Agents and to pay Distributions, redemption
payments or liquidation payments on behalf of the Trust with respect
to all Securities and any such Paying Agent shall comply with Section
317(b) of the Trust Indenture Act. Any such additional Paying Agent
may be removed by the Property Trustee at any time the Property
Trustee remains as Paying Agent and a successor Paying Agent or
additional Paying Agents may be (but are not required to be) appointed
at any time by the Property Trustee.
j. Subject to this Section 3.8, the Property Trustee shall
have none of the duties, liabilities, powers or the authority of the
Administrative Trustees set forth in Section 3.6.
The Property Trustee must exercise the powers set forth in
this Section 3.8 in a manner that is consistent with the purposes and
functions of the Trust set out in Section 3.3, and the Property
Trustee shall not take any action that is inconsistent with the
purposes and functions of the Trust set out in Section 3.3.
SECTION 3.9 Certain Duties and Responsibilities of the Property
Trustee.
a. The Property Trustee, before the occurrence of any
Event of Default and after the curing or waiving of all Events of
Default that may have occurred, shall undertake to perform only such
duties as are specifically set forth in this Declaration and in the
Securities and no implied covenants shall be read into this
Declaration against the Property Trustee. In case an Event of Default
has occurred (that has not been cured or waived pursuant to Section
2.6) of which a Responsible Officer of the Property Trustee has actual
knowledge, the Property Trustee shall exercise such of the rights and
powers vested in it by this Declaration, and use the same degree of
care and skill in their exercise, as a prudent person would exercise
or use under the circumstances in the conduct of his or her own
affairs.
b. No provision of this Declaration shall be construed to
relieve the Property Trustee from liability for its own negligent
action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) prior to the occurrence of an Event of Default and
after the curing or waiving of all such Events of Default that
may have occurred:
A. the duties and obligations of the Property Trustee
shall be determined solely by the express provisions of this
Declaration and in the Securities and the Property Trustee
shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this
Declaration and in the Securities, and no implied covenants
or obligations shall be read into this Declaration against
the Property Trustee; and
B. in the absence of bad faith on the part of the
Property Trustee, the Property Trustee may conclusively
rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon any certificates or
opinions furnished to the Property Trustee and conforming to
the requirements of this Declaration; provided, however,
that in the case of any such certificates or opinions that
by any provision hereof are specifically required to be
furnished to the Property Trustee, the Property Trustee
shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this
Declaration;
(ii) the Property Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer of
the Property Trustee, unless it shall be proved that the Property
Trustee was negligent in ascertaining the pertinent facts;
(iii) the Property Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good
faith in accordance with the direction of the Holders of not less
than a Majority in liquidation amount of the Securities relating
to the time, method and place of conducting any proceeding for
any remedy available to the Property Trustee, or exercising any
trust or power conferred upon the Property Trustee under this
Declaration;
(iv) no provision of this Declaration shall require the
Property Trustee to expend or risk its own funds or otherwise
incur personal financial liability in the performance of any of
its duties or in the exercise of any of its rights or powers, if
it shall have reasonable grounds for believing that the repayment
of such funds or liability is not reasonably assured to it under
the terms of this Declaration or indemnity reasonably
satisfactory to the Property Trustee against such risk or
liability is not reasonably assured to it;
(v) the Property Trustee's sole duty with respect to
the custody, safe keeping and physical preservation of the
Debentures and the Property Trustee Account shall be to deal with
such property in a similar manner as the Property Trustee deals
with similar property for its own account, subject to the
protections and limitations on liability afforded to the Property
Trustee under this Declaration and the Trust Indenture Act;
(vi) the Property Trustee shall have no duty or
liability for or with respect to the value, genuineness,
existence or sufficiency of the Debentures or the payment of any
taxes or assessments levied thereon or in connection therewith;
(vii) the Property Trustee shall not be liable for any
interest on any money received by it except as it may otherwise
agree in writing with the Sponsor. Money held by the Property
Trustee need not be segregated from other funds held by it except
in relation to the Property Trustee Account maintained by the
Property Trustee pursuant to Section 3.8(c)(i) and except to the
extent otherwise required by law; and
(viii) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrative Trustees or the
Sponsor with their respective duties under this Declaration, nor
shall the Property Trustee be liable for any default or
misconduct of the Administrative Trustees or the Sponsor.
SECTION 3.10 Certain Rights of Property Trustee.
a. Subject to the provisions of Section 3.9:
(i) the Property Trustee may conclusively rely and
shall be fully protected in acting or refraining from acting upon
any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed,
sent or presented by the proper party or parties;
(ii) any direction or act of the Sponsor or the
Administrative Trustees contemplated by this Declaration may be
sufficiently evidenced by an Officers' Certificate;
(iii) whenever in the administration of this
Declaration, the Property Trustee shall deem it desirable that a
matter be proved or established before taking, suffering or
omitting any action hereunder, the Property Trustee (unless other
evidence is herein specifically prescribed) may, in the absence
of bad faith on its part, request and conclusively rely upon an
Officers' Certificate which, upon receipt of such request, shall
be promptly delivered by the Sponsor or the Administrative
Trustees;
(iv) the Property Trustee shall have no duty to see to
any recording, filing or registration of any instrument
(including any financing or continuation statement or any filing
under tax or securities laws) or any rerecording, refiling or
registration thereof;
(v) the Property Trustee may consult with counsel or
other experts of its selection and the advice or opinion of such
counsel and experts with respect to legal matters or advice
within the scope of such experts' area of expertise shall be full
and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith
and in accordance with such advice or opinion, such counsel may
be counsel to the Sponsor or any of its Affiliates, and may
include any of its employees, and the Property Trustee shall have
the right at any time to seek instructions concerning the
administration of this Declaration from any court of competent
jurisdiction;
(vi) the Property Trustee shall be under no obligation
to exercise any of the rights or powers vested in it by this
Declaration at the request or direction of any Holder, unless
such Holder shall have provided to the Property Trustee security
and indemnity, reasonably satisfactory to the Property Trustee,
against the costs, expenses (including reasonable attorneys' fees
and expenses and the expenses of the Property Trustee's agents,
nominees or custodians) and liabilities that might be incurred by
it in complying with such request or direction, including such
reasonable advances as may be requested by the Property Trustee;
provided that, nothing contained in this Section 3.10(a)(vi)
shall be taken to relieve the Property Trustee, upon the
occurrence of an Event of Default, of its obligation to exercise
the rights and powers vested in it by this Declaration;
(vii) the Property Trustee shall not be bound to make
any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document,
but the Property Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it
may see fit;
(viii) the Property Trustee may execute any of the trusts
or powers hereunder or perform any duties hereunder either
directly or by or through agents, custodians, nominees or
attorneys and the Property Trustee shall not be responsible for
any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder;
(ix) any action taken by the Property Trustee or its
agents hereunder shall bind the Trust and the Holders of the
Securities, and the signature of the Property Trustee or its
agents alone shall be sufficient and effective to perform any
such action and no third party shall be required to inquire as to
the authority of the Property Trustee to so act or as to its
compliance with any of the terms and provisions of this
Declaration, both of which shall be conclusively evidenced by the
Property Trustee's or its agent's taking such action;
(x) whenever in the administration of this Declaration
the Property Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right or
taking any other action hereunder, the Property Trustee (i) may
request instructions from the Holders of the Securities which
instructions may only be given by the Holders of the same
proportion in liquidation amount of the Securities as would be
entitled to direct the Property Trustee under the terms of the
Securities in respect of such remedy, right or action, (ii) may
refrain from enforcing such remedy or right or taking such other
action until such instructions are received and (iii) shall be
protected in conclusively relying on or acting in or accordance
with such instructions;
(xi) except as otherwise expressly provided by this
Declaration, the Property Trustee shall not be under any
obligation to take any action that is discretionary under the
provisions of this Declaration; and
(xii) the Property Trustee shall not be liable for any
action taken, suffered, or omitted to be taken by it in good
faith, without negligence or willful misconduct, and reasonably
believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Declaration.
b. No provision of this Declaration 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 3.11 Delaware Trustee.
Notwithstanding any other provision of this Declaration
other than Section 5.2, the Delaware Trustee shall not be entitled to
exercise any powers, nor shall the Delaware Trustee have any of the
duties and responsibilities of the Administrative Trustees or the
Property Trustee described in this Declaration. Except as set forth
in Section 5.2, the Delaware Trustee shall be a Trustee for the sole
and limited purpose of fulfilling the requirements of Section 3807 of
the Business Trust Act and taking such actions contemplated thereby.
SECTION 3.12 Execution of Documents.
Unless otherwise determined by the Administrative Trustees,
and except as otherwise required by the Business Trust Act, any
Administrative Trustee is authorized to execute on behalf of the Trust
any documents that the Administrative Trustees have the power and
authority to execute pursuant to Section 3.6; provided that, the
Registration Statement referred to in Section 3.6(b)(i), including any
amendments thereto, shall be signed by all of the Administrative
Trustees.
SECTION 3.13 Not Responsible for Recitals or Issuance of Securities.
The recitals contained in this Declaration and the
Securities shall be taken as the statements of the Sponsor, and the
Trustees do not assume any responsibility for their correctness. The
Trustees make no representations as to the value or condition of the
property of the Trust or any part thereof. The Trustees make no
representations as to the validity or sufficiency of this Declaration
or the Securities.
SECTION 3.14 Duration of Trust.
The Trust, unless terminated pursuant to the provisions of
Article VIII hereof, shall have existence up to January 31, 2028.
SECTION 3.15 Mergers.
a. The Trust may not merge or convert with or into,
consolidate, amalgamate, or be replaced by, or convey, transfer or
lease its properties and assets substantially as an entirety to any
Person, except as described in Section 3.15(b) and (c).
b. The Trust may, at the request of the Sponsor, with the
consent of the Administrative Trustees or, if there are more than two,
a majority of the Administrative Trustees and without the consent of
the Holders of the Securities, the Delaware Trustee or the Property
Trustee, merge or convert with or into, consolidate, amalgamate or be
replaced by, or convey, transfer or lease its properties and assets as
an entirety or substantially as an entirety to, a trust organized as
such under the laws of any State; provided that:
(i) such successor entity (the "Successor Entity")
either:
A. expressly assumes all of the obligations of the
Trust under the Securities; or
B. substitutes for the Securities other securities
having substantially the same terms as the Securities (the
"Successor Securities") so long as the Successor Securities
rank the same as the Securities rank with respect to
Distributions and payments upon liquidation, redemption and
otherwise;
(ii) the Sponsor expressly appoints a trustee of the
Successor Entity that possesses the same powers and duties as the
Property Trustee as the holder of the Debentures;
(iii) the Successor Securities are listed or included
for trading, or any Successor Securities will be listed or
included for trading upon notification of issuance, on any
national securities exchange or with another organization on
which the Capital Securities are then listed or included;
(iv) such merger, conversion, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not
cause the Capital Securities (including any Successor Securities)
to be downgraded by any nationally recognized statistical rating
organization;
(v) such merger, conversion, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and privileges of the
Holders of the Securities (including any Successor Securities) in
any material respect (other than with respect to any dilution of
such Holders' interests in the new entity);
(vi) such Successor Entity has a purpose identical to
that of the Trust;
(vii) prior to such merger, conversion, consolidation,
amalgamation, replacement, conveyance, transfer or lease, the
Sponsor has received an opinion of Howard & Howard Attorneys,
P.C. or another independent counsel to the Trust experienced in
such matters to the effect that:
A. such merger, conversion, consolidation,
amalgamation, replacement, conveyance, transfer or lease
does not adversely affect the rights, preferences and
privileges of the Holders of the Securities (including any
Successor Securities) in any material respect (other than
with respect to any dilution of the Holders' interest in the
new entity);
B. following such merger, conversion, consolidation,
amalgamation, replacement, conveyance, transfer or lease,
neither the Trust nor the Successor Entity will be required
to register as an Investment Company; and
C. following such merger, conversion, consolidation,
amalgamation, replacement, conveyance, transfer or lease,
the Trust (or the Successor Entity) will continue to be
classified as a grantor trust for United States federal
income tax purposes; and
(viii) the Sponsor or any permitted successor or assignee
owns all of the common securities of such Successor Entity and
guarantees the obligations of such Successor Entity under the
Successor Securities at least to the extent provided by the
Capital Securities Guarantee and the Common Securities Guarantee.
c. Notwithstanding Section 3.15(b), the Trust shall not,
except with the consent of Holders of 100% in liquidation amount of
the Securities, consolidate, amalgamate, merge or convert with or
into, or be replaced by, or convey, transfer or lease its properties
and assets as an entirety or substantially as an entirety to, any
other Person or permit any other Person to consolidate, amalgamate,
merge or convert with or into, or replace it if such consolidation,
amalgamation, merger, conversion, replacement, conveyance, transfer or
lease would cause the Trust or the Successor Entity not to be
classified as a grantor trust for United States federal income tax
purposes.
ARTICLE IV.
SPONSOR
SECTION 4.1 Sponsor's Purchase of Common Securities.
At the Closing Time, pursuant to the Common Securities
Subscription Agreement, the Sponsor will purchase all of the Common
Securities then issued by the Trust, in an amount at least equal to 3%
of the capital of the Trust, at the same time as the Series A Capital
Securities are issued and sold.
SECTION 4.2 Responsibilities of the Sponsor.
In connection with the issue and sale of the Capital
Securities, the Sponsor shall have the exclusive right and
responsibility to engage in the following activities:
a. to prepare the Offering Memorandum and to prepare for
filing by the Trust with the Commission any Registration Statement,
including any amendments thereto as contemplated by the Registration
Rights Agreement;
b. to determine the States in which to take appropriate
action to qualify or register for sale all or part of the Capital
Securities and to do any and all such acts, other than actions which
must be taken by the Trust, and advise the Trust of actions it must
take, and prepare for execution and filing any documents to be
executed and filed by the Trust, as the Sponsor deems necessary or
advisable in order to comply with the applicable laws of any such
States;
c. if deemed necessary or advisable by the Sponsor, to
prepare for filing by the Trust an application to the New York Stock
Exchange or any other national stock exchange or the Nasdaq National
Market for listing or inclusion of the Capital Securities:
d. if deemed necessary or advisable by the Sponsor, to
prepare for filing by the Trust with the Commission a registration
statement on Form 8-A relating to the registration of the Capital
Securities under Section 12(b) or 12(g) of the Exchange Act, as the
case may be, including any amendments thereto; and
e. to negotiate the terms of the Purchase Agreement and
the Registration Rights Agreement providing for the sale of the
Capital Securities.
SECTION 4.3 Right to Proceed.
The Sponsor acknowledges the rights of the Holders of
Capital Securities, in the event that a failure of the Trust to pay
Distributions on the Capital Securities is attributable to the failure
of the Company to pay interest or principal on the Debentures, to
institute a proceeding directly against the Debenture Issuer for
enforcement of its payment obligations on the Debentures.
ARTICLE V.
TRUSTEES
SECTION 5.1 Number of Trustees: Appointment of Co-Trustee.
The number of Trustees initially shall be five (5), and:
a. at any time before the issuance of any Securities, the
Sponsor may, by written instrument, increase or decrease the number of
Trustees; and
b. after the issuance of any Securities, the number of
Trustees may be increased or decreased by vote of the Holders of a
Majority in liquidation amount of the Common Securities voting as a
class at a meeting of the Holders of the Common Securities; provided,
however, that, the number of Trustees shall in no event be less than
two (2); provided further that (1) one Trustee shall be the Delaware
Trustee; (2) there shall be at least one Trustee who is an employee or
officer of, or is affiliated with, the Sponsor (an "Administrative
Trustee"); and (3) one Trustee shall be the Property Trustee for so
long as this Declaration is required to qualify as an indenture under
the Trust Indenture Act, and such Trustee may also serve as Delaware
Trustee if it meets the applicable requirements. Notwithstanding the
above, unless an Event of Default shall have occurred and be
continuing, at any time or times, for the purpose of meeting the legal
requirements of the Trust Indenture Act or of any jurisdiction in
which any part of the Trust's property may at the time be located, the
Holders of a Majority in liquidation amount of the Common Securities
acting as a class at a meeting of the Holders of the Common
Securities, and the Administrative Trustees shall have power to
appoint one or more Persons either to act as a co-trustee, jointly
with the Property Trustee, of all or any part of the Trust's property,
or 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 such capacity any property,
title, right or power deemed necessary or desirable, subject to the
provisions of this Declaration. In case an Event of Default has
occurred and is continuing, the Property Trustee alone shall have
power to make any such appointment of a co-trustee.
SECTION 5.2 Delaware Trustee.
For so long as required by the Business Trust Act, one
Trustee (the "Delaware Trustee") shall be:
a. a natural person who is a resident of the State of
Delaware; or
b. if not a natural person, an entity which has its
principal place of business in the State of Delaware, and otherwise
meets the requirements of applicable law,
provided that, if the Property Trustee has its principal place of
business in the State of Delaware and otherwise meets the requirements
of applicable law, then the Property Trustee shall also be the
Delaware Trustee and Section 3.11 shall have no application. The
initial Delaware Trustee shall be:
The Bank of New York (Delaware)
White Clay Center
Route 273
Newark, Delaware 19711
SECTION 5.3 Property Trustee: Eligibility.
a. There shall at all times be one Trustee (the "Property
Trustee") which shall act as Property Trustee which shall:
(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation organized and doing business
under the laws of the United States of America or any State or
Territory thereof or of the District of Columbia, or a
corporation or other Person permitted by the Commission to act as
an institutional trustee under the Trust Indenture Act,
authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least 50 million U.S.
dollars ($50,000,000), and subject to supervision or examination
by Federal, State, Territorial or District of Columbia authority.
If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the
supervising or examining authority referred to above, then for
the purposes of this Section 5.3(a)(ii), the combined capital and
surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of
condition so published.
b. If at any time the Property Trustee shall cease to be
eligible to so act under Section 5.3(a), the Property Trustee shall
immediately resign in the manner and with the effect set forth in
Section 5.6(c).
c. If the Property Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the
Trust Indenture Act, the Property Trustee and the Holder of the Common
Securities (as if it were the obligor referred to in Section 310(b) of
the Trust Indenture Act) shall in all respects comply with the
provisions of Section 310(b) of the Trust Indenture Act.
d. The Capital Securities Guarantee shall be deemed to be
specifically described in this Declaration for purposes of clause (i)
of the proviso contained in paragraph (1) of Section 310(b) of the
Trust Indenture Act.
e. The initial Property Trustee shall be:
The Bank of New York
101 Barclay Street, 21 West
New York, New York 10286
Attention: Corporate Trust Trustee Administration
SECTION 5.4 Certain Qualifications of Administrative Trustees and
Delaware Trustee Generally.
Each Administrative Trustee and the Delaware Trustee (unless
the Property Trustee also acts as Delaware Trustee) shall be either a
natural person who is at least 21 years of age or a legal entity that
shall act through one or more Authorized Officers.
SECTION 5.5 Administrative Trustees.
(a) The Administrative Trustees shall be:
Thomas W. Lambert
Samuel G. Stone
John H. Miner
(b) Except as expressly set forth in this Declaration and
except if a meeting of the Administrative Trustees is called with
respect to any matter over which the Administrative Trustees have
power to act, any power of the Administrative Trustees may be
exercised by, or with the consent of, any one such Administrative
Trustee.
(c) Unless otherwise determined by the Administrative
Trustees, and except as otherwise required by the Business Trust Act
or applicable law, any Administrative Trustee is authorized to execute
on behalf of the Trust any documents which the Administrative Trustees
have the power and authority to cause the Trust to execute pursuant to
Section 3.6; provided that, the Registration Statement referred to in
Section 3.6, including any amendments thereto, shall be signed by all
of the Administrative Trustees; and
(d) An Administrative Trustee may, by power of attorney
consistent with applicable law, delegate to any other natural person
over the age of 21 his or her power for the purposes of signing any
documents which the Administrative Trustees have power and authority
to cause the Trust to execute pursuant to Section 3.6.
SECTION 5.5 Appointment, Removal and Resignation of Trustees.
a. Subject to Section 5.6(b), Trustees may be appointed or
removed without cause at any time:
(i) until the issuance of any Securities, by written
instrument executed by the Sponsor;
(ii) unless an Event of Default shall have occurred and
be continuing after the issuance of any Securities, by vote of
the Holders of a Majority in liquidation amount of the Common
Securities voting as a class at a meeting of the Holders of the
Common Securities; and
(iii) if an Event of Default shall have occurred and be
continuing after the issuance of the Securities, with respect to
the Property Trustee or the Delaware Trustee, by vote of Holders
of a Majority in liquidation amount of the Capital Securities
voting as a class at a meeting of Holders of the Capital
Securities.
b. (i) The Trustee that acts as Property Trustee shall
not be removed in accordance with Section 5.6(a) until a Successor
Property Trustee has been appointed and has accepted such appointment
by written instrument executed by such Successor Property Trustee and
delivered to the removed Property Trustee, the Administrative Trustees
and the Sponsor; and
(ii) the Trustee that acts as Delaware Trustee shall
not be removed in accordance with this Section 5.6(a) until a
successor Trustee possessing the qualifications to act as
Delaware Trustee under Sections 5.2 and 5.4 (a "Successor
Delaware Trustee") has been appointed and has accepted such
appointment by written instrument executed by such Successor
Delaware Trustee and delivered to the removed Delaware Trustee,
the Administrative Trustees and the Sponsor.
c. A Trustee appointed to office shall hold office until
his successor shall have been appointed or until his death, removal or
resignation. Any Trustee may resign from office (without need for
prior or subsequent accounting) by an instrument in writing signed by
the Trustee and delivered to the Sponsor and the Trust, which
resignation shall take effect upon such delivery or upon such later
date as is specified therein; provided, however, that:
(i) No such resignation of the Trustee that acts as
the Property Trustee shall be effective:
A. until a Successor Property Trustee has been
appointed and has accepted such appointment by instrument
executed by such Successor Property Trustee and delivered to
the Trust, the Sponsor and the resigning Property Trustee;
or
B. until the assets of the Trust have been completely
liquidated and the proceeds thereof distributed to the
holders of the Securities; and
(ii) no such resignation of the Trustee that acts
as the Delaware Trustee shall be effective until a Successor
Delaware Trustee has been appointed and has accepted such
appointment by instrument executed by such Successor Delaware
Trustee and delivered to the Trust, the Sponsor and the resigning
Delaware Trustee.
d. The Holders of the Common Securities shall use their
best efforts to promptly appoint a Successor Delaware Trustee or
Successor Property Trustee, as the case may be, if the Property
Trustee or the Delaware Trustee delivers an instrument of resignation
in accordance with this Section 5.6.
e. If no Successor Property Trustee or Successor Delaware
Trustee shall have been appointed and accepted appointment as provided
in this Section 5.6 within 60 days after delivery of an instrument of
resignation or removal, the Property Trustee or Delaware Trustee
resigning or being removed, as applicable, may petition any court of
competent jurisdiction for appointment of a Successor Property Trustee
or Successor Delaware Trustee. Such court may thereupon, after
prescribing such notice, if any, as it may deem proper and prescribe,
appoint a Successor Property Trustee or Successor Delaware Trustee, as
the case may be.
f. No Property Trustee or Delaware Trustee shall be liable
for the acts or omissions to act of any Successor Property Trustee or
successor Delaware Trustee, as the case may be.
SECTION 5.7 Vacancies among Trustees.
If a Trustee ceases to hold office for any reason and the
number of Trustees is not reduced pursuant to Section 5.1, or if the
number of Trustees is increased pursuant to Section 5.1, a vacancy
shall occur. A resolution certifying the existence of such vacancy by
the Administrative Trustees or, if there are more than two, a majority
of the Administrative Trustees shall be conclusive evidence of the
existence of such vacancy. The vacancy shall be filled with a Trustee
appointed in accordance with Section 5.6.
SECTION 5.8 Effect of Vacancies.
The death, resignation, retirement, removal, bankruptcy,
dissolution, liquidation, incompetence or incapacity to perform the
duties of a Trustee shall not operate to annul 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 5.6, the Administrative Trustees in office,
regardless of their number, shall have all the powers granted to the
Administrative Trustees and shall discharge all the duties imposed
upon the Administrative Trustees by this Declaration.
SECTION 5.9 Meetings.
If there is more than one Administrative Trustee, meetings
of the Administrative Trustees shall be held from time to time upon
the call of any Administrative Trustee. Regular meetings of the
Administrative Trustees may be held at a time and place fixed by
resolution of the Administrative Trustees. Notice of any in-person
meetings of the Administrative Trustees shall be hand delivered or
otherwise delivered in writing (including by facsimile, with a hard
copy by overnight courier) not less than 24 hours before such meeting.
Notice of any telephonic meetings of the Administrative Trustees or
any committee thereof shall be hand delivered or otherwise delivered
in writing (including by facsimile, with a hard copy by overnight
courier) not less than 24 hours before a meeting. Notices shall
contain a brief statement of the time, place and anticipated purposes
of the meeting. The presence (whether in person or by telephone) of an
Administrative Trustee at a meeting shall constitute a waiver of
notice of such meeting except where an Administrative Trustee attends
a meeting for the express purpose of objecting to the transaction of
any activity on the ground that the meeting has not been lawfully
called or convened. Unless provided otherwise in this Declaration, any
action of the Administrative Trustees may be taken at a meeting by
vote of a majority of the Administrative Trustees present (whether in
person or by telephone) and eligible to vote with respect to such
matter, provided that a Quorum is present, or without a meeting by the
unanimous written consent of the Administrative Trustees. In the event
there is only one Administrative Trustee, any and all action of such
Administrative Trustee shall be evidenced by a written consent of such
Administrative Trustee.
SECTION 5.10 Delegation of Power.
a. Any Administrative Trustee may, by power of attorney,
to the extent permitted by 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 3.6, including any
registration statement or amendment thereto filed with the Commission,
or making any other governmental filing; and
b. the Administrative Trustees shall have power to
delegate from time to time to such of their number or to officers of
the Trust the doing of such things and the execution of such
instruments either in the name of the Trust or the names of the
Administrative Trustees or otherwise as the Administrative Trustees
may deem expedient, to the extent such delegation is not prohibited by
applicable law or contrary to the provisions of the Trust, as set
forth herein.
Section 5.11 Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Property Trustee or the
Delaware Trustee or any Administrative Trustee that is not a natural
person, as the case may be, may be merged or converted or with which
it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Property Trustee or the
Delaware Trustee, as the case may be, shall be a party, or any
corporation succeeding to all or substantially all the corporate trust
business of the Property Trustee or the Delaware Trustee, as the case
may be, shall be the successor of the Property Trustee or the Delaware
Trustee, as the case may be, hereunder, provided such corporation
shall be otherwise qualified and eligible under this Article V,
without the execution or filing of any paper or any further act on the
part of any of the parties hereto.
ARTICLE VI.
DISTRIBUTIONS
SECTION 6.1 Distributions
Holders shall receive Distributions in accordance with the
applicable terms of the relevant Holder's Securities. If and to the
extent that the Debenture Issuer makes a payment of interest
(including Compounded Interest (as defined in the Indenture) and
Additional Interest (as defined in the Indenture)), premium and/or
principal on the Debentures held by the Property Trustee or Liquidated
Damages (as defined in the Registration Rights Agreement) or any other
payments pursuant to the Registration Rights Agreement with respect to
the Debentures held by the Property Trustee (the amount of any such
payment being a "Payment Amount"), the Property Trustee shall and is
directed, to the extent funds are available for that purpose, to make
a distribution (a "Distribution") of the Payment Amount to Holders of
Securities in accordance with the terms thereof.
ARTICLE VII.
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities.
a. The Administrative Trustees shall on behalf of the
Trust issue one class of capital securities representing undivided
beneficial interests in the assets of the Trust having such terms as
are set forth in Annex I (the "Series A Capital Securities") and one
class of common securities representing undivided beneficial interests
in the assets of the Trust having such terms as are set forth in Annex
I (the "Common Securities"), which is incorporated in and expressly
made a part of this Declaration. The Administrative Trustees shall on
behalf of the Trust issue one class of capital securities representing
undivided beneficial interests in the Trust having such terms as set
forth in Annex I (the "Series B Capital Securities") in exchange for
Series A Capital Securities accepted for exchange in the Exchange
Offer, which Series B Capital Securities shall not bear the legends
required by Section 9.2(i) unless the Holder of such Series A Capital
Securities is either (A) a broker-dealer who purchased such Series A
Capital Securities directly from the Trust for resale pursuant to Rule
144A or any other available exemption under the Securities Act, (B) a
Person participating in the distribution of the Series A Capital
Securities or (C) a Person who is an Affiliate of the Trust. The Trust
shall issue no securities or other interests in the assets of the
Trust other than the Capital Securities and the Common Securities.
b. The consideration received by the Trust for the
issuance of the Securities shall constitute a contribution to the
capital of the Trust and shall not constitute a loan to the Trust.
c. Upon issuance of the Securities as provided in this
Declaration, the Securities so issued shall be deemed to be validly
issued, fully paid and non-assessable.
d. Every Person, by virtue of having become a Holder or a
Capital Security Beneficial Owner in accordance with the terms of this
Declaration, shall be deemed to have expressly assented and agreed to
the terms of, and shall be bound by, this Declaration.
SECTION 7.2 Execution and Authentication.
a. The Securities shall be signed on behalf of the Trust
by an Administrative Trustee. In case any Administrative Trustee of
the Trust who shall have signed any of the Securities shall cease to
be such Administrative Trustee before the Securities so signed shall
be delivered by the Trust, such Securities nevertheless may be
delivered as though the Person who signed such Securities had not
ceased to be such Administrative Trustee; and any Securities may be
signed on behalf of the Trust by such persons who, at the actual date
of execution of such Security, shall be the Administrative Trustees of
the Trust, although at the date of the execution and delivery of the
Declaration any such person was not such a Administrative Trustee.
b. One Administrative Trustee shall sign the Capital
Securities for the Trust by manual or facsimile signature. Unless
otherwise determined by the Trust, one Administrative Trustee shall
sign the Common Securities for the Trust by manual signature.
A Capital Security 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 Capital
Security has been authenticated under this Declaration. A Common
Security shall be valid upon execution by an Administrative Trustee
without any act of the Property Trustee.
Upon a written order of the Trust signed by one
Administrative Trustee, the Property Trustee shall authenticate the
Capital Securities for original issue. The aggregate number of Capital
Securities outstanding at any time shall not exceed the number set
forth in Annex I hereto except as provided in Section 7.6.
The Property Trustee may appoint an authenticating agent
acceptable to the Trust to authenticate Capital Securities. An
authenticating agent may authenticate Capital Securities whenever the
Property Trustee may do so. Each reference in this Declaration to
authentication by the Property Trustee includes authentication by such
agent. An authenticating agent has the same rights as the Property
Trustee to deal with the Sponsor or an Affiliate.
SECTION 7.3 Form and Dating.
a. The Capital Securities and the Property Trustee's
certificate of authentication shall be substantially in the form of
Exhibit A-1 and the Common Securities shall be substantially in the
form of Exhibit A-2, each of which is hereby incorporated in and
expressly made a part of this Declaration. Certificates representing
the Securities may be printed, lithographed or engraved or may be
produced in any other manner as is reasonably acceptable to the Trust,
as evidenced by the execution thereof by one or more Administrative
Trustees. The Securities may have letters, "CUSIP" or other numbers,
notations or other marks of identification or designation and such
legends or endorsements required by law, stock exchange rule,
agreements to which the Trust is subject, if any, or usage (provided
that any such notation, legend or endorsement is in a form acceptable
to the one or more Administrative Trustees, as evidenced by their
execution thereof). The Trust at the direction of the Sponsor shall
furnish any such legend not contained in Exhibit A-1 to the Property
Trustee in writing. Each Capital Security shall be dated the date of
its authentication. The terms and provisions of the Securities set
forth in Annex I and the forms of Securities set forth in Exhibits A-1
and A-2 are part of the terms of this Declaration and to the extent
applicable, the Property Trustee and the Sponsor, by their execution
and delivery of this Declaration, expressly agree to such terms and
provisions and to be bound thereby.
b. Global Securities. Securities offered and sold to QIBs
in reliance on Rule 144A, as provided in the Purchase Agreement, shall
be issued in the form of a single permanent global Capital Security in
definitive, fully registered form without Distribution coupons with
the appropriate global legends and Restricted Securities Legend set
forth in Exhibit A-1 hereto (the "Global Capital Security"), which
shall be deposited on behalf of the purchasers of the Capital
Securities represented thereby with the Property Trustee, as custodian
for the Clearing Agency, and registered in the name of the Clearing
Agency or a nominee of the Clearing Agency, duly executed by the Trust
and authenticated by the Property Trustee as hereinafter provided. The
number of Capital Securities represented by the Global Capital
Security may from time to time be increased or decreased by
adjustments made on the records of the Property Trustee and the
Clearing Agency or its nominee as hereinafter provided.
c. Book-Entry Provisions. This Section 7.3(c) shall apply
only to the Global Capital Security and such other Capital Securities
in global form as may be authorized by the Trust to be deposited with
or on behalf of the Clearing Agency.
An Administrative Trustee shall execute and the Property
Trustee shall, in accordance with this Section 7.3, authenticate and
make available for delivery initially a single Global Capital Security
that (i) shall be registered in the name of Cede & Co. or other
nominee of such Clearing Agency and (ii) shall be delivered by the
Trustee to such Clearing Agency or pursuant to such Clearing Agency's
written instructions or held by the Property Trustee as custodian for
the Clearing Agency.
Members of, or participants in, the Clearing Agency
("Participants") shall have no rights under this Declaration with
respect to the Global Capital Security held on their behalf by the
Clearing Agency or by the Property Trustee as the custodian of the
Clearing Agency or under such Global Capital Security, and the
Clearing Agency may be treated by the Trust, the Property Trustee and
any agent of the Trust or the Property Trustee as the absolute owner
of such Global Capital Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Trust,
the Property Trustee or any agent of the Trust or the Property Trustee
from giving effect to any written certification, proxy or other
authorization furnished by the Clearing Agency or impair, as between
the Clearing Agency and its Participants, the operation of customary
practices of such Clearing Agency governing the exercise of the rights
of a holder of a beneficial interest in the Global Capital Security.
d. Definitive Capital Securities. Except as provided in
Section 7.9, owners of beneficial interests in the Global Capital
Security will not be entitled to receive physical delivery of
certificated Capital Securities ("Definitive Capital Securities").
Purchasers of Securities who are "accredited investors" (as defined in
Rule 501(a)(1), (2), (3) or (7) under the Securities Act) and who are
not QIBs will receive Capital Securities in the form of individual
certificates in definitive, fully registered form without distribution
coupons and with the Restricted Securities Legend set forth in Exhibit
A-1 hereto ("Restricted Definitive Capital Securities"); provided,
however, that upon registration of transfer of such Restricted
Definitive Capital Securities to a QIB, such Restricted Definitive
Capital Securities will, unless the Global Capital Security has
previously been exchanged, be exchanged for an interest in the Global
Capital Security pursuant to the provisions of Section 9.2. Restricted
Definitive Capital Securities will bear the Restricted Securities
Legend set forth on Exhibit A-1 unless removed in accordance with this
Section 7.3 or Section 9.2.
SECTION 7.4 Registrar, Paying Agent and Exchange Agent.
The Trust shall maintain in the Borough of Manhattan, The
City of New York, (i) an office or agency where Capital Securities may
be presented for registration of transfer ("Registrar"), (ii) an
office or agency where Capital Securities may be presented for payment
("Paying Agent") and (iii) an office or agency where Securities may be
presented for exchange ("Exchange Agent"). The Registrar shall keep a
register of the Capital Securities and of their transfer. The Trust
may appoint the Registrar, the Paying Agent and the Exchange Agent and
may appoint one or more co-registrars, one or more additional paying
agents and one or more additional exchange agents in such other
locations as it shall determine. The term "Registrar" includes any
additional registrar, "Paying Agent" includes any additional paying
agent and the term "Exchange Agent" includes any additional exchange
agent. The Trust may change any Paying Agent, Registrar, co-registrar
or Exchange Agent without prior notice to any Holder. The Paying Agent
shall be permitted to resign as Paying Agent upon 30 days' written
notice to the Administrative Trustees. The Trust shall notify the
Property Trustee of the name and address of any Agent not a party to
this Declaration. If the Trust fails to appoint or maintain another
entity as Registrar, Paying Agent or Exchange Agent, the Property
Trustee shall act as such. The Trust or any of its Affiliates may act
as Paying Agent, Registrar or Exchange Agent. The Trust, through the
Administrative Trustees, shall act as Paying Agent, Registrar,
co-registrar and Exchange Agent for the Common Securities.
The Trust initially appoints the Property Trustee as
Registrar, Paying Agent and Exchange Agent for the Capital Securities.
SECTION 7.5 Paying Agent to Hold Money in Trust.
The Trust shall require each Paying Agent other than the
Property Trustee to agree in writing that the Paying Agent will hold
in trust for the benefit of Holders or the Property Trustee all money
held by the Paying Agent for the payment of liquidation amounts or
Distributions on the Securities, and will notify the Property Trustee
if there are insufficient funds for such purpose. While any such
insufficiency continues, the Property Trustee may require a Paying
Agent to pay all money held by it to the Property Trustee. The Trust
at any time may require a Paying Agent to pay all money held by it to
the Property Trustee and to account for any money disbursed by it.
Upon payment over to the Property Trustee, the Paying Agent (if other
than the Trust or an Affiliate of the Trust) shall have no further
liability for the money. If the Trust or the Sponsor or an Affiliate
of the Trust or the Sponsor acts as Paying Agent, it shall segregate
and hold in a separate trust fund for the benefit of the Holders all
money held by it as Paying Agent.
SECTION 7.5 Replacement Securities.
If the Holder of a Security claims that the Security has
been lost, destroyed or wrongfully taken or if such Security is
mutilated and is surrendered to the Trust or in the case of the
Capital Securities to the Property Trustee, an Administrative Trustee
shall execute and the Property Trustee shall authenticate and make
available for delivery a replacement Security if the Property
Trustee's requirements are met. An indemnity bond must be provided by
the Holder which, in the judgment of the Property Trustee, is
sufficient to protect the Trustees, the Sponsor or any authenticating
agent from any loss which any of them may suffer if a Security is
replaced. The Trust may charge such Holder for its expenses in
replacing a Security.
Every replacement Security is an additional beneficial
interest in the Trust.
SECTION 7.7 Outstanding Capital Securities.
The Capital Securities outstanding at any time are all the
Capital Securities authenticated by the Property Trustee except for
those canceled by it, those delivered to it for cancellation, and
those described in this Section as not outstanding.
If a Capital Security is replaced, paid or purchased
pursuant to Section 7.6 hereof, it ceases to be outstanding unless the
Property Trustee receives proof satisfactory to it that the replaced,
paid or purchased Capital Security is held by a bona fide purchaser.
If Capital Securities are considered paid in accordance with
the terms of this Declaration, they cease to be outstanding and
Distributions on them shall cease to accumulate.
A Capital Security does not cease to be outstanding because
one of the Trust, the Sponsor or an Affiliate of the Sponsor holds the
Security.
SECTION 7.8 Capital Securities in Treasury.
In determining whether the Holders of the required amount of
Securities have concurred in any direction, waiver or consent, Capital
Securities owned by the Trust, the Sponsor or an Affiliate of the
Sponsor, as the case may be, shall be disregarded and deemed not to be
outstanding, except that for the purposes of determining whether the
Property Trustee shall be fully protected in relying on any such
direction, waiver or consent, only Securities which a Responsible
Officer of the Property Trustee actually knows are so owned shall be
so disregarded.
SECTION 7.8 Temporary Securities.
a. Until Definitive Securities are ready for delivery, the
Trust may prepare and, in the case of the Capital Securities, the
Property Trustee shall authenticate temporary Securities. Temporary
Securities shall be substantially in the form of Definitive Securities
but may have variations that the Trust considers appropriate for
temporary Securities. Without unreasonable delay, the Trust shall
prepare and, in the case of the Capital Securities, the Property
Trustee shall authenticate Definitive Securities in exchange for
temporary Securities.
b. The Global Capital Security deposited with the Clearing
Agency or with the Property Trustee as custodian for the Clearing
Agency pursuant to Section 7.3 shall be transferred to the beneficial
owners thereof in the form of certificated Capital Securities only if
such transfer complies with Section 9.2 and (i) the Clearing Agency
notifies the Company that it is unwilling or unable to continue as
Clearing Agency for such Global Capital Security or if at any time
such Clearing Agency ceases to be a "clearing agency" registered under
the Exchange Act and a clearing agency is not appointed by the Sponsor
within 90 days of such notice, (ii) a Default or an Event of Default
has occurred and is continuing or (iii) the Trust at its sole
discretion elects to cause the issuance of certificated Capital
Securities.
c. Any Global Capital Security that is transferable to the
beneficial owners thereof in the form of certificated Capital
Securities pursuant to this Section 7.9 shall be surrendered by the
Clearing Agency to the Property Trustee located in the Borough of
Manhattan, The City of New York, to be so transferred, in whole or
from time to time in part, without charge, and the Property Trustee
shall authenticate and make available for delivery, upon such transfer
of each portion of such Global Capital Security, an equal aggregate
liquidation amount of Securities of authorized denominations in the
form of certificated Capital Securities. Any portion of the Global
Capital Security transferred pursuant to this Section shall be
registered in such names as the Clearing Agency shall direct. Any
Capital Security in the form of certificated Capital Securities
delivered in exchange for an interest in the Restricted Global Capital
Security shall, except as otherwise provided by Sections 7.3 and 9.1,
bear the Restricted Securities Legend set forth in Exhibit A-1 hereto.
d. Subject to the provisions of Section 7.9(c), the Holder
of the Global Capital Security may grant proxies and otherwise
authorize any Person, including Participants and Persons that may hold
interests through Participants, to take any action which such Holder
is entitled to take under this Declaration or the Securities.
e. In the event of the occurrence of any of the events
specified in Section 7.9(b), the Trust will promptly make available to
the Property Trustee a reasonable supply of certificated Capital
Securities in fully registered form without distribution coupons.
SECTION 7.10 Cancellation.
The Trust at any time may deliver Capital Securities to the
Property Trustee for cancellation. The Registrar, Paying Agent and
Exchange Agent shall forward to the Property Trustee any Capital
Securities surrendered to them for registration of transfer,
redemption, exchange or payment. The Property Trustee shall promptly
cancel all Capital Securities, surrendered for registration of
transfer, redemption, exchange, payment, replacement or cancellation
and shall dispose of cancelled Capital Securities as the Trust
directs, provided that the Property Trustee shall not be obligated to
destroy Capital Securities. The Trust may not issue new Capital
Securities to replace Capital Securities that it has paid or that have
been delivered to the Property Trustee for cancellation or that any
Holder has exchanged.
SECTION 7.11 CUSIP Numbers.
The Trust in issuing the Capital Securities may use "CUSIP"
numbers (if then generally in use), and, if so, the Property Trustee
shall use "CUSIP" numbers in notices of redemption as a convenience to
Holders of Capital Securities; provided that any such notice may state
that no representation is made as to the correctness of such numbers
either as printed on the Capital Securities or as contained in any
notice of a redemption and that reliance may be placed only on the
other identification numbers printed on the Capital Securities, and
any such redemption shall not be affected by any defect in or omission
of such numbers. The Sponsor will promptly notify the Property Trustee
of any change in the "CUSIP" numbers.
ARTICLE VIII
TERMINATION OF TRUST
SECTION 8.1 Termination of Trust.
a. The Trust shall automatically terminate:
(i) upon the bankruptcy of the Sponsor;
(ii) upon the filing of a certificate of
dissolution or liquidation or its equivalent with respect to the
Sponsor; or the revocation of the Sponsor's charter and the
expiration of 90 days after the date of revocation without a
reinstatement thereof;
(iii) following the distribution of a Like Amount
of the Debentures to the Holders of the Securities, provided that
the Property Trustee has received written notice from the Sponsor
directing the Property Trustee to terminate the Trust (which
direction is optional, and except as otherwise expressly provided
below, within the discretion of the Sponsor) and provided
further, that such direction and such distribution is conditioned
on (i) the prior approval of the Federal Reserve Board if such
approval is then required under applicable capital guidelines or
policies of the Federal Reserve Board, (ii) the Administrative
Trustees' receipt of an opinion of Howard & Howard Attorneys,
P.C., or another independent tax counsel experienced in such
matters (a "No Recognition Opinion"), which opinion may rely on
published rulings of the Internal Revenue Service, to the effect
that the Holders of the Securities will not recognize any gain or
loss for United States federal income tax purposes as a result of
the dissolution of the Trust and the distribution of Debentures;
(iv) upon the entry of a decree of judicial
dissolution of the Trust by a court of competent jurisdiction;
(v) when all of the Securities shall have been called
for redemption and the amounts necessary for redemption thereof
shall have been paid to the Holders in accordance with the terms
of the Securities;
(vi) upon the repayment of the Debentures or at
such time as no Debentures are outstanding; or
(vii) the expiration of the term of the Trust
provided in Section 3.14.
b. As soon as is practicable after the occurrence of an
event referred to in Section 8.1(a), the Administrative Trustees
shall, after satisfaction of all obligations of the Trust in
accordance with applicable law, file a certificate of cancellation
with the Secretary of State of the State of Delaware.
c. The provisions of Section 3.9 and Article X shall
survive the termination of the Trust.
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 Transfer of Securities.
a. Securities may only be transferred, in whole or in
part, in accordance with the terms and conditions set forth in this
Declaration and in the terms of the Securities. Any transfer or
purported transfer of any Security not made in accordance with this
Declaration shall be null and void.
b. Subject to this Article IX, Capital Securities may only
be transferred, in whole or in part, in accordance with the terms and
conditions set forth in this Declaration. Any transfer or purported
transfer of any Capital Security not made in accordance with this
Declaration shall be null and void.
c. The Sponsor may not transfer the Common Securities.
d. The Property Trustee shall provide for the registration
of Capital Securities and of the transfer of Capital Securities, which
will be effected without charge but only upon payment (with such
indemnity as the Property Trustee may require) in respect of any tax
or other governmental charges that may be imposed in relation to it.
Upon surrender for registration of transfer of any Capital Securities,
an Administrative Trustee shall cause one or more new Capital
Securities to be issued in the name of the designated transferee or
transferees. Every Capital Security surrendered for registration of
transfer shall be accompanied by a written instrument of transfer in
form satisfactory to the Property Trustee duly executed by the Holder
or such Holder's attorney duly authorized in writing. Each Capital
Security surrendered for registration of transfer shall be delivered
to the Property Trustee and canceled in accordance with Section 7.10.
A transferee of a Capital Security shall be entitled to the rights and
subject to the obligations of a Holder hereunder upon the receipt by
such transferee of a Capital Security. By acceptance of a Capital
Security, each transferee shall be deemed to have agreed to be bound
by this Declaration.
SECTION 9.2 Transfer Procedures and Restrictions.
a. General. Except as otherwise provided in Section
9.2(b), if Capital Securities are issued upon the registration of
transfer, exchange or replacement of Capital Securities bearing the
Restricted Securities Legend set forth in Exhibit A-1 hereto, or if a
request is made to remove such Restricted Securities Legend on Capital
Securities, the Capital Securities so issued shall bear the Restricted
Securities Legend, or the Restricted Securities Legend shall not be
removed, as the case may be, unless there is delivered to the Trust
and the Property Trustee such satisfactory evidence, which shall
include an Opinion of Counsel, as may be reasonably required by the
Trust and the Property Trustee, that neither the legend nor the
restrictions on transfer set forth therein are required to ensure that
transfers thereof are made pursuant to an exception from the
registration requirements of the Securities Act or, with respect to
Restricted Securities, that such Securities are not "restricted"
within the meaning of Rule 144. Upon provision of such satisfactory
evidence, the Property Trustee, at the written direction of the Trust,
shall authenticate and deliver Capital Securities that do not bear the
legend.
b. Transfers After Effectiveness of a Registration
Statement. After the effectiveness of a Registration Statement with
respect to any Capital Securities, all requirements pertaining to
legends on such Capital Securities will cease to apply, and beneficial
interests in the Global Capital Security without legends will be
available to transferees of such Capital Securities, upon exchange of
the transferring Holder's Restricted Definitive Capital Security or
directions to transfer such Holder's beneficial interest in the Global
Capital Security. No such transfer or exchange of a Restricted
Definitive Capital Security or of an interest in the Global Capital
Security shall be effective unless the transferor delivers to the
Property Trustee a certificate in a form substantially similar to that
attached hereto as the "Form of Assignment" in Exhibit A-1. Except as
otherwise provided in Section 9.2(m), after the effectiveness of a
Registration Statement, the Trust shall issue and the Property
Trustee, upon a written order of the Trust signed by one
Administrative Trustee, shall authenticate the Global Capital Security
without the Restricted Securities Legend (the "Unrestricted Global
Capital Security") to deposit with the Clearing Agency to evidence
transfers of beneficial interests from the (i) Global Capital Security
and (ii) Restricted Definitive Capital Securities.
c. Transfer and Exchange of Definitive Capital Securities.
When Definitive Capital Securities are presented to the Registrar or
co-registrar
(x) to register the transfer of such Definitive
Capital Securities or
(y) to exchange such Definitive Capital Securities
which became mutilated, destroyed, defaced, stolen or lost, for
an equal number of Definitive Capital Securities,
the Registrar or co-registrar shall register the transfer or make the
exchange as requested if its reasonable requirements for such
transaction are met; provided, however, that the Definitive Capital
Securities surrendered for registration of transfer or exchange:
(i) shall be duly endorsed or accompanied by a written
instrument of transfer in form reasonably satisfactory to the
Trust and the Registrar or co-registrar, duly executed by the
Holder thereof or his attorney duly authorized in writing; and
(ii) in the case of Definitive Capital Securities
that are Restricted Definitive Capital Securities:
A. if such Restricted Capital Securities
are being delivered to the Registrar by a Holder for
registration in the name of such Holder, without
transfer, a certification from such Holder to that
effect; or
B. if such Restricted Capital Securities
are being transferred: (i) a certification from the
transferor in a form substantially similar to that
attached hereto as the "Form of Assignment" in Exhibit
A-1, and (ii) if the Trust or Registrar so requests,
evidence reasonably satisfactory to them as to the
compliance with the restrictions set forth in the
Restricted Securities Legend.
d. Restrictions on Transfer of a Definitive Capital
Security for a Beneficial Interest in the Global Capital Security. A
Definitive Capital Security may not be exchanged for a beneficial
interest in the Global Capital Security except upon satisfaction of
the requirements set forth below. Upon receipt by the Property Trustee
of a Definitive Capital Security, duly endorsed or accompanied by
appropriate instruments of transfer, in form satisfactory to the
Property Trustee, together with:
(i) if such Definitive Capital Security is a
Restricted Capital Security, certification from the transferor in
a form substantially similar to that attached hereto as the "Form
of Assignment" in Exhibit A-1; and
(ii) whether or not such Definitive Capital
Security is a Restricted Capital Security, written instructions
directing the Property Trustee to make, or to direct the Clearing
Agency to make, an adjustment on its books and records with
respect to the Global Capital Security to reflect an increase in
the number of the Capital Securities represented by such Global
Capital Security;
then the Property Trustee shall cancel such Definitive Capital
Security and cause, or direct the Clearing Agency to cause, the
aggregate number of Capital Securities represented by the Global
Capital Security to be increased accordingly. If no Global Capital
Security is then outstanding, the Trust shall issue and the Property
Trustee shall authenticate, upon written order of any Administrative
Trustee, the Global Capital Security representing the appropriate
number of Capital Securities.
e. Transfer and Exchange of the Global Capital Security.
Subject to Section 9.02(f), the transfer and exchange of the Global
Capital Security or beneficial interests therein shall be effected
through the Clearing Agency, in accordance with this Declaration
(including applicable restrictions on transfer set forth herein, if
any) and the procedures of the Clearing Agency therefor.
f. Transfer of a Beneficial Interest in the Global Capital
Security for a Definitive Capital Security.
(i) Any Person having a beneficial interest in the
Global Capital Security may upon request, but only upon 20 days
prior notice to the Property Trustee, and if accompanied by the
information specified below, exchange such beneficial interest
for a Definitive Capital Security representing the same number of
Capital Securities. Upon receipt by the Property Trustee from the
Clearing Agency or its nominee on behalf of any Person having a
beneficial interest in the Global Capital Security of written
instructions or such other form of instructions as is customary
for the Clearing Agency or the Person designated by the Clearing
Agency as having such a beneficial interest in a Restricted
Capital Security and a certification from the transferor (in a
form substantially similar to that attached hereto as the "Form
of Assignment" in Exhibit A-1), which may be submitted by
facsimile, then the Property Trustee will cause the aggregate
number of Capital Securities represented by Global Capital
Security to be reduced on its books and records and, following
such reduction, the Trust will execute and the Property Trustee
will authenticate and make available for delivery to the
transferee a Definitive Capital Security.
(ii) Definitive Capital Securities issued in
exchange for a beneficial interest in the Global Capital Security
pursuant to this Section 9.2(f) shall be registered in such names
and in such authorized denominations as the Clearing Agency,
pursuant to instructions from its Participants or indirect
participants or otherwise, shall instruct the Property Trustee in
writing. The Property Trustee shall deliver such Capital
Securities to the Persons in whose names such Capital Securities
are so registered in accordance with such instructions of the
Clearing Agency.
g. Restrictions on Transfer and Exchange of the Global
Capital Security. Notwithstanding any other provisions of this
Declaration (other than the provisions set forth in subsection (h) of
this Section 9.2), the Global Capital Security may not be transferred
as a whole except by the Clearing Agency to a nominee of the Clearing
Agency or another nominee of the Clearing Agency or by the Clearing
Agency or any such nominee to a successor Clearing Agency or a nominee
of such successor Clearing Agency.
h. Authentication of Definitive Capital Securities. If at
any time:
(i) there occurs a Default or an Event of Default
which is continuing; or
(ii) the Trust, in its sole discretion, notifies
the Property Trustee in writing that it elects to cause the
issuance of Definitive Capital Securities under this Declaration;
then the Trust will execute, and the Property Trustee, upon receipt of
a written order of the Trust signed by one Administrative Trustee
requesting the authentication and delivery of Definitive Capital
Securities to the Persons designated by the Trust, will authenticate
and make available for delivery Definitive Capital Securities, equal
in number to the number of Capital Securities represented by the
Global Capital Security, in exchange for such Global Capital Security.
(i) Legend.
(i) Except as permitted by the following paragraph
(ii), each Capital Security certificate evidencing the Global
Capital Security and the Definitive Capital Securities (and all
Capital Securities issued in exchange therefor or substitution
thereof) shall bear a legend (the "Restricted Securities Legend")
in substantially the following form:
THIS CAPITAL SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT") OR ANY STATE SECURITIES LAWS OR ANY OTHER
APPLICABLE SECURITIES LAW. NEITHER THIS CAPITAL
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 SUCH TRANSACTION IS EXEMPT
FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS CAPITAL SECURITY BY ITS ACCEPTANCE
HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER THIS
CAPITAL SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS THREE YEARS
AFTER THE LATER OF THE ORIGINAL ISSUANCE DATE HEREOF
AND THE LAST DATE ON WHICH FIRST OF AMERICA BANK
CORPORATION (THE "COMPANY") OR ANY "AFFILIATE" OF THE
COMPANY WAS THE OWNER OF THIS CAPITAL SECURITY (OR ANY
PREDECESSOR OF THIS CAPITAL SECURITY) ONLY (A) TO THE
COMPANY (B) PURSUANT TO A REGISTRATION STATEMENT WHICH
HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT,
(C) SO LONG AS THIS CAPITAL SECURITY IS ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT
("RULE 144A"), TO A PERSON IT 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 TO WHOM
NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON 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 CAPITAL
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 ANY
OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, SUBJECT TO THE
RIGHT OF FIRST OF AMERICA CAPITAL TRUST I (THE "TRUST")
AND THE COMPANY PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER (i) PURSUANT TO CLAUSE (D) OR (E) TO REQUIRE
THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS
AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM,
AND (ii) PURSUANT TO CLAUSE (D), TO REQUIRE THAT A
CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE
REVERSE OF THIS CAPITAL SECURITY IS COMPLETED AND
DELIVERED BY THE TRANSFEREE TO THE TRUST. SUCH HOLDER
FURTHER AGREES THAT IT WILL DELIVER TO EACH PERSON TO
WHOM THIS CAPITAL SECURITY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
(ii) Upon any sale or transfer of a Restricted
Capital Security (including any Restricted Capital Security
represented by the Global Capital Security) pursuant to an
effective registration statement under the Securities Act or
pursuant to Rule 144 under the Securities Act after such
registration statement ceases to be effective:
A. in the case of any Restricted Capital Security
that is a Definitive Capital Security, the Registrar shall
permit the Holder thereof to exchange such Restricted
Capital Security for a Definitive Capital Security that does
not bear the Restricted Securities Legend and rescind any
restriction on the transfer of such Restricted Capital
Security; and
B. in the case of any Restricted Capital Security
that is represented by the Global Capital Security, the
Registrar shall permit the Holder of such Global Capital
Security to exchange such Global Capital Security for
another Global Capital Security that does not bear the
Restricted Securities Legend.
j. Cancellation or Adjustment of Global Capital Security.
At such time as all beneficial interests in the Global Capital
Security have either been exchanged for Definitive Capital Securities
to the extent permitted by this Declaration or redeemed, repurchased
or canceled in accordance with the terms of this Declaration, such
Global Capital Security shall be returned to the Clearing Agency for
cancellation or retained and canceled by the Property Trustee. At any
time prior to such cancellation, if any beneficial interest in the
Global Capital Security is exchanged for Definitive Capital
Securities, Capital Securities represented by such Global Capital
Security shall be reduced and an adjustment shall be made on the books
and records of the Property Trustee (if it is then the custodian for
such Global Capital Security) with respect to such Global Capital
Security, by the Property Trustee or the Securities Custodian, to
reflect such reduction.
k. Obligations with Respect to Transfers and Exchanges of
Capital Securities.
(i) To permit registrations of transfers and
exchanges, the Trust shall execute and the Property Trustee shall
authenticate Definitive Capital Securities and the Global Capital
Security at the Registrar's or co-registrar's request in
accordance with the terms of this Declaration.
(ii) Registrations of transfers or exchanges will
be effected without charge, but only upon payment (with such
indemnity as the Trust or the Sponsor may require) in respect of
any tax or other governmental charge that may be imposed in
relation to it.
(iii) The Registrar or co-registrar shall not be
required to register the transfer of or exchange (a) Capital
Securities during a period beginning at the opening of business
15 days before the day of mailing of a notice of redemption or
any notice of selection of Capital Securities for redemption and
ending at the close of business on the day of such mailing; or
(b) any Capital Security so selected for redemption in whole or
in part, except the unredeemed portion of any Capital Security
being redeemed in part.
(iv) Prior to the due presentation for
registration of transfer of any Capital Security, the Trust, the
Property Trustee, the Paying Agent, the Registrar or any
co-registrar may deem and treat the Person in whose name a
Capital Security is registered as the absolute owner of such
Capital Security for the purpose of receiving Distributions on
such Capital Security and for all other purposes whatsoever, and
none of the Trust, the Property Trustee, the Paying Agent, the
Registrar or any co-registrar shall be affected by notice to the
contrary.
(v) All Capital Securities issued upon any
registration of transfer or exchange pursuant to the terms of
this Declaration shall evidence the same security and shall be
entitled to the same benefits under this Declaration as the
Capital Securities surrendered upon such registration of transfer
or exchange.
l. No Obligation of the Property Trustee.
(i) The Property Trustee shall have no responsibility
or obligation to any beneficial owner of the Global Capital
Security, a Participant in the Clearing Agency or other Person
with respect to the accuracy of the records of the Clearing
Agency or its nominee or of any Participant thereof, with respect
to any ownership interest in the Capital Securities or with
respect to the delivery to any Participant, beneficial owner or
other Person (other than the Clearing Agency) of any notice
(including any notice of redemption) or the payment of any
amount, under or with respect to such Capital Securities. All
notices and communications to be given to the Holders and all
payments to be made to Holders under the Capital Securities shall
be given or made only to or upon the order of the registered
Holders (which shall be the Clearing Agency or its nominee in the
case of the Global Capital Security). The rights of beneficial
owners in the Global Capital Security shall be exercised only
through the Clearing Agency subject to the applicable rules and
procedures of the Clearing Agency. The Property Trustee may
conclusively rely and shall be fully protected in relying upon
information furnished by the Clearing Agency or any agent thereof
with respect to its Participants and any beneficial owners.
(ii) The Property Trustee and Registrar shall have
no obligation or duty to monitor, determine or inquire as to
compliance with any restrictions on transfer imposed under this
Declaration or under applicable law with respect to any transfer
of any interest in any Capital Security (including any transfers
between or among Clearing Agency Participants or beneficial
owners in the Global Capital Security) other than to require
delivery of such certificates and other documentation or evidence
as are expressly required by, and to do so if and when expressly
required by, the terms of this Declaration, and to examine the
same to determine substantial compliance as to form with the
express requirements hereof.
m. Exchange of Series A Capital Securities for Series B
Capital Securities. The Series A Capital Securities may be exchanged
for Series B Capital Securities pursuant to the terms of the Exchange
Offer. The Property Trustee shall make the exchange as follows:
The Sponsor shall present the Property Trustee with an
Officers' Certificate certifying the following:
A. upon issuance of the Series B Capital Securities,
the transactions contemplated by the Exchange Offer have
been consummated; and
B. the number of Series A Capital Securities properly
tendered in the Exchange Offer that are represented by the
Global Capital Security and the number of Series A Capital
Securities properly tendered in the Exchange Offer that are
represented by Definitive Capital Securities, the name of
each Holder of such Definitive Capital Securities, the
liquidation amount of Capital Securities properly tendered
in the Exchange Offer by each such Holder and the name and
address to which Definitive Capital Securities for Series B
Capital Securities shall be registered and sent for each
such Holder.
The Property Trustee, upon receipt of (i) such Officers'
Certificate, (ii) an Opinion of Counsel (x) to the effect that the
Series B Capital Securities have been registered under Section 5 of
the Securities Act and this Declaration, the Series B Capital
Securities Guarantee and the Indenture have been qualified under the
Trust Indenture Act and (y) with respect to the matters set forth in
Section 3(p) of the Registration Rights Agreement and (iii) a Company
Order, shall authenticate (A) the Global Capital Security for Series B
Capital Securities in aggregate liquidation amount equal to the
aggregate liquidation amount of Series A Capital Securities
represented by the Global Capital Security indicated in such Officers'
Certificate as having been properly tendered and (B) Definitive
Capital Securities representing Series B Capital Securities registered
in the names and in the liquidation amounts, indicated in such
Officers' Certificate.
If, upon consummation of the Exchange Offer, less than all
the outstanding Series A Capital Securities shall have been properly
tendered and not withdrawn, the Property Trustee shall make an
endorsement on the Global Capital Security for Series A Capital
Securities indicating the reduction in the number and aggregate
liquidation amount represented thereby as a result of the Exchange
Offer.
The Trust shall deliver such Definitive Capital Securities
for Series B Capital Securities to the Holders thereof as indicated in
such Officers' Certificate.
n. Minimum Transfers. Series A Capital Securities may
only be transferred in minimum blocks of $100,000 aggregate
liquidation amount until such Series A Capital Securities are
registered pursuant to an effective Registration Statement filed under
the Securities Act or are "unrestricted" pursuant to Rule 144 under
the Securities Act.
SECTION 9.3 Deemed Security Holders.
The Trustees may treat the Person in whose name any Security
shall be registered on the books and records of the Trust as the sole
owner of such Security for purposes of receiving Distributions and for
all other purposes whatsoever and, accordingly, shall not be bound to
recognize any equitable or other claim to or interest in such Security
on the part of any Person, whether or not the Trust shall have actual
or other notice thereof.
SECTION 9.4 Book Entry Interests.
The Global Capital Security shall initially be registered on
the books and records of the Trust in the name of Cede & Co., the
nominee of the Clearing Agency, and no Capital Security Beneficial
Owner will receive a definitive certificate for a Capital Security (a
"Capital Security Certificate") representing such Capital Security
Beneficial Owner's interests in such Global Capital Security, except
as provided in Section 9.2. Unless and until definitive, fully
registered Capital Securities certificates have been issued to the
Capital Security Beneficial Owners pursuant to Section 9.2:
a. the provisions of this Section 9.4 shall be in full
force and effect;
b. the Trust and the Trustees shall be entitled to deal
with the Clearing Agency for all purposes of this Declaration
(including the payment of Distributions on the Global Capital Security
and receiving approvals, votes or consents hereunder) as the Holder of
the Capital Securities and the sole holder of the Global Capital
Security and shall have no obligation to the Capital Security
Beneficial Owners;
c. to the extent that the provisions of this Section 9.4
conflict with any other provisions of this Declaration, the provisions
of this Section 9.4 shall control; and
d. the rights of the Capital Security Beneficial Owners
shall be exercised only through the Clearing Agency and shall be
limited to those established by law and agreements between such
Capital Security Beneficial Owners and the Clearing Agency and/or the
Clearing Agency Participants and receive and transmit payments of
Distributions on the Global Capital Security to such Clearing Agency
Participants. DTC will make book entry transfers among the Clearing
Agency Participants.
SECTION 9.5 Notices to Clearing Agency.
Whenever a notice or other communication to the Capital
Security Holders is required under this Declaration, the Trustees
shall give all such notices and communications specified herein to be
given to the Holder of the Global Capital Security to the Clearing
Agency, and shall have no notice obligations to the Capital Security
Beneficial Owners.
SECTION 9.6 Appointment of Successor Clearing Agency.
If any Clearing Agency elects to discontinue its services as
securities depositary with respect to the Capital Securities the
Administrative Trustees may, in their sole discretion, appoint a
successor Clearing Agency with respect to such Capital Securities.
ARTICLE X
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1 Liability.
a. Except as expressly set forth in this Declaration, the
Securities Guarantees and the terms of the Securities, the Sponsor
shall not be:
(i) personally liable for the return of any portion of
the capital contributions (or any return thereon) of the Holders
of the Securities which shall be made solely from assets of the
Trust; and
(ii) be required to pay to the Trust or to any
Holder of Securities any deficit upon dissolution of the Trust or
otherwise.
b. The Sponsor shall be liable for all of the debts and
obligations of the Trust (other than with respect to the Securities)
to the extent not satisfied out of the Trust's assets.
c. Pursuant to Section 3803(a) of the Business Trust Act,
the Holders of the Capital Securities shall be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of
the State of Delaware.
SECTION 10.2 Exculpation.
a. No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Trust or any Covered Person
for any loss, damage or claim incurred by reason of any act or
omission performed or omitted by such Indemnified Person in good faith
on behalf of the Trust and in a manner such Indemnified Person
reasonably believed to be within the scope of the authority conferred
on such Indemnified Person by this Declaration or by law, except that
an Indemnified Person shall be liable for any such loss, damage or
claim incurred by reason of such Indemnified Person's gross negligence
(or, in the case of the Property Trustee, negligence) or willful
misconduct with respect to such acts or omissions.
b. An Indemnified Person shall be fully protected in
relying in good faith upon the records of the Trust and upon such
information, opinions, reports or statements presented to the Trust by
any Person as to matters the Indemnified Person reasonably believes
are within such other Person's professional or expert competence and
who has been selected with reasonable care by or on behalf of the
Trust, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities,
profits, losses, or any other facts pertinent to the existence and
amount of assets from which Distributions to Holders of Securities
might properly be paid.
SECTION 10.3 Fiduciary Duty.
a. To the extent that, at law or in equity, an Indemnified
Person has duties (including fiduciary duties) and liabilities
relating thereto to the Trust or to any other Covered Person, an
Indemnified Person acting under this Declaration shall not be liable
to the Trust or to any other Covered Person for its good faith
reliance on the provisions of this Declaration. The provisions of this
Declaration, to the extent that they restrict the duties and
liabilities of an Indemnified Person otherwise existing at law or in
equity (other than the duties imposed on the Property Trustee under
the Trust Indenture Act), are agreed by the parties hereto to replace
such other duties and liabilities of such Indemnified Person.
b. Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises
between any Covered Persons; or
(ii) whenever this Declaration or any other
agreement contemplated herein or therein provides that an
Indemnified Person shall act in a manner that is, or provides
terms that are, fair and reasonable to the Trust or any Holder of
Securities;
the Indemnified Person shall resolve such conflict of interest, take
such action or provide such terms, considering in each case the
relative interest of each party (including its own interest) to such
conflict, agreement, transaction or situation and the benefits and
burdens relating to such interests, any customary or accepted industry
practices, and any applicable generally accepted accounting practices
or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by the
Indemnified Person shall not constitute a breach of this Declaration
or any other agreement contemplated herein or of any duty or
obligation of the Indemnified Person at law or in equity or otherwise.
c. Whenever in this Declaration an Indemnified Person is
permitted or required to make a decision:
(i) in its "discretion" or under a grant of similar
authority, the Indemnified Person shall be entitled to consider
such interests and factors as it desires, including its own
interests, and shall have no duty or obligation to give any
consideration to any interest of or factors affecting the Trust
or any other Person; or
(ii) in its "good faith" or under another express
standard, the Indemnified Person shall act under such express
standard and shall not be subject to any other or different
standard imposed by this Declaration or by applicable law.
SECTION 10.4 Indemnification.
a. (i) The Sponsor shall indemnify, to the full extent
permitted by law, any Company Indemnified Person who was or is a party
or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the
right of the Trust) by reason of the fact that he is or was a Company
Indemnified Person against expenses (including attorneys' fees and
expenses), judgments, fines and amounts paid in settlement actually
and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Trust,
and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination
of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall
not, of itself, create a presumption that the Company Indemnified
Person did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the Trust,
and with respect to any criminal action or proceeding, had reasonable
cause to believe that his conduct was unlawful.
(ii) The Sponsor shall indemnify, to the full
extent permitted by law, any Company Indemnified Person who was
or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the
right of the Trust to procure a judgment in its favor by reason
of the fact that he is or was a Company Indemnified Person
against expenses (including attorneys' fees and expenses)
actually and reasonably incurred by him in connection with the
defense or settlement of such action or suit if he acted in good
faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Trust and except that no
such indemnification shall be made in respect of any claim, issue
or matter as to which such Company Indemnified Person shall have
been adjudged to be liable to the Trust unless and only to the
extent that the Court of Chancery of Delaware or the court in
which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in
view of all the circumstances of the case, such Person is fairly
and reasonably entitled to indemnity for such expenses which such
Court of Chancery or such other court shall deem proper.
(iii) To the extent that a Company Indemnified
Person shall be successful on the merits or otherwise (including
dismissal of an action without prejudice or the settlement of an
action without admission of liability) in defense of any action,
suit or proceeding referred to in paragraphs (i) and (ii) of this
Section 10.4(a), or in defense of any claim, issue or matter
therein, he shall be indemnified, to the full extent permitted by
law, against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
(iv) Any indemnification under paragraphs (i) and
(ii) of this Section 10.4(a) (unless ordered by a court) shall be
made by the Sponsor only as authorized in the specific case upon
a determination that indemnification of the Company Indemnified
Person is proper in the circumstances because he has met the
applicable standard of conduct set forth in paragraphs (i) and
(ii). Such determination shall be made (1) by the Administrative
Trustees by a majority vote of a quorum consisting of such
Administrative Trustees who were not parties to such action, suit
or proceeding, (2) if such a quorum is not obtainable, or, even
if obtainable, if a quorum of disinterested Administrative
Trustees so directs, by independent legal counsel in a written
opinion, or (3) by the Common Security Holder of the Trust.
(v) Expenses (including attorneys' fees and expenses)
incurred by a Company Indemnified Person in defending a civil,
criminal, administrative or investigative action, suit or
proceeding referred to in paragraphs (i) and (ii) of this Section
10.4(a) shall be paid by the Sponsor in advance of the final
disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such Company Indemnified Person to
repay such amount if it shall ultimately be determined that he is
not entitled to be indemnified by the Sponsor as authorized in
this Section 10.4(a). Notwithstanding the foregoing, no advance
shall be made by the Sponsor if a determination is reasonably and
promptly made (i) by the Administrative Trustees by a majority
vote of a quorum of disinterested Administrative Trustees, (ii)
if such a quorum is not obtainable, or, even if obtainable, if a
quorum of disinterested Administrative Trustees so directs, by
independent legal counsel in a written opinion or (iii) the
Common Security Holder of the Trust, that, based upon the facts
known to the Administrative Trustees, counsel or the Common
Security Holder at the time such determination is made, such
Company Indemnified Person acted in bad faith or in a manner that
such Person did not believe to be in or not opposed to the best
interests of the Trust, or, with respect to any criminal
proceeding, that such Company Indemnified Person believed or had
reasonable cause to believe his conduct was unlawful. In no event
shall any advance be made in instances where the Administrative
Trustees, independent legal counsel or Common Security Holder
reasonably determine that such Person deliberately breached his
duty to the Trust or its Common or Capital Security Holders.
(vi) The indemnification and advancement of
expenses provided by, or granted pursuant to, the other
paragraphs of this Section 10.4(a) shall not be deemed exclusive
of any other rights to which those seeking indemnification and
advancement of expenses may be entitled under any agreement, vote
of shareholders or disinterested directors of the Sponsor or
Capital Security Holders of the Trust or otherwise, both as to
action in his official capacity and as to action in another
capacity while holding such office. All rights to indemnification
under this Section 10.4(a) shall be deemed to be provided by a
contract between the Sponsor and each Company Indemnified Person
who serves in such capacity at any time while this Section
10.4(a) is in effect. Any repeal or modification of this Section
10.4(a) shall not affect any rights or obligations then existing.
(vii) The Sponsor or the Trust may purchase and
maintain insurance on behalf of any Person who is or was a
Company Indemnified Person against any liability asserted against
him and incurred by him in any such capacity, or arising out of
his status as such, whether or not the Debenture Issuer would
have the power to indemnify him against such liability under the
provisions of this Section 10.4(a).
(viii) For purposes of this Section 10.4(a),
references to "the Trust" shall include, in addition to the
resulting or surviving entity, any constituent entity (including
any constituent of a constituent) absorbed in a consolidation or
merger, so that any Person who is or was a director, trustee,
officer or employee of such constituent entity, or is or was
serving at the request of such constituent entity as a director,
trustee, officer, employee or agent of another entity, shall
stand in the same position under the provisions of this Section
10.4(a) with respect to the resulting or surviving entity as he
would have with respect to such constituent entity if its
separate existence had continued.
(ix) The indemnification and advancement of
expenses provided by, or granted pursuant to, this Section
10.4(a) shall, unless otherwise provided when authorized or
ratified, continue as to a Person who has ceased to be a Company
Indemnified Person and shall inure to the benefit of the heirs,
executors and administrators of such a Person.
b. The Sponsor agrees to indemnify, to full extent
permitted by law, the (i) Property Trustee, (ii) the Delaware Trustee,
(iii) any Affiliate of the Property Trustee or the Delaware Trustee,
and (iv) any officers, directors, shareholders, members, partners,
employees, representatives, custodians, nominees or agents of the
Property Trustee or the Delaware Trustee (each of the Persons in (i)
through (iv) being referred to as a "Fiduciary Indemnified Person")
for, and to hold each Fiduciary Indemnified Person harmless against,
any and all loss, liability, damage, claim or expense including taxes
(other than taxes based on the income of such Fiduciary Indemnified
Person) incurred without negligence or bad faith on its part, arising
out of or in connection with the acceptance or administration of the
trust or trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against or
investigating any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder. The
obligation to indemnify as set forth in this Section 10.4(b) shall
survive the resignation or removal of the Property Trustee or the
Delaware Trustee and the satisfaction and discharge of this
Declaration.
SECTION 10.5 Compensation of Property Trustee and Delaware Trustee.
The Sponsor agrees to pay the Property Trustee and the
Delaware Trustee, from time to time such compensation for all services
rendered by the Property Trustee and the Delaware Trustee hereunder as
may be mutually agreed upon in writing by the Sponsor and the Property
Trustee or the Delaware Trustee, as the case may be, and, except as
otherwise expressly provided herein, to reimburse the Property Trustee
and the Delaware Trustee upon its or their request for all reasonable
expenses, disbursements and advances incurred or made by the Property
Trustee or the Delaware Trustee, as the case may be, in accordance
with the provisions of this Declaration, except any such expense,
disbursement or advance as may be attributable to its or their
negligence or bad faith.
SECTION 10.6 Outside Businesses.
Any Covered Person, the Sponsor, the Delaware Trustee and
the Property Trustee may engage in or possess an interest in other
business ventures of any nature or description, independently or with
others, similar or dissimilar to the business of the Trust, and the
Trust and the Holders of Securities shall have no rights by virtue of
this Declaration in and to such independent ventures or the income or
profits derived therefrom, and the pursuit of any such venture, even
if competitive with the business of the Trust, shall not be deemed
wrongful or improper. No Covered Person, the Sponsor, the Delaware
Trustee, or the Property Trustee shall be obligated to present any
particular investment or other opportunity to the Trust even if such
opportunity is of a character that, if presented to the Trust, could
be taken by the Trust, and any Covered Person, the Sponsor, the
Delaware Trustee and the Property Trustee shall have the right to take
for its own account (individually or as a partner or fiduciary) or to
recommend to others any such particular investment or other
opportunity. Any Covered Person, the Delaware Trustee and the Property
Trustee may engage or be interested in any financial or other
transaction with the Sponsor or any Affiliate of the Sponsor, or may
act as depositary for, trustee or agent for, or act on any committee
or body of holders of, securities or other obligations of the Sponsor
or its Affiliates.
ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year.
The fiscal year ("Fiscal Year") of the Trust shall be the
calendar year, or such other year as is required by the Code.
SECTION 11.2 Certain Accounting Matters.
a. At all times during the existence of the Trust, the
Administrative Trustees shall keep, or cause to be kept, full books of
account, records and supporting documents, which shall reflect in
reasonable detail, each transaction of the Trust. The books of account
shall be maintained on the accrual method of accounting, in accordance
with generally accepted accounting principles, consistently applied.
The Trust shall use the accrual method of accounting for United States
federal income tax purposes. The books of account and the records of
the Trust shall be examined by and reported upon as of the end of each
Fiscal Year of the Trust by a firm of independent certified public
accountants selected by the Administrative Trustees.
b. The Administrative Trustees shall cause to be prepared
and delivered to each of the Holders of Securities, within 90 days
after the end of each Fiscal Year of the Trust, annual financial
statements of the Trust, including a balance sheet of the Trust as of
the end of such Fiscal Year, and the related statements of income or
loss;
c. The Administrative Trustees shall cause to be duly
prepared and delivered to each of the Holders of Securities, any
annual United States federal income tax information statement,
required by the Code, containing such information with regard to the
Securities held by each Holder as is required by the Code and the
Treasury Regulations. Notwithstanding any right under the Code to
deliver any such statement at a later date, the Administrative
Trustees shall endeavor to deliver all such information statements
within 30 days after the end of each Fiscal Year of the Trust.
d. The Administrative Trustees shall cause to be duly
prepared and filed with the appropriate taxing authority, an annual
United States federal income tax return, on a Form 1041 or such other
form required by United States federal income tax law, and any other
annual income tax returns required to be filed by the Administrative
Trustees on behalf of the Trust with any state or local taxing
authority.
SECTION 11.3 Banking.
The Trust shall maintain one or more bank accounts in the
name and for the sole benefit of the Trust; provided, however, that
all payments of funds in respect of the Debentures held by the
Property Trustee shall be made directly to the Property Trustee
Account and no other funds of the Trust shall be deposited in the
Property Trustee Account. The sole signatories for such accounts shall
be designated by the Administrative Trustees; provided, however, that
the Property Trustee shall designate the signatories for the Property
Trustee Account.
SECTION 11.4 Withholding.
The Trust and the Administrative Trustees shall comply with
all withholding requirements under United States federal, state and
local law. The Trust shall request, and the Holders shall provide to
the Trust, such forms or certificates as are necessary to establish an
exemption from withholding with respect to each Holder, and any
representations and forms as shall reasonably be requested by the
Trust to assist it in determining the extent of, and in fulfilling,
its withholding obligations. The Administrative Trustees shall cause
to be filed required forms with applicable jurisdictions and, unless
an exemption from withholding is properly established by a Holder,
shall remit amounts withheld with respect to the Holder to applicable
jurisdictions. To the extent that the Trust is required to withhold
and pay over any amounts to any authority with respect to
Distributions or allocations to any Holder, the amount withheld shall
be deemed to be a Distribution in the amount of the withholding to the
Holder. In the event of any claimed over withholding, Holders shall be
limited to an action against the applicable jurisdiction. If the
amount required to be withheld was not withheld from actual
Distributions made, the Trust may reduce subsequent Distributions by
the amount of such withholding.
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments.
a. Except as otherwise provided in this Declaration or by
any applicable terms of the Securities, this Declaration may only be
amended by a written instrument approved and executed by:
(i) the Sponsor and the Administrative Trustees (or,
if there are more than two Administrative Trustees, a majority of
the Administrative Trustees);
(ii) if the amendment affects the rights, powers,
duties, obligations or immunities of the Property Trustee, the
Property Trustee; and
(iii) if the amendment affects the rights, powers,
duties, obligations or immunities of the Delaware Trustee, the
Delaware Trustee.
b. No amendment shall be made, and any such purported
amendment shall be void and ineffective:
(i) unless, in the case of any proposed amendment, the
Property Trustee shall have first received an Officers'
Certificate from each of the Trust and the Sponsor that such
amendment is permitted by, and conforms to, the terms of this
Declaration (including the terms of the Securities);
(ii) unless, in the case of any proposed amendment
which affects the rights, powers, duties, obligations or
immunities of the Property Trustee, the Property Trustee shall
have first received:
A. an Officers' Certificate from each of the Trust
and the Sponsor that such amendment is permitted by, and
conforms to, the terms of this Declaration (including the
terms of the Securities); and
B. an Opinion of Counsel (who may be counsel to the
Sponsor or the Trust) that
(x) such amendment is permitted by, and conforms
to, the terms of this Declaration (including the terms of
the Securities) and
(y) all conditions precedent to the execution and
delivery of such amendment have been satisfied;
provided, however, that the Property Trustee shall not be
required to sign any such amendment; and
(iii) to the extent the result of such amendment
would be to:
A. cause the Trust to fail to continue to be
classified for purposes of United States federal income
taxation as a grantor trust;
B. reduce or otherwise adversely affect the powers of
the Property Trustee in contravention of the Trust Indenture
Act; or
C. cause the Trust to be deemed to be an Investment
Company required to be registered under the Investment
Company Act;
c. At such time after the Trust has issued any Securities
that remain outstanding, any amendment that would adversely affect the
rights, privileges or preferences of any Holder of Securities may be
effected only with such additional requirements as may be set forth in
the terms of such Securities;
d. Section 10.1(c) and this Section 12.1 shall not be
amended without the consent of all of the Holders of the Securities;
e. Article Four shall not be amended without the consent
of the Holders of a Majority in liquidation amount of the Common
Securities;
f. The rights of the holders of the Common Securities
under Article V to increase or decrease the number of, and appoint and
remove Trustees shall not be amended without the consent of the
Holders of a Majority in liquidation amount of the Common Securities;
and
g. Notwithstanding Section 12.1(c), this Declaration may
be amended without the consent of the Holders of the Securities to:
(i) cure any ambiguity, correct or supplement any
provision in this Declaration that may be inconsistent with any
other provision of this Declaration or to make any other
provisions with respect to matters or questions arising under
this Declaration which shall not be inconsistent with the other
provisions of the Declaration; and
(ii) to modify, eliminate or add to any provisions
of the Declaration to such extent as shall be necessary to ensure
that the Trust will be classified for United States federal
income tax purposes as a grantor trust at all times that any
Securities are outstanding or to ensure that the Trust will not
be required to register as an Investment Company under the
Investment Company Act;
provided, however, that in the case of clause (i), such action shall
not adversely affect in any material respect the interests of the
Holders of the Securities, and any amendments of this Declaration
shall become effective when notice thereof is given to the Holders of
the Securities.
SECTION 12.2 Meetings of the Holders of Securities; Action by
Written Consent.
a. Meetings of the Holders of any class of Securities may
be called at any time by the Administrative Trustees (or as provided
in the terms of the Securities) to consider and act on any matter on
which Holders of such class of Securities are entitled to act under
the terms of this Declaration, the terms of the Securities or the
rules of any stock exchange on which the Capital Securities are listed
or admitted for trading. The Administrative Trustees shall call a
meeting of the Holders of such class if directed to do so by the
Holders of at least 10% in liquidation amount of such class of
Securities. Such direction shall be given by delivering to the
Administrative Trustees one or more notices in a writing stating that
the signing Holders of Securities wish to call a meeting and
indicating the general or specific purpose for which the meeting is to
be called. Any Holders of Securities calling a meeting shall specify
in writing the Security certificates held by the Holders of Securities
exercising the right to call a meeting and only those Securities
specified shall be counted for purposes of determining whether the
required percentage set forth in the second sentence of this paragraph
has been met.
b. Except to the extent otherwise provided in the terms of
the Securities, the following provisions shall apply to meetings of
Holders of Securities:
(i) notice of any such meeting shall be given to all
the Holders of Securities having a right to vote thereat at least
seven days and not more than 60 days before the date of such
meeting. Whenever a vote, consent or approval of the Holders of
Securities is permitted or required under this Declaration or the
rules of any stock exchange on which the Capital Securities are
listed or admitted for trading, such vote, consent or approval
may be given at a meeting of the Holders of Securities. Any
action that may be taken at a meeting of the Holders of
Securities may be taken without a meeting if a consent in writing
setting forth the action so taken is signed by the Holders of
Securities owning not less than the minimum amount of Securities
in liquidation amount that would be necessary to authorize or
take such action at a meeting at which all Holders of Securities
having a right to vote thereon were present and voting. Prompt
notice of the taking of action without a meeting shall be given
to the Holders of Securities entitled to vote who have not
consented in writing. The Administrative Trustees may specify
that any written ballot submitted to the Security Holder for the
purpose of taking any action without a meeting shall be returned
to the Trust within the time specified by the Administrative
Trustees;
(ii) each Holder of a Security may authorize any
Person to act for it by proxy on all matters in which a Holder of
Securities is entitled to participate, including waiving notice
of any meeting, or voting or participating at a meeting. No proxy
shall be valid after the expiration of 11 months from the date
thereof unless otherwise provided in the proxy. Every proxy shall
be revocable at the pleasure of the Holder of Securities
executing it. Except as otherwise provided herein, all matters
relating to the giving, voting or validity of proxies shall be
governed by the General Corporation Law of the State of Delaware
relating to proxies, and judicial interpretations thereunder, as
if the Trust were a Delaware corporation and the Holders of the
Securities were stockholders of a Delaware corporation;
(ii) each meeting of the Holders of the Securities
shall be conducted by the Administrative Trustees or by such
other Person that the Administrative Trustees may designate; and
(iii) unless the Business Trust Act, this
Declaration, the terms of the Securities, the Trust Indenture Act
or the listing rules of any stock exchange on which the Capital
Securities are then listed or trading, otherwise provides, the
Administrative Trustees, in their sole discretion, shall
establish all other provisions relating to meetings of Holders of
Securities, including notice of the time, place or purpose of any
meeting at which any matter is to be voted on by any Holders of
Securities, waiver of any such notice, action by consent without
a meeting, the establishment of a record date, quorum
requirements, voting in person or by proxy or any other matter
with respect to the exercise of any such right to vote.
ARTICLE XIII
REPRESENTATIONS OF PROPERTY TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of Property Trustee.
The Trustee that acts as initial Property Trustee represents
and warrants to the Trust and to the Sponsor at the date of this
Declaration, and each Successor Property Trustee represents and
warrants to the Trust and the Sponsor at the time of the Successor
Property Trustee's acceptance of its appointment as Property Trustee
that:
a. The Property Trustee is a New York banking corporation
with trust powers and authority to execute and deliver, and to carry
out and perform its obligations under the terms of, this Declaration;
b. The execution, delivery and performance by the Property
Trustee of this Declaration has been duly authorized by all necessary
corporate action on the part of the Property Trustee. This Declaration
has been duly executed and delivered by the Property Trustee and
constitutes a legal, valid and binding obligation of the Property
Trustee, enforceable against it in accordance with its terms, subject
to applicable bankruptcy, reorganization, moratorium, insolvency, and
other similar laws affecting creditors' rights generally and to
general principles of equity and the discretion of the court
(regardless of whether the enforcement of such remedies is considered
in a proceeding in equity or at law);
c. The execution, delivery and performance of this
Declaration by the Property Trustee does not conflict with or
constitute a breach of the charter or by-laws of the Property Trustee;
and
d. No consent, approval or authorization of, or
registration with or notice to, any New York State or federal banking
authority is required for the execution, delivery or performance by
the Property Trustee of this Declaration.
SECTION 13.2 Representations and Warranties of Delaware Trustee.
The Trustee that acts as initial Delaware Trustee represents
and warrants to the Trust and to the Sponsor at the date of this
Declaration, and each Successor Delaware Trustee represents and
warrants to the Trust and the Sponsor at the time of the Successor
Delaware Trustee's acceptance of its appointment as Delaware Trustee
that:
a. The Delaware Trustee is duly organized, validly
existing and in good standing under the laws of the State of Delaware,
with trust power and authority to execute and deliver, and to carry
out and perform its obligations under the terms of, this Declaration:
b. The execution, delivery and performance by the Delaware
Trustee of this Declaration has been duly authorized by all necessary
corporate action on the part of the Delaware Trustee. This Declaration
has been duly executed and delivered by the Delaware Trustee and
constitutes a legal, valid and binding obligation of the Delaware
Trustee, enforceable against it in accordance with its terms, subject
to applicable bankruptcy, reorganization, moratorium, insolvency, and
other similar laws affecting creditors' rights generally and to
general principles of equity and the discretion of the court
(regardless of whether the enforcement of such remedies is considered
in a proceeding in equity or at law);
c. No consent, approval or authorization of, or
registration with or notice to, any federal or Delaware banking
authority is required for the execution, delivery or performance by
the Delaware Trustee of this Declaration; and
d. The Delaware Trustee is a natural person who is a
resident of the State of Delaware or, if not a natural person, an
entity which has its principal place of business in the State of
Delaware.
ARTICLE IV
REGISTRATION RIGHTS
SECTION 14.1 Registration Rights Agreement; Liquidated Damages.
The Holders of the Series A Capital Securities, the Series A
Debentures and the Series A Capital Securities Guarantee
(collectively, the "Registrable Securities") are entitled to the
benefits of the Registration Rights Agreement. Subject to the
provisions of the Registration Rights Agreement, the Sponsor and the
Trust have agreed for the benefit of the Holders of Registrable
Securities that: (i) they will, at the Sponsor's cost, within 150
days after January 28, 1997 (the "Issue Date"), file a registration
statement (the "Exchange Registration Statement") relating an Exchange
Offer pursuant to which each issuer of such respective Registrable
Securities would issue amounts of such Registrable Securities as are
accepted in the Exchange Offer which shall be identical in all
respects to those exchanged, except they will have been registered
under the Securities Act and will no longer be subject to transfer
restrictions under the Securities Act or the $100,000 minimum
aggregate principal or liquidation amount transfer restriction and, if
required pursuant to the terms of the Registration Rights Agreement,
file a shelf registration statement (the "Shelf Registration
Statement") with the Commission with respect to resales of the
Registrable Securities, (ii) they will use their best efforts to cause
such Exchange Registration Statement and/or Shelf Registration
Statement, as the case requires, to be declared effective by the
Commission within 180 days after the Issue Date and (iii) they will
use their best efforts to maintain the Shelf Registration Statement,
if any, continuously effective under the Securities Act until the
third anniversary of the effectiveness of the Shelf Registration
Statement or such earlier date as is provided in the Registration
Rights Agreement (the "Effectiveness Period"). All references herein
to such Registrable Securities shall be deemed to include, as the
context may require, the Registrable Securities into which such
Securities have been exchanged pursuant to the Exchange Offer
("Exchange Securities") and all reference to numbers or amounts of
such Securities shall be deemed to include, as the context may
require, such Exchanged Securities. Capitalized terms used in this
Article XIV but not otherwise defined herein shall have the meanings
ascribed to such terms in the Registration Rights Agreement.
If (i) (A) neither the Exchange Offer Registration Statement
nor a Shelf Registration Statement is filed with the Commission on or
prior to the 150th day after the Issue Date or (B) notwithstanding
that the Debenture Issuer and the Trust have consummated or will
consummate an Exchange Offer, the Debenture Issuer and the Trust are
required to file a Shelf Registration Statement and such Shelf
Registration Statement is not filed on or prior to the date required
by the Registration Rights Agreement, then commencing on the day after
the applicable required filing date, additional Distributions shall
accumulate on the liquidation amount of the Capital Securities at a
rate of 0.25% per annum; or
a. (ii) (A) neither the Exchange Offer Registration
Statement nor a Shelf Registration Statement is declared
effective by the Commission on or prior to the 30th day after the
applicable required filing date or (B) notwithstanding that the
Debenture Issuer and the Trust have consummated or will
consummate an Exchange Offer, the Debenture Issuer and the Trust
are required to file a Shelf Registration Statement and such
Shelf Registration Statement is not declared effective by the
Commission on or prior to the 30th day after the date such Shelf
Registration Statement was required to be filed, then, commencing
on the 31st day after the applicable required filing date,
additional Distributions shall accumulate on the liquidation
amount of the Capital Securities at a rate of 0.25% per annum; or
(iii) (A) the Trust has not accepted for exchange
Exchange Capital Securities for all Capital Securities validly
tendered or the Debenture Issuer has not accepted for exchange
the Exchange Guarantee or Exchange Subordinated Debentures for
the Guarantee or all Subordinated Debentures validly tendered, in
accordance with the terms of the Exchange Offer on or prior to
the 30th day after the date on which the Exchange Offer
Registration Statement was declared effective or (B) if
applicable, the Shelf Registration Statement has been declared
effective and such Shelf Registration Statement ceases to be
effective at any time prior to the third anniversary of the Issue
Date (other than after such time as all Capital Securities have
been disposed of thereunder or otherwise cease to be Registrable
Securities), additional Distributions shall accumulate on the
liquidation amount of the Capital Securities at a rate of 0.25%
per annum commencing on (x) the 31st day after such effective
date, in the case of (A) above, or (y) the day such Shelf
Registration Statement ceases to be effective in the case of (B)
above;
provided, however, that the additional Distributions rate on the
liquidation amount of the Capital Securities may not exceed in the
aggregate 0.25% per annum; provided, further, however, that upon (1)
the filing of the Exchange Offer Registration Statement or a Shelf
Registration Statement (in the case of clause (i) above), (2) the
effectiveness of the Exchange Offer Registration Statement or a Shelf
Registration Statement (in the case of clause (ii) above), or (3) the
acceptance for exchange of Exchange Capital Securities, the Exchange
Guarantee and the Exchange Subordinated Debentures for all Capital
Securities, the Guarantee and the Subordinated Debentures validly
tendered (in the case of clause (iii)(A) above), or upon the
effectiveness of the Shelf Registration Statement which had ceased to
remain effective (in the case of clause (iii)(B) above), additional
Distributions on the liquidation amount of the Capital Securities as a
result of such clause (or the relevant subclause thereof), as the case
may be, shall cease to accumulate.
Any amounts of additional Distributions due pursuant to
clauses (i), (ii) or (iii) above will be payable in cash on January 31
and July 31 of each year to the Holders on the fifteenth day of the
month in which the relevant Distribution date falls.
ARTICLE XV
MISCELLANEOUS
SECTION 15.1 Notices.
All notices provided for in this Declaration shall be in
writing, duly signed by the party giving such notice, and shall be
delivered, telecopied or mailed by first class mail, as follows:
a. if given to the Trust, in care of the Administrative
Trustees at the Trust's mailing address set forth below (or such other
address as the Trust may give notice of to the Holders of the
Securities):
First of America Capital Trust I
c/o First of America Bank Corporation
211 South Rose Street
Kalamazoo, Michigan 49007
Attention: Samuel G. Stone
b. if given to the Delaware Trustee, at the mailing
address set forth below (or such other address as Delaware Trustee may
give notice of to the Holders of the Securities):
The Bank of New York (Delaware)
White Clay Center
Route 273
Newark, Delaware 19711
Attention: Corporate Trust Department
c. if given to the Property Trustee, at the Property
Trustee's mailing address set forth below (or such other address as
the Property Trustee may give notice of to the Holders of the
Securities):
The Bank of New York
101 Barclay Street, 21 West
New York, New York 10286
Attention: Corporate Trust Trustee Administration
d. if given to the Holder of the Common Securities, at the
mailing address of the Sponsor set forth below (or such other address
as the Holder of the Common Securities may give notice to the Trust):
First of America Bank Corporation
211 South Rose Street
Kalamazoo, Michigan 49007
Attention: Samuel G. Stone
e. if given to any other Holder, at the address set forth
on the books and records of the Trust.
All such notices shall be deemed to have been given when
received in person, telecopied with receipt confirmed, or mailed by
first class mail, postage prepaid except that if a notice or other
document is refused delivery or cannot be delivered because of a
changed address of which no notice was given, such notice or other
document shall be deemed to have been delivered on the date of such
refusal or inability to deliver.
SECTION 15.2 Governing Law.
This Declaration and the rights of the parties hereunder
shall be governed by and interpreted in accordance with the laws of
the State of Delaware and all rights and remedies shall be governed by
such laws without regard to principles of conflict of laws.
SECTION 15.3 Intention of the Parties.
It is the intention of the parties hereto that the Trust be
classified for United States federal income tax purposes as a grantor
trust. The provisions of this Declaration shall be interpreted to
further this intention of the parties.
SECTION 15.4 Headings.
Headings contained in this Declaration are inserted for
convenience of reference only and do not affect the interpretation of
this Declaration or any provision hereof.
SECTION 15.5 Successors and Assigns.
Whenever in this Declaration any of the parties hereto is
named or referred to, the successors and assigns of such party shall
be deemed to be included, and all covenants and agreements in this
Declaration by the Sponsor and the Trustees shall bind and inure to
the benefit of their respective successors and assigns, whether so
expressed.
SECTION 15.6 Partial Enforceability.
If any provision of this Declaration, or the application of
such provision to any Person or circumstance, shall be held invalid,
the remainder of this Declaration, or the application of such
provision to Persons or circumstances other than those to which it is
held invalid, shall not be affected thereby.
SECTION 15.7 Counterparts.
This Declaration may contain more than one counterpart of
the signature page and this Declaration may be executed by the
affixing of the signature of each of the Trustees to one of such
counterpart signature pages. All of such counterpart signature pages
shall be read as though one, and they shall have the same force and
effect as though all of the signers had signed a single signature
page.
IN WITNESS WHEREOF, the undersigned has caused this
Declaration to be duly executed as of the day and year first above
written.
FIRST OF AMERICA BANK CORPORATION,
as Sponsor
By: /s/ Samuel G. Stone
Name:
Title:
THE BANK OF NEW YORK,
as Property Trustee
By: /s/ Mary Jane Morrissey
Name: MARY JANE MORRISSEY
Title: VICE PRESIDENT
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By: /s/ Joseph G. Ernst
Name: Joseph G. Ernst
Title: Assistant Vice President
THOMAS W. LAMBERT,
as Administrative Trustee
By: /s/ Thomas W. Lambert
SAMUEL G. STONE,
as Administrative Trustee
By: /s/ Samuel G. Stone
JOHN H. MINER,
as Administrative Trustee
By: /s/ John H. Miner
ANNEX I
TERMS OF
8.12% CAPITAL SECURITIES, SERIES A/SERIES B
8.12% COMMON SECURITIES
Pursuant to Section 7.1 of the Amended and Restated Declaration
of Trust, dated as of January 28, 1997 (as amended from time to time,
the "Declaration"), the designation, rights, privileges, restrictions,
preferences and other terms and provisions of the Capital Securities
and the Common Securities (collectively, the "Securities") are set out
below (each capitalized term used but not defined herein has the
meaning set forth in the Declaration or, if not defined in such
Declaration, as defined in the Offering Memorandum referred to below
in Section 2(c) of this Annex I):
1. Designation and Number.
a. Capital Securities. 150,000 Series A Capital
Securities of the Trust and 150,000 Series B Capital Securities of the
Trust, each series with an aggregate liquidation amount with respect
to the assets of the Trust of one hundred fifty million dollars
($150,000,000), as provided in the Purchase Agreement, and each with a
liquidation amount with respect to the assets of the Trust of $1,000
per Security, are hereby designated for the purposes of identification
only as "8.12% Capital Securities, Series A" and "8.12% Capital
Securities, Series B", respectively (collectively, the "Capital
Securities"). The certificates evidencing the Capital Securities shall
be substantially in the form of Exhibit A-1 to the Declaration, with
such changes and additions thereto or deletions therefrom as may be
required by ordinary usage, custom or practice or to conform to the
rules of any stock exchange on which the Capital Securities are
listed.
b. Common Securities. 4,640 Common Securities of the
Trust with an aggregate liquidation amount with respect to the assets
of the Trust of four million six hundred forty thousand dollars
($4,640,000) and a liquidation amount with respect to the assets of
the Trust of $1,000 per Security, are hereby designated for the
purposes of identification only as "8.12% Common Securities" (the
"Common Securities"). The certificates evidencing the Common
Securities shall be substantially in the form of Exhibit A-2 to the
Declaration, with such changes and additions thereto or deletions
therefrom as may be required by ordinary usage, custom or practice.
2. Distributions.
a. Distributions payable on each Security shall be
fixed at a rate per annum of 8.12% (the "Coupon Rate") of the
liquidation amount of $1,000 per Security (the "Liquidation Amount"),
such rate being the rate of interest payable on the Debentures to be
held by the Property Trustee. Distributions in arrears for more than
one semi-annual period shall bear additional Distributions thereon
compounded semi-annually at the Coupon Rate (to the extent permitted
by applicable law). Pursuant to the Registration Rights Agreement, in
certain limited circumstances the Debenture Issuer shall be required
to pay Liquidated Damages (as defined in the Registration Rights
Agreement) with respect to the Debentures. The term "Distributions",
as used herein, includes distributions of any such interest and
Liquidated Damages payable unless otherwise stated. A Distribution
shall be payable only to the extent that payments are made in respect
of the Debentures held by the Property Trustee and to the extent the
Property Trustee has funds on hand legally available therefor.
b. Distributions on the Securities shall be cumulative, shall
accumulate from the most recent date to which Distributions have been
paid or, if no Distributions have been paid, from January 28, 1997,
and shall be payable semi-annually in arrears on January 31 and July
31 of each year, commencing on July 31, 1997 (each, a "Distribution
Date"), except as otherwise described below. Distributions shall be
computed on the basis of a 360-day year consisting of twelve 30-day
months and for any period less than a full calendar month on the basis
of the actual number of days elapsed in such month. As long as no
Event of Default has occurred and is continuing under the Indenture,
the Debenture Issuer has the right under the Indenture to defer
payments of interest by extending the interest payment period at any
time and from time to time on the Debentures for a period not
exceeding 10 consecutive semi-annual periods, including the first such
semi-annual period during such period (each an "Extension Period"),
during which Extension Period no interest shall be due and payable on
the Debentures, provided that no Extension Period shall extend beyond
the Maturity Date of the Debentures. As a consequence of such
deferral, Distributions shall also be deferred. Despite such deferral,
Distributions shall continue to accumulate with additional
Distributions thereon (to the extent permitted by applicable law but
not at a rate greater than the rate at which interest is then accruing
on the Debentures) at the Coupon Rate compounded semi-annually during
any such Extension Period. The Debenture Issuer may further defer
payments of interest by further extending any existing Extension
Period; provided that such Extension Period, together with all such
previous and further extensions within such Extension Period, may not
exceed 10 consecutive semi-annual periods, including the first
semi-annual period during such Extension Period, or extend beyond the
Maturity Date of the Debentures. Upon the termination of any Extension
Period and the payment of all amounts then due, the Debenture Issuer
may commence a new Extension Period, subject to the above
requirements.
c. Distributions on the Securities shall be payable
to the Holders thereof as they appear on the books and records of the
Trust on the fifteenth day of the month in which the relevant
Distribution Date occurs, which Distribution Dates correspond to the
interest payment dates on the Debentures. Subject to any applicable
laws and regulations and the provisions of the Declaration, each such
payment in respect of the Capital Securities shall be made as
described under the heading "Description of the Capital Securities --
Form, Denomination, Book-Entry Procedures and Transfer" in the
Offering Memorandum dated January 21, 1997, of the Debenture Issuer
and the Trust relating to the Securities and the Debentures. The
relevant record dates for the Common Securities shall be the same as
the record dates for the Capital Securities. Distributions payable on
any Securities that are not punctually paid on any Distribution Date,
as a result of the Debenture Issuer having failed to make a payment
under the Debentures, shall cease to be payable to the Holder on the
relevant record date, and such defaulted Distribution shall instead be
payable to the Person in whose name such Securities are registered on
the special record date or other specified date determined in
accordance with the Indenture. If any date on which Distributions are
payable on the Securities is not a Business Day, then payment of the
Distribution payable on such date 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), with the same force and effect as if
made on such date.
d. In the event that there is any money or other
property held by or for the Trust that is not accounted for hereunder,
such property shall be distributed Pro Rata (as defined herein) among
the Holders of the Securities.
3. Liquidation Distribution Upon Termination.
In the event of any termination of the Trust or the Sponsor
otherwise gives notice of its election to liquidate the Trust pursuant
to Section 8.1(a)(iii) of the Declaration, the Trust shall be
liquidated by the Administrative Trustees as expeditiously as the
Administrative Trustees determine to be possible by distributing,
after satisfaction of liabilities to creditors of the Trust as
provided by applicable law, to the Holders of the Securities a Like
Amount (as defined below) of the Debentures, unless such distribution
is determined by the Property Trustee not to be practicable, in which
event such Holders shall be entitled to receive out of the assets of
the Trust legally available for distribution to Holders, after
satisfaction of liabilities to creditors of the Trust as provided by
applicable law, an amount equal to the aggregate of the liquidation
amount of $1,000 per Security plus accumulated and unpaid
Distributions thereon to the date of payment (such amount being the
"Liquidation Distribution").
"Like Amount" means (i) with respect to a redemption of the
Securities, Securities having a Liquidation Amount equal to the
principal amount of Debentures to be paid in accordance with their
terms and (ii) with respect to a distribution of Debentures upon the
liquidation of the Trust, Debentures having a principal amount equal
to the Liquidation Amount of the Securities of the Holder to whom such
Debentures are distributed.
If, upon any such liquidation, the Liquidation Distribution can
be paid only in part because the Trust has insufficient assets on hand
legally available to pay in full the aggregate Liquidation
Distribution, then the amounts payable directly by the Trust on the
Securities shall be paid on a Pro Rata basis.
4. Redemption and Distribution.
a. Upon the repayment of the Debentures in whole or
in part, at maturity or upon early redemption (either at the option of
the Debenture Issuer or pursuant to a Special Event, as described
below), the proceeds from such repayment shall be simultaneously
applied by the Property Trustee (subject to the Property Trustee
having received notice no later than 45 days prior to such repayment)
to redeem a Like Amount of the Securities at a redemption price equal
to (i) in the case of the repayment of the Debentures at maturity, the
Maturity Redemption Price (as defined below), (ii) in the case of the
optional redemption of the Debentures upon the occurrence and
continuation of a Special Event prior to January 31, 2007, the Special
Event Redemption Price (as defined below) and (iii) in the case of the
optional redemption of the Debentures on or after January 31, 2007,
the Optional Redemption Price (as defined below). The Maturity
Redemption Price, the Special Event Redemption Price and the Optional
Redemption Price are referred to collectively as the "Redemption
Price". Holders shall be given not less than 30 nor more than 60 days
prior written notice of such redemption.
B. (i) The "Maturity Redemption Price", with respect to a
redemption of Securities, shall mean an amount equal to the principal
of and accrued interest on the Debentures as of the maturity date
thereof.
(ii) In the case of an optional redemption, if fewer
than all the outstanding Securities are to be so redeemed, the Common
Securities and the Capital Securities shall be redeemed Pro Rata and
the Capital Securities to be redeemed shall be determined as described
in Section 4(f)(ii) below. Upon the entry of an order for the
dissolution of the Trust by a court of competent jurisdiction, the
Debentures thereafter will be subject to optional repayment, in whole,
but not in part, on or after January 31, 2007.
The Debenture Issuer shall have the right (subject to the
conditions in the Indenture) to elect to redeem the Debentures in
whole or in part at any time on or after January 31, 2007 (the
"Initial Optional Redemption Date"), upon not less than 30 days and
not more than 60 days notice, and, simultaneous with such redemption,
to cause a Like Amount of the Securities to be redeemed by the Trust
at the Optional Redemption Price on a Pro Rata basis. "Optional
Redemption Price" shall mean a price equal to the percentage of the
liquidation amount of Securities to be redeemed plus accumulated and
unpaid Distributions thereon, if any, to the date of such redemption
if redeemed during the 12 month period beginning January 31 of the
years indicated below:
Year ercentage
2007 . . . . . . . . . . 104.060%
2008 . . . . . . . . . . 103.654%
2009 . . . . . . . . . . 103.248%
2010 . . . . . . . . . . 102.842%
2011 . . . . . . . . . . 102.436%
2012 . . . . . . . . . . 102.030%
2013 . . . . . . . . . . 101.624%
2014 . . . . . . . . . . 101.218%
2015 . . . . . . . . . . 100.812%
2016 . . . . . . . . . . 100.406%
2017 and thereafter . . . . . 100.000%
c. If at any time a Tax Event or a Regulatory Capital Event (as
such terms are defined below, and each, a "Special Event") occurs
prior to the Initial Optional Redemption Date, the Debenture Issuer
shall have the right (subject to the conditions set forth in the
Indenture) upon not less than 30 nor more than 60 days prior written
notice, to redeem the Debentures in whole, but not in part, within the
90 days following the occurrence of such Special Event (the "90 Day
Period"), and, simultaneous with such redemption, to cause a Like
Amount of the Securities to be redeemed by the Trust at the Special
Event Redemption Price on a Pro Rata basis.
"Tax Event" shall occur upon receipt by the Debenture Issuer and
an Administrative Trustee of an opinion of counsel experienced in such
matters to the effect that, as a result of any amendment to, or change
(including any announced prospective change) in, the laws or any
regulations thereunder of the United States or any political
subdivision or taxing authority thereof or therein, or as a result of
any official administrative pronouncement or judicial decision
interpreting or applying such laws or regulations, which amendment or
change is effective or which pronouncement or decision is announced on
or after January 28, 1997, there is more than an insubstantial risk
that (i) the Trust is, or will be within 90 days of the date of such
opinion, subject to United States federal income tax with respect to
income received or accrued on the Debentures, (ii) the interest
payable by the Debenture Issuer on the Debentures is not, or within 90
days of the date of such opinion, will not be, deductible by the
Debenture Issuer, in whole or in part, for United States federal
income tax purposes or (iii) the Trust is, or will be within 90 days
of the date of such opinion, subject to more than a de minimis amount
of other taxes, duties or other governmental charges.
"Regulatory Capital Event" shall mean that the Debenture Issuer
shall have received an opinion of independent bank regulatory counsel
experienced in such matters to the effect that, as a result of (a) any
amendment to, or change (including any announced prospective change)
in, the laws (or any regulations thereunder) of the United States or
any rules, guidelines or policies of the Federal Reserve Board or (b)
any official administrative pronouncement or judicial decision
interpreting or applying such laws or regulations, which amendment or
change is effective or which pronouncement or decision is announced on
or after January 28, 1997, the Capital Securities do not constitute,
or within 90 days of the date thereof, will not constitute, Tier I
Capital (or its then equivalent); provided, however, that the
distribution of the Debentures in connection with the termination of
the Trust by the Debenture Issuer shall not in and of itself
constitute a Regulatory Capital Event unless such termination shall
have occurred in connection with a Tax Event.
"Special Event Redemption Price" shall mean a price equal to the
greater of (i) 100% of the liquidation amount of Securities to be
redeemed or (ii) the sums as determined by a Quotation Agent (as
defined in the Indenture), of the present values of the liquidation
amount and premium payable with respect to an optional redemption of
Securities on the Initial Optional Redemption Date, together with
scheduled payments of Distributions from the redemption date to and
including the Initial Optional Redemption Date, discounted to the
redemption date on a semi-annual basis (assuming a 360-day year
consisting of twelve 30-day months) at the Adjusted Treasury Rate (as
defined in the Indenture), plus, in each case, accumulated and unpaid
Distributions thereon, if any, to the date of such redemption.
d. On and from the date fixed by the Administrative Trustees
for any distribution of Debentures and liquidation of the Trust: (i)
the Securities will no longer be deemed to be outstanding, (ii) the
Clearing Agency or its nominee (or any successor Clearing Agency or
its nominee), as the Holder of the Capital Securities, shall receive a
registered global certificate or certificates representing the
Debentures to be delivered upon such distribution and any certificates
representing Securities not held by the Clearing Agency or its nominee
(or any successor Clearing Agency or its nominee) shall be deemed to
represent beneficial interests in a Like Amount of Debentures until
such certificates are presented to the Debenture Issuer or its agent
for transfer or reissue.
e. The Trust may not redeem fewer than all the outstanding
Securities unless all accumulated and unpaid Distributions have been
paid on all Securities for all semi-annual Distribution periods
terminating on or before the date of redemption.
f. The procedure with respect to redemptions or distributions
of Debentures shall be as follows:
(i) Notice of any redemption of, or notice of distribution
of Debentures in exchange for, the Securities (a
"Redemption/Distribution Notice") shall be given by the Trust by
mail to each Holder of Securities to be redeemed or exchanged not
fewer than 30 nor more than 60 days before the date fixed for
redemption or exchange thereof which, in the case of a
redemption, shall be the date fixed for redemption of the
Debentures. For purposes of the calculation of the date of
redemption or exchange and the dates on which notices are given
pursuant to this Section 4(f)(i), a Redemption/Distribution
Notice shall be deemed to be given on the day such notice is
first mailed by first-class mail, postage prepaid, to Holders of
Securities. Each Redemption/Distribution Notice shall be
addressed to the Holders of Securities at the address of each
such Holder appearing in the books and records of the Trust. No
defect in the Redemption/Distribution Notice or in the mailing of
either thereof with respect to any Holder shall affect the
validity of the redemption or exchange proceedings with respect
to any other Holder.
(ii) In the event that fewer than all the outstanding
Securities are to be redeemed, the Securities to be redeemed
shall be redeemed Pro Rata from each Holder of Capital
Securities, it being understood that, in respect of Capital
Securities registered in the name of and held of record by the
Clearing Agency or its nominee (or any successor Clearing Agency
or its nominee) or any nominee, the distribution of the proceeds
of such redemption shall be made to the Clearing Agency and
disbursed by such Clearing Agency in accordance with the
procedures applied by such agency or nominee.
(iii) If Securities are to be redeemed and the Trust gives a
Redemption/Distribution Notice, (which notice shall be
irrevocable), then (A) with respect to Capital Securities issued
in book-entry form, by 12:00 noon, New York City time, on the
redemption date, provided that the Debenture Issuer has paid the
Property Trustee a sufficient amount of cash in connection with
the related redemption or maturity of the Debentures by 10:00
a.m., New York City time, on the maturity date or the date of
redemption, as the case requires, the Property Trustee shall
deposit irrevocably with the Clearing Agency or its nominee (or
successor Clearing Agency or its nominee) immediately available
funds sufficient to pay the applicable Redemption Price with
respect to such Capital Securities and shall give the Clearing
Agency irrevocable instructions and authority to pay the
Redemption Price to the relevant Clearing Agency Participants,
and (B) with respect to Capital Securities issued in certificated
form and Common Securities, provided that the Debenture Issuer
has paid the Property Trustee a sufficient amount of cash in
connection with the related redemption or maturity of the
Debentures, the Property Trustee shall pay the relevant
Redemption Price to the Holders of such Securities by check
mailed to the address of the relevant Holder appearing on the
books and records of the Trust on the redemption date. If a
Redemption/Distribution Notice shall have been given and funds
deposited as required, if applicable, then immediately prior to
the close of business on the date of such deposit, or on the
redemption date, as applicable, Distributions shall cease to
accumulate on the Securities so called for redemption and all
rights of Holders of such Securities so called for redemption
shall cease, except the right of the Holders of such Securities
to receive the Redemption Price, but without interest on such
Redemption Price, and such Securities shall cease to be
outstanding.
(iv) Payment of accumulated and unpaid Distributions on the
Redemption Date of the Securities shall be subject to the rights
of Holders of Securities on the close of business on a regular
record date in respect of a Distribution Date occurring on or
prior to such Redemption Date.
(v) Neither the Administrative Trustees nor the Trust shall
be required to register or cause to be registered the transfer of
(i) any Securities beginning on the opening of business 15 days
before the day of mailing of a notice of redemption or any notice
of selection of Securities for redemption or (ii) any Securities
selected for redemption except the unredeemed portion of any
Security being redeemed. If any date fixed for redemption of
Securities 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), with the same force and
effect as if made on such date fixed for redemption. If payment
of the Redemption Price in respect of any Securities is
improperly withheld or refused and not paid either by the
Property Trustee or by the Sponsor as guarantor pursuant to the
relevant Securities Guarantee, Distributions on such Securities
shall continue to accumulate from the original redemption date to
the actual date of payment, in which case the actual payment date
shall be considered the date fixed for redemption for purposes of
calculating the Redemption Price.
(vi) Redemption/Distribution Notices shall be sent by the
Property Trustee on behalf of the Trust (A) in respect of Capital
Securities issued in book-entry form, to the Clearing Agency or
its nominee (or any successor Clearing Agency or its nominee),
(B) in respect of Capital Securities issued in certificated form,
to the Holders thereof, and (C) in respect of the Common
Securities, to the Holders thereof.
(vii) Subject to the foregoing and applicable law (including,
without limitation, United States federal securities laws and
banking laws and to the provisions contained in the Purchase
Agreement), the Sponsor or any of its subsidiaries may at any
time and from time to time purchase outstanding Capital
Securities by tender, in the open market or by private agreement.
5. Voting Rights - Capital Securities.
a. Except as provided under Sections 5(b) and 7 and as
otherwise required by law and the Declaration, the Holders of the
Capital Securities shall have no voting rights.
b. So long as any Debentures are held by the Property Trustee,
the Trustees shall not (i) direct the time, method and place of
conducting any proceeding for any remedy available to the Debenture
Trustee, or executing any trust or power conferred on such Debenture
Trustee with respect to the Debentures, (ii) waive any past default
that is waivable under Section 5.07 of the Indenture, (iii) exercise
any right to rescind or annul a declaration of acceleration of the
maturity of the principal of the Debentures 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 a Majority in
liquidation amount of all outstanding Capital Securities; provided,
however, that where a consent under the Indenture would require the
consent of each holder of Debentures affected thereby, no such consent
shall be given by the Property Trustee without the prior approval of
each Holder of the Capital Securities. The Trustees shall not revoke
any action previously authorized or approved by a vote of the Holders
of the Capital Securities except by subsequent vote of such Holders.
The Property Trustee shall notify each Holder of Capital Securities of
any notice of default with respect to the Debentures. In addition to
obtaining the foregoing approvals of such Holders of the Capital
Securities, prior to taking any of the foregoing actions, the Trustees
shall obtain an opinion of counsel experienced in such matters to the
effect that the Trust shall not be classified as an association
taxable as a corporation for United States federal income tax purposes
on account of such action.
If an Event of Default under the Declaration has occurred and is
continuing and such event is attributable to the failure of the
Debenture Issuer to pay principal of or premium, if any, or interest
on the Debentures on the due date (or in the case of redemption, on
the redemption date), then a Holder of Capital Securities may directly
institute a proceeding for enforcement of payment to such Holder of
the principal of or premium, if any, or interest on a Like Amount of
Debentures (a "Direct Action") on or after the respective due date
specified in the Debentures. In connection with such Direct Action,
the rights of the Common Securities Holder shall be subrogated to the
rights of such Holder of Capital Securities to the extent of any
payment made by the Debenture Issuer to such Holder of Capital
Securities in such Direct Action. Except as provided in the second
preceding sentence, the Holders of Capital Securities shall not be
able to exercise directly any other remedy available to the holders of
the Debentures.
Any approval or direction of Holders of Capital Securities may be
given at a separate meeting of Holders of Capital Securities convened
for such purpose, at a meeting of all of the Holders of Securities in
the Trust or pursuant to written consent. The Property Trustee shall
cause a notice of any meeting at which Holders of Capital Securities
are entitled to vote, or of any matter upon which action by written
consent of such Holders is to be taken, to be mailed to each Holder of
record of Capital Securities. Each such notice shall include a
statement setting forth (i) the date of such meeting or the date by
which such action is to be taken, (ii) a description of any resolution
proposed for adoption at such meeting on which such Holders are
entitled to vote or of such matter upon which written consent is
sought and (iii) instructions for the delivery of proxies or consent.
No vote or consent of the Holders of the Capital Securities shall
be required for the Trust to redeem and cancel Capital Securities or
to distribute the Debentures in accordance with the Declaration and
the terms of the Securities.
Notwithstanding that Holders of Capital Securities are entitled
to vote or consent under any of the circumstances described above any
of the Capital Securities that are owned by the Sponsor or any
Affiliate of the Sponsor shall not be entitled to vote or consent and
shall, for purposes of such vote or consent, be treated as if they
were not outstanding.
6. Voting Rights - Common Securities.
a. Except as provided under Sections 6(b), 6(c), and 7 as
otherwise required by law and the Declaration, the Holders of the
Common Securities shall have no voting rights.
b. Unless a Debenture Event of Default shall have occurred and
be continuing, any Trustee may be removed at any time by the Holder of
the Common Securities. If a Debenture Event of Default has occurred
and is continuing, the Property Trustee and the Delaware Trustee may
be removed at such time by the Holders of a Majority in liquidation
amount of the outstanding Capital Securities. In no event shall the
Holders of the Capital Securities have the right to vote to appoint,
remove or replace the Administrative Trustees, which voting rights are
vested exclusively in the Sponsor as the holder of the Common
Securities. No resignation or removal of a Trustee and no appointment
of a successor trustee shall be effective until the acceptance of
appointment by the successor trustee in accordance with the provisions
of the Declaration.
c. So long as any Debentures are held by the Property Trustee,
the Trustees shall not (i) direct the time, method and place of
conducting any proceeding for any remedy available to the Debenture
Trustee, or executing any trust or power conferred on such Debenture
Trustee with respect to the Debentures, (ii) waive any past default
that is waivable under Section 5.07 of the Indenture, (iii) exercise
any right to rescind or annul a declaration of acceleration of the
maturity of the principal of the Debentures 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 a Majority in
liquidation amount of all outstanding Common Securities; provided,
however, that where a consent under the Indenture would require the
consent of each holder of Debentures affected thereby, no such consent
shall be given by the Property Trustee without the prior approval of
each Holder of the Common Securities. The Trustees shall not revoke
any action previously authorized or approved by a vote of the Holders
of the Common Securities except by subsequent vote of such Holders.
The Property Trustee shall notify each Holder of Common Securities of
any notice of default with respect to the Debentures. In addition to
obtaining the foregoing approvals of such Holders of the Common
Securities, prior to taking any of the foregoing actions, the Trustees
shall obtain an opinion of counsel experienced in such matters to the
effect that the Trust shall not be classified as an association
taxable as a corporation for United States federal income tax purposes
on account of such action.
If an Event of Default under the Declaration has occurred and is
continuing and such event is attributable to the failure of the
Debenture Issuer to pay principal of or premium, if any, or interest
on the Debentures on the due date (or in the case of redemption, on
the redemption date), then a Holder of Common Securities may institute
a Direct Action for enforcement of payment to such Holder of the
principal of or premium, if any, or interest on a Like Amount of
Debentures on or after the respective due date specified in the
Debentures. In connection with Direct Action, the rights of the Common
Securities Holder shall be subordinated to the rights of such Holder
of Capital Securities in respect of any payment from the Debenture
Issuer in such Direct Action. Except as provided in the second
preceding sentence, the Holders of Common Securities shall not be able
to exercise directly any other remedy available to the holders of the
Debentures.
Any approval or direction of Holders of Common Securities may be
given at a separate meeting of Holders of Common Securities convened
for such purpose, at a meeting of all of the Holders of Securities in
the Trust or pursuant to written consent. The Administrative Trustees
shall cause a notice of any meeting at which Holders of Common
Securities are entitled to vote, or of any matter upon which action by
written consent of such Holders is to be taken, to be mailed to each
Holder of record of Common Securities. Each such notice shall include
a statement setting forth (i) the date of such meeting or the date by
which such action is to be taken, (ii) a description of any resolution
proposed for adoption at such meeting on which such Holders are
entitled to vote or of such matter upon which written consent is
sought and (iii) instructions for the delivery of proxies or consents.
No vote or consent of the Holders of the Common Securities shall
be required for the Trust to redeem and cancel Common Securities or to
distribute the Debentures in accordance with the Declaration and the
terms of the Securities.
7. Amendments to Declaration and Indenture.
In addition to the requirements set out in Section 12.1 of the
Declaration, the Declaration may be amended from time to time by the
Sponsor, the Property Trustee and the Administrative Trustees, without
the consent of the Holders of the Securities (i) to cure any
ambiguity, correct or supplement any provisions in the Declaration
that may be inconsistent with any other provisions, or to make any
other provisions with respect to matters or questions arising under
the Declaration which shall not be inconsistent with the other
provisions of the Declaration, or (ii) to modify, eliminate or add to
any provisions of the Declaration 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
Securities are outstanding or to ensure that the Trust shall not be
required to register as an "investment company" under the Investment
Company Act; provided however, that in the case of clause (i), such
action shall not adversely affect in any material respect the
interests of any Holder of Securities, and any amendments of the
Declaration shall become effective when notice thereof is given to the
Holders of the Securities. The Declaration may be amended by the
Trustees and the Sponsor with (a) the consent of Holders representing
a Majority in liquidation amount of all outstanding Securities, and
(b) 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 as an investment company
under the Investment Company Act, provided that, without the consent
of each Holder of Trust Securities, the Declaration may not be amended
to (x) change the amount or timing of any Distribution on, or the
payment required to be made in respect of the Securities or any
redemption provisions or otherwise adversely affect the amount of any
Distribution or other payment required to be made in respect of the
Securities as of a specified date or (y) restrict the right of a
Holder of Securities to institute suit for the enforcement of any such
payment on or after such date.
8. Pro Rata.
A reference in these terms of the Securities to any payment,
distribution or treatment as being "Pro Rata" shall mean pro rata to
each Holder of Securities according to the aggregate liquidation
amount of the Securities held by the relevant Holder in relation to
the aggregate liquidation amount of all Securities outstanding unless,
in relation to a payment, an Event of Default under the Declaration
has occurred and is continuing, in which case any funds available to
make such payment shall be paid first to each Holder of the Capital
Securities pro rata according to the aggregate liquidation amount of
Capital Securities held by the relevant Holder relative to the
aggregate liquidation amount of all Capital Securities outstanding,
and only after satisfaction of all amounts owed to the Holders of the
Capital Securities, to each Holder of Common Securities pro rata
according to the aggregate liquidation amount of Common Securities
held by the relevant Holder relative to the aggregate liquidation
amount of all Common Securities outstanding.
8. Ranking.
The Capital Securities rank pari passu with the Common Securities
and payment thereon shall be made Pro Rata with the Common Securities,
except that, if an Event of Default under the Declaration occurs and
is continuing, no payments in respect of Distributions on, or payments
upon liquidation, redemption or otherwise with respect to, the Common
Securities shall be made until the Holders of the Capital Securities
shall be paid in full the Distributions, Redemption Price, Liquidation
Distribution and other payments to which they are entitled at such
time.
10. Acceptance of Capital Securities Guarantee, Common
Securities Guarantee, Indenture and Debentures.
Each Holder of Capital Securities and Common Securities, by the
acceptance thereof, agrees to the provisions of the Capital Securities
Guarantee, the Common Securities Guarantee, the Indenture and the
Debentures, including the subordination provisions therein.
11. No Preemptive Rights.
The Holders of the Securities shall have no preemptive rights to
subscribe for any additional securities.
12. Miscellaneous.
These terms constitute a part of the Declaration.
The Sponsor shall provide a copy of the Declaration, the Capital
Securities Guarantee or the Common Securities Guarantee (as may be
appropriate), the Indenture (including any supplemental indenture) to
a Holder without charge on written request to the Sponsor at its
principal place of business.
EXHIBIT A-1
FORM OF CAPITAL SECURITY CERTIFICATE
[FORM OF FACE OF SECURITY]
[IF THIS CAPITAL SECURITY IS A GLOBAL CAPITAL SECURITY, INSERT:
THIS CAPITAL SECURITY IS A GLOBAL CAPITAL SECURITY WITHIN THE MEANING
OF THE DECLARATION HEREINAFTER REFERRED TO AND IS REGISTERED IN THE
NAME OF THE DEPOSITORY TRUST COMPANY ("DTC") OR A NOMINEE OF DTC. THIS
CAPITAL SECURITY IS EXCHANGEABLE FOR CAPITAL SECURITIES REGISTERED IN
THE NAME OF A PERSON OTHER THAN DTC OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE DECLARATION AND NO TRANSFER OF THIS
CAPITAL SECURITY (OTHER THAN A TRANSFER OF THIS CAPITAL SECURITY AS A
WHOLE BY DTC TO A NOMINEE OF DTC OR BY A NOMINEE OF DTC TO DTC OR
ANOTHER NOMINEE OF DTC) MAY BE REGISTERED EXCEPT IN LIMITED
CIRCUMSTANCES.
UNLESS THIS CAPITAL SECURITY IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC TO THE TRUST OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CAPITAL SECURITY ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH PERSON AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC, ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH
AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
[THIS CAPITAL SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY
STATE SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES LAW. NEITHER
THIS CAPITAL 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
SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS CAPITAL SECURITY BY ITS ACCEPTANCE HEREOF
AGREES TO OFFER, SELL OR OTHERWISE TRANSFER THIS CAPITAL SECURITY,
PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION DATE") WHICH IS
THREE YEARS AFTER THE LATER OF THE ORIGINAL ISSUANCE DATE HEREOF AND
THE LAST DATE ON WHICH FIRST OF AMERICA BANK CORPORATION (THE
"COMPANY") OR ANY "AFFILIATE" OF THE COMPANY WAS THE OWNER OF THIS
CAPITAL SECURITY (OR ANY PREDECESSOR OF THIS CAPITAL SECURITY) ONLY
(A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS
BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) SO LONG AS THIS
CAPITAL SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER
THE SECURITIES ACT ("RULE 144A") TO A PERSON IT 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 TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING
MADE IN RELIANCE ON 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 CAPITAL
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
ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER
THE SECURITIES ACT, SUBJECT TO THE RIGHT OF FIRST OF AMERICA CAPITAL
TRUST I (THE "TRUST") AND THE COMPANY PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER (i) PURSUANT TO CLAUSE (D) OR (E) TO REQUIRE THE DELIVERY OF
AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM, AND (ii) PURSUANT TO CLAUSE (D), TO
REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE
REVERSE OF THIS CAPITAL SECURITY IS COMPLETED AND DELIVERED BY THE
TRANSFEREE TO THE TRUST. SUCH HOLDER FURTHER AGREES THAT IT WILL
DELIVER TO EACH PERSON TO WHOM THIS CAPITAL SECURITY IS TRANSFERRED A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.]
Certificate Number: Number of Capital Securities
CUSIP NO.
Certificate Evidencing Capital Securities
of
FIRST OF AMERICA CAPITAL TRUST I
8.12% Capital Securities, Series __
(liquidation amount of $1,000 per Capital Security)
FIRST OF AMERICA CAPITAL TRUST I, a statutory business trust
formed under the laws of the State of Delaware (the "Trust"), hereby
certifies that _________ (the "Holder") is the registered owner of
________ securities of the Trust representing undivided beneficial
interests in the assets of the Trust designated the 8.12% Capital
Securities, Series __ (liquidation amount of $1,000 per Capital
Security) (the "Capital Securities"). The Capital Securities are
transferable on the books and records of the Trust, in person or by a
duly authorized attorney, upon surrender of this certificate duly
endorsed and in proper form for transfer. The designation, rights,
privileges, restrictions, preferences and other terms and provisions
of the Capital Securities represented hereby are issued and shall in
all respects be subject to the provisions of the Amended and Restated
Declaration of Trust of the Trust dated as of January 28, 1997, as the
same may be amended from time to time (the "Declaration"), including
the designation of the terms of the Capital Securities as set forth in
Annex I to the Declaration. Capitalized terms used but not defined
herein shall have the meaning given them in the Declaration. The
Sponsor will provide a copy of the Declaration, the Capital Securities
Guarantee and the Indenture to a Holder without charge upon written
request to the Trust at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder and to the
benefits of the Capital Securities Guarantee to the extent provided
therein.
By its acceptance hereof, the Holder agrees to treat, for United
States federal income tax purposes, the Debentures as indebtedness and
the Capital Securities as evidence of indirect beneficial ownership in
the Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate this
____ day of _______, ____.
FIRST OF AMERICA CAPITAL TRUST I
By:______________________________
Name:
Administrative Trustee
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Capital Securities referred to in the
within-mentioned Declaration.
Dated: January 28, 1997
THE BANK OF NEW YORK,
as Property Trustee
By: ____________________________
Authorized Signatory
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Capital Security will be fixed
at a rate per annum of 8.12% (the "Coupon Rate") of the liquidation
amount of $1,000 per Capital Security, such rate being the rate of
interest payable on the Debentures to be held by the Property Trustee.
Distributions in arrears for more than one semi-annual period will
bear interest thereon compounded semi-annually at the Coupon Rate (to
the extent permitted by applicable law). Pursuant to the Registration
Rights Agreement, in certain limited circumstances the Debenture
Issuer will be required to pay Liquidated Damages (as defined in the
Registration Rights Agreement) with respect to the Debentures. The
term "Distributions", as used herein, includes such cash distributions
and any such interest and such Liquidated Damages payable unless
otherwise stated. A Distribution is payable only to the extent that
payments are made in respect of the Debentures held by the Property
Trustee and to the extent the Property Trustee has funds on hand
legally available therefor.
Distributions on the Capital Securities will be cumulative, will
accumulate from the most recent date to which Distributions have been
paid or, if any Distributions have been paid, from January 28, 1997,
and will be payable semi-annually in arrears on January 31 and July 31
of each year, commencing on July 31, 1997, except as otherwise
described below. Distributions shall be computed on the basis of a
360-day year consisting of twelve 30-day months and, for any period
less than a full calendar month, the number of days elapsed in such
month. As long as no Event of Default has occurred and is continuing
under the Indenture, the Debenture Issuer has the right under the
Indenture to defer payments of interest by extending the interest
payment period at any time and from time to time on the Debentures for
a period not exceeding 10 consecutive calendar semiannual periods,
including the first such semi-annual period during such extension
period (each an "Extension Period"), provided that no Extension Period
shall extend beyond the Maturity Date of the Debentures. As a
consequence of such deferral, Distributions will also be deferred.
Despite such deferral, semi-annual Distributions will continue to
accumulate with interest thereon (to the extent permitted by
applicable law, but not at a rate exceeding the rate of interest then
accruing on the Debentures) at the Coupon Rate compounded
semi-annually during any such Extension Period. The Debenture Issuer
may further defer payments of interest by further extending any
existing Extension Period; provided that such Extension Period,
together with all such previous and further extensions within such
Extension Period, may not exceed 10 consecutive semi-annual periods,
including the first semiannual period during such Extension Period, or
extend beyond the Maturity Date of the Debentures. Payments of
accumulated Distributions will be payable to Holders as they appear on
the books and records of the Trust on the first record date after the
end of the Extension Period. Upon the termination of any Extension
Period and the payment of all amounts then due, the Debenture Issuer
may commence a new Extension Period, subject to the above
requirements.
Subject to the prior approval of the Federal Reserve Board if
such approval is then required under applicable law or capital
guidelines or policies of the Federal Reserve Board and certain
conditions set forth in the Declaration and the Indenture, the
Property Trustee may, at the direction of the Sponsor, at any time
terminate the Trust and cause the Debentures to be distributed to the
holders of the Securities in liquidation of the Trust or, simultaneous
with any redemption of the Debentures, cause a Like Amount of the
Securities to be redeemed by the Trust.
The Capital Securities shall be redeemable as provided in the
Declaration.
_________________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Capital Security Certificate to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee)
and irrevocably appoints
agent to
transfer this Capital Security Certificate on the books of the Trust.
The agent may substitute another to act for him or her.
Date:
Signature:
(Sign exactly as your name appears on the other side of this Capital
Security Certificate)
Signature Guarantee:
* Signature must be guaranteed by an "eligible guarantor
institution" that is a bank, stockbroker, savings and loan association
or credit union meeting the requirements of the Registrar, which
requirements include membership or participation in the Securities
Transfer Agents Medallion Program ("STAMP") or such other "signature
guarantee program" as may be determined by the Registrar in addition
to, or in substitution for, STAMP, all in accordance with the
Securities and Exchange Act of 1934, as amended.
[Include the following if the Capital Security bears a Restricted
Capital Securities Legend --
In connection with any transfer of any of the Capital Securities
evidenced by this certificate, the undersigned confirms that such
Capital Securities are being:
CHECK ONE BOX BELOW
(1) _ exchanged for the undersigned's own account without
transfer; or
(2) _ transferred pursuant to and in compliance with Rule
144A under the Securities Act of 1933; or
(3) _ to an institutional "accredited investor" within the
meaning of subparagraph (a)(1), (2), (3) or (7) of Rule
501 under the Securities Act of 1933 that is acquiring
the Capital Securities 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 of 1933; or
(4) _ transferred pursuant to another available exemption
from the registration requirements of the Securities
Act of 1933; or
(5) _ transferred pursuant to an effective registration
statement.
Unless one of the boxes is checked, the Exchange Agent will refuse to
register any of the Capital Securities evidenced by this certificate
in the name of any person other than the registered Holder thereof;
provided, however, that if box (3) or (4) is checked, the Exchange
Agent may require, prior to registering any such transfer of the
Capital Securities such legal opinions, certifications and other
information as the Trust has reasonably requested 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 of 1933, such as the exemption provided by Rule 144
under such Act; provided further, that (i) if box (2) is checked, the
transferee must also certify that it is a qualified institutional
buyer as defined in Rule 144A in the form attached hereto or (ii) if
box (3) is checked, the transferee must also provide to the Exchange
Agent a Transferee Letter of Representation in the form attached to
the Offering Memorandum of the Trust dated January 21, 1997; provided,
further, that after the date that a Registration Statement has been
filed and so long as such Registration Statement continues to be
effective, the Exchange Agent may only permit transfers for which box
(5) has been checked.
_________________________________
Signature
CERTIFICATE OF QUALIFIED INSTITUTIONAL BUYER
The undersigned transferee of Capital Securities hereby certifies
that (i) the undersigned is a "qualified institutional buyer" (a
"QIB") as defined in Rule 144A ("Rule 144A") promulgated under the
Securities Act of 1933, (ii) the undersigned is aware that the
transfer of the Capital Securities to the undersigned is being made in
reliance on Rule 144A (iii) the undersigned is acquiring the Capital
Securities for its own account or for the account of another QIB over
which the undersigned exercises its sole investment discretion.
The undersigned also understands and acknowledges tht the Capital
Securities have not been registered under the Securities Act or any
other applicable securities law, are being offered for resale in
transactions not requiring registration under the Securities Act, and
may not be offered, sold, pledged or otherwise transferred except in
compliance with the registration requirements of the Securities Act or
any other applicable securities laws, pursuant to an exemption
therefrom or in a transaction not subject thereto and, in each case,
in compliance with the terms of the Capital Securities and the terms
of the Amended and Restated Declaration of Trust of First of America
Capital Trust I dted as of January 28, as the same may be amended from
time to time.
_______________________________________
Signature
EXHIBIT A-2
FORM OF COMMON SECURITY CERTIFICATE
THIS COMMON SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES
LAWS OR ANY OTHER APPLICABLE SECURITIES LAW. NEITHER THIS COMMON
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED
OF.
Certificate Number Number of Common Securities
Certificate Evidencing Common Securities
of
FIRST OF AMERICA CAPITAL TRUST I
8.12% Common Securities
(liquidation amount of $1,000 per Common Security)
FIRST OF AMERICA CAPITAL TRUST I, a statutory business trust
formed under the laws of the State of Delaware (the "Trust"), hereby
certifies that First of America Bank Corporation, a Michigan
corporation (the "Holder"), is the registered owner of four thousand
six hundred forty (4,640) securities of the Trust representing
undivided beneficial interests in the assets of the Trust designated
the 8.12% Common Securities (liquidation amount of $1,000 per Common
Security) (the "Common Securities"). The Common Securities are
transferable on the books and records of the Trust, in person or by a
duly authorized attorney, upon surrender of this certificate duly
endorsed and in proper form for transfer. The designation, rights,
privileges, restrictions, preferences and other terms and provisions
of the Common Securities represented hereby are issued and shall in
all respects be subject to the provisions of the Amended and Restated
Declaration of Trust of the Trust dated as of January 28, 1997, as the
same may be amended from time to time (the "Declaration"), including
the designation of the terms of the Common Securities as set forth in
Annex I to the Declaration. Capitalized terms used but not defined
herein shall have the meaning given them in the Declaration. The
Sponsor will provide a copy of the Declaration, the Common Securities
Guarantee and the Indenture (including any supplemental indenture) to
a Holder without charge upon written request to the Sponsor at its
principal place of business.
Upon receipt of this certificate, the Sponsor is bound by the
Declaration and is entitled to the benefits thereunder and to the
benefits of the Common Securities Guarantee to the extent provided
therein.
By its acceptance hereof, the Holder agrees to treat, for United
States federal income tax purposes, the Debentures as indebtedness and
the Common Securities as evidence of indirect beneficial ownership in
the Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate this
28th day of January, 1997.
FIRST OF AMERICA CAPITAL TRUST I
By:
Name:
Administrative Trustee
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Common Security will be fixed at a
rate per annum of 8.12% (the "Coupon Rate") of the liquidation amount
of $1,000 per Common Security, such rate being the rate of interest
payable on the Debentures to be held by the Property Trustee.
Distributions in arrears for more than one semi-annual period will
bear interest thereon compounded semiannually at the Coupon Rate (to
the extent permitted by applicable law). Pursuant to the Registration
Rights Agreement, in certain limited circumstances the Debenture
Issuer will be required to pay Liquidated Damages (as defined in the
Registration Rights Agreement) with respect to the Debentures. The
term "Distributions", as used herein, includes such cash distributions
and any such interest and such Liquidated Damages payable unless
otherwise stated. A Distribution is payable only to the extent that
payments are made in respect of the Debentures held by the Property
Trustee and to the extent the Property Trustee has funds available
therefor.
Distributions on the Common Securities will be cumulative, will
accrue from the most recent date to which Distributions have been paid
or, if no Distributions have been paid, from January 28, 1997, and
will be payable semi-annually in arrears on January 31 and July 31 of
each year, commencing on July 31, 1997, except as otherwise described
below. Distributions will be computed on the basis of a 360-day year
consisting of twelve 30 day months and, for any period less than a
full calendar month, the number of days elapsed in such month. As long
as no Event of Default has occurred and is continuing under the
Indenture, the Debenture Issuer has the right under the Indenture to
defer payments of interest by extending the interest payment period at
any time and from time to time on the Debentures for a period not
exceeding 10 consecutive calendar semi-annual periods, including the
first such semi-annual period during such extension period (each an
"Extension Period"), provided that no Extension Period shall extend
beyond the Maturity Date of the Debentures. As a consequence of such
deferral, Distributions will also be deferred. Despite such deferral,
Distributions will continue to accumulate with interest thereon (to
the extent permitted by applicable law, but not at a rate exceeding
the rate of interest then accruing on the Debentures) at the Coupon
Rate compounded semi-annually during any such Extension Period. The
Debenture Issuer may further defer payments of interest by further
extending any existing Extension Period; provided that such Extension
Period, together with all such previous and further extensions within
such Extension Period, may not exceed 10 consecutive semi-annual
periods, including the first semi-annual period during such Extension
Period, or extend beyond the Maturity Date of the Debentures. Payments
of accrued Distributions will be payable to Holders as they appear on
the books and records of the Trust on the first record date after the
end of the Extension Period. Upon the termination of any Extension
Period and the payment of all amounts then due, the Debenture Issuer
may commence a new Extension Period, subject to the above
requirements.
Subject to the prior approval of the Federal Reserve Board if
such approval is then required under applicable law or capital
guidelines or policies of the Federal Reserve Board and certain
conditions set forth in the Declaration and the Indenture, the
Property Trustee may, at the direction of the Sponsor, at any time
terminate the Trust and cause the Debentures to be distributed to the
holders to the Securities in liquidation of the Trust or, simultaneous
with any redemption of the Debentures, cause a Like Amount of the
Securities to be redeemed by the Trust.
The Common Securities shall be redeemable as provided in the
Declaration.
Exhibit 4.6
FORM OF CAPITAL SECURITY CERTIFICATE
(FORM OF FACE OF SECURITY)
THIS CAPITAL SECURITY IS A GLOBAL CAPITAL SECURITY WITHIN THE
MEANING OF THE DECLARATION HEREINAFTER REFERRED TO AND IS REGISTERED
IN THE NAME OF THE DEPOSITORY TRUST COMPANY ("DTC") OR A NOMINEE OF
DTC. THIS CAPITAL SECURITY IS EXCHANGEABLE FOR CAPITAL SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN DTC OR ITS NOMINEE ONLY
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE DECLARATION AND NO
TRANSFER OF THIS CAPITAL SECURITY (OTHER THAN A TRANSFER OF THIS
CAPITAL SECURITY AS A WHOLE BY DTC TO A NOMINEE OF DTC OR BY A NOMINEE
OF DTC TO DTC OR ANOTHER NOMINEE OF DTC) MAY BE REGISTERED EXCEPT IN
LIMITED CIRCUMSTANCES.
UNLESS THIS CAPITAL SECURITY IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC TO THE TRUST OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CAPITAL SECURITY ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH PERSON AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC, ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH
AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
Certificate Number: Number of Capital Securities
CUSIP NO.
Certificate Evidencing Capital Securities
of
FIRST OF AMERICA CAPITAL TRUST I
8.12% Capital Securities, Series B
(liquidation amount of $1,000 per Capital Security)
FIRST OF AMERICA CAPITAL TRUST I, a statutory business trust
formed under the laws of the State of Delaware (the "Trust"), hereby
certifies that _________ (the "Holder") is the registered owner of
________ securities of the Trust representing undivided beneficial
interests in the assets of the Trust designated the 8.12% Capital
Securities, Series B (liquidation amount of $1,000 per Capital
Security) (the "Capital Securities"). The Capital Securities are
transferable on the books and records of the Trust, in person or by a
duly authorized attorney, upon surrender of this certificate duly
endorsed and in proper form for transfer. The designation, rights,
privileges, restrictions, preferences and other terms and provisions
of the Capital Securities represented hereby are issued and shall in
all respects be subject to the provisions of the Amended and Restated
Declaration of Trust of the Trust dated as of January 28, 1997, as the
same may be amended from time to time (the "Declaration"), including
the designation of the terms of the Capital Securities as set forth in
Annex I to the Declaration. Capitalized terms used but not defined
herein shall have the meaning given them in the Declaration. The
Sponsor will provide a copy of the Declaration, the Capital Securities
Guarantee and the Indenture to a Holder without charge upon written
request to the Trust at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder and to the
benefits of the Capital Securities Guarantee to the extent provided
therein.
By its acceptance hereof, the Holder agrees to treat, for United
States federal income tax purposes, the Debentures as indebtedness and
the Capital Securities as evidence of indirect beneficial ownership in
the Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate this
____ day of _______________, 1997.
FIRST OF AMERICA CAPITAL TRUST I
By:____________________________
Name:__________________________
Administrative Trustee
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Capital Securities referred to in the within-
mentioned Declaration.
Dated:
THE BANK OF NEW YORK,
as Property Trustee
By: _________________________
Authorized Signatory
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Capital Security will be fixed at a
rate per annum of 8.12% (the "Coupon Rate") of the liquidation amount
of $1,000 per Capital Security, such rate being the rate of interest
payable on the Debentures to be held by the Property Trustee.
Distributions in arrears for more than one semi-annual period will
bear interest thereon compounded semi-annually at the Coupon Rate (to
the extent permitted by applicable law). The term "Distributions", as
used herein, includes such cash distributions and any such interest
payable unless otherwise stated. A Distribution is payable only to the
extent that payments are made in respect of the Debentures held by the
Property Trustee and to the extent the Property Trustee has funds on
hand legally available therefor.
Distributions on the Capital Securities will be cumulative, will
accumulate from the most recent date to which Distributions have been
paid or, if any Distributions have been paid, from January 28, 1997,
and will be payable semi-annually in arrears on January 31 and July 31
of each year, commencing on July 31, 1997, except as otherwise
described below. Distributions shall be computed on the basis of a
360-day year consisting of twelve 30-day months and, for any period
less than a full calendar month, the number of days elapsed in such
month. As long as no Event of Default has occurred and is continuing
under the Indenture, the Debenture Issuer has the right under the
Indenture to defer payments of interest by extending the interest
payment period at any time and from time to time on the Debentures for
a period not exceeding 10 consecutive calendar semi-annual periods,
including the first such semi-annual period during such extension
period (each an "Extension Period"), provided that no Extension Period
shall extend beyond the Maturity Date of the Debentures. As a
consequence of such deferral, Distributions will also be deferred.
Despite such deferral, semi-annual Distributions will continue to
accumulate with interest thereon (to the extent permitted by
applicable law, but not at a rate exceeding the rate of interest then
accruing on the Debentures) at the Coupon Rate compounded
semi-annually during any such Extension Period. The Debenture Issuer
may further defer payments of interest by further extending any
existing Extension Period; provided that such Extension Period,
together with all such previous and further extensions within such
Extension Period, may not exceed 10 consecutive semi-annual periods,
including the first semiannual period during such Extension Period, or
extend beyond the Maturity Date of the Debentures. Payments of
accumulated Distributions will be payable to Holders as they appear on
the books and records of the Trust on the first record date after the
end of the Extension Period. Upon the termination of any Extension
Period and the payment of all amounts then due, the Debenture Issuer
may commence a new Extension Period, subject to the above
requirements.
Subject to the prior approval of the Federal Reserve Board if
such approval is then required under applicable law or capital
guidelines or policies of the Federal Reserve Board and certain
conditions set forth in the Declaration and the Indenture, the
Property Trustee may, at the direction of the Sponsor, at any time
terminate the Trust and cause the Debentures to be distributed to the
holders of the Securities in liquidation of the Trust or, simultaneous
with any redemption of the Debentures, cause a Like Amount of the
Securities to be redeemed by the Trust.
The Capital Securities shall be redeemable as provided in the
Declaration.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Capital Security Certificate to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee)
and irrevocably appoints
agent to transfer this Capital Security
Certificate on the books of the Trust. The agent
may substitute another to act for him or her.
Date:
Signature:
(Sign exactly as your name appears on the
other side of this Capital Security Certificate)
Signature Guarantee:
* Signature must be guaranteed by an "eligible guarantor
institution" that is a bank, stockbroker, savings and loan association
or credit union meeting the requirements of the Registrar, which
requirements include membership or participation in the Securities
Transfer Agents Medallion Program ("STAMP") or such other "signature
guarantee program" as may be determined by the Registrar in addition
to, or in substitution for, STAMP, all in accordance with the
Securities and Exchange Act of 1934, as amended.
Exhibit 4.7
CAPITAL SECURITIES, SERIES B, GUARANTEE AGREEMENT
First of America Bank Corporation
Dated as of ___________, 1997
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation 2
ARTICLE 2 TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application 5
SECTION 2.2 Lists of Holders of Securities 5
SECTION 2.3 Reports by the Capital Securities Guarantee
Trustee 6
SECTION 2.4 Periodic Reports to Capital Securities
Guarantee Trustee 6
SECTION 2.5 Evidence of Compliance with
Conditions Precedent 6
SECTION 2.6 Events of Default; Waiver 6
SECTION 2.7 Notice of Default 7
SECTION 2.8 Conflicting Interests 7
ARTICLE 3 POWERS, DUTIES AND RIGHTS OF CAPITAL SECURITIES GUARANTEE
TRUSTEE
SECTION 3.1 Powers and Duties of the Capital Securities
Guarantee Trustee 7
SECTION 3.2 Certain Rights of Capital Securities
Guarantee Trustee 9
SECTION 3.3 Not Responsible for Recitals or Issuance of
Series B Capital Securities Guarantee 11
ARTICLE 4 CAPITAL SECURITIES GUARANTEE TRUSTEE
SECTION 4.1 Capital Securities Guarantee Trustee;
Eligibility 11
SECTION 4.2 Appointment, Removal and Resignation
of Capital Securities Guarantee Trustee 12
ARTICLE 5 GUARANTEE
SECTION 5.1 Guarantee 13
SECTION 5.2 Waiver of Notice and Demand 13
SECTION 5.3 Obligations Not Affected 13
SECTION 5.4 Rights of Holders 14
SECTION 5.5 Guarantee of Payment 15
SECTION 5.6 Subrogation 15
SECTION 5.7 Independent Obligations 15
ARTICLE 6 LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions 15
SECTION 6.2 Ranking 16
ARTICLE 7 TERMINATION
SECTION 7.1 Termination 17
ARTICLE 8 INDEMNIFICATION
SECTION 8.1 Exculpation 17
SECTION 8.2 Indemnification 17
ARTICLE 9 MISCELLANEOUS
SECTION 9.1 Successors and Assigns 18
SECTION 9.2 Amendments 18
SECTION 9.3 Notices 18
SECTION 9.4 Benefit 19
SECTION 9.5 Governing Law 19
CROSS-REFERENCE TABLE
Section of Trust Indenture Act Section of Guarantee Agreement
of 1939, as amended
310(a) 4.1(a)
310(b) 4.1(c), 2.8
310(c) Inapplicable
311(a) 2.2(b)
311(b) 2.2(b)
311(c) Inapplicable
312(a) 2.2(a)
312(b) 2.2(b)
313 2.3
314(a) 2.4
314(b) Inapplicable
314(c) 2.5
314(d) Inapplicable
314(e) 1.1, 2.5, 3.2
314(f) 2.1, 3.2
315(a) 3.1(d)
315(b) 2.7
315(c) 3.1(c)
315(d) 3.1(d)
316(a) 1.1, 2.6, 5.4
316(b) 5.3
316(c) 9.2
317(a) Inapplicable
317(b) Inapplicable
318(a) 2.1(a)
318(c) 2.1(b)
This Cross-Reference Table does not constitute part of the Guarantee
Agreement and shall not affect the interpretation of any of its terms
or provisions.
CAPITAL SECURITIES, SERIES B, GUARANTEE AGREEMENT
THIS CAPITAL SECURITIES, SERIES B, GUARANTEE AGREEMENT (the
"Series B Capital Securities Guarantee"), dated as of _________, 1997,
is executed and delivered by First of America Bank Corporation, a
Michigan corporation (the "Guarantor"), and The Bank of New York, a
New York banking corporation, as trustee (the "Capital Securities
Guarantee Trustee"), for the benefit of the Holders (as defined
herein) from time to time of the Series B Capital Securities (as
defined herein) of First of America Capital Trust I, a Delaware
statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust
(the "Declaration"), dated as of January 28, 1997, among the trustees
of the Issuer, the Guarantor, as sponsor, and the holders from time to
time of undivided beneficial interests in the assets of the Issuer,
the Issuer (i) has issued on January 28, 1997 150,000 capital
securities, having an aggregate liquidation amount of $150,000,000,
such capital securities being designated the 8.12% Capital Securities,
Series A (collectively, the "Series A Capital Securities") and (ii) is
issuing on the date hereof 150,000 capital securities, having an
aggregate liquidation amount of $150,000,000, such capital securities
being designated the 8.12% Capital Securities, Series B (the "Series B
Capital Securities") in connection with the consummation of the
Exchange Offer (as defined in the Declaration).
WHEREAS, as incentive for the Holders to exchange the Series A
Capital Securities for the Series B Capital Securities in the Exchange
Offer, the Guarantor desires irrevocably and unconditionally to agree,
to the extent set forth in this Series B Capital Securities Guarantee,
to pay the Guarantee Payments (as defined below) to the Holders of the
Series B Capital Securities. Guarantor agrees to make certain other
payments on the terms and conditions set forth herein.
WHEREAS, the Guarantor has executed and delivered a guarantee
agreement (the "Common Securities Guarantee") for the benefit of the
holders of the Common Securities (as defined herein), the terms of
which provide that if an Event of Default (as defined in the
Declaration) has occurred and is continuing, the rights of holders of
the Common Securities to receive Guarantee Payments under the Common
Securities Guarantee are subordinated, to the extent and in the manner
set forth in the Common Securities Guarantee, to the rights of Holders
of Series A Capital Securities and the Series B Capital Securities to
receive Guarantee Payments under the Series A Capital Securities
Guarantee and this Series B Capital Securities Guarantee, as the case
may be.
NOW, THEREFORE, in consideration of the exchange by each Holder
of Series B Capital Securities [?], which exchange the Guarantor
hereby acknowledges shall benefit the Guarantor, the Guarantor
executes and delivers this Series B Capital Securities Guarantee for
the benefit of the Holders.
ARTICLE 1
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation
In this Series B Capital Securities Guarantee, unless the context
otherwise requires:
a. Capitalized terms used in this Series B Capital Securities
Guarantee but not defined in the preamble above have the respective
meanings assigned to them in this Section 1.1;
b. Terms defined in the Declaration as at the date of execution
of this Series B Capital Securities Guarantee have the same meaning
when used in this Series B Capital Securities Guarantee unless
otherwise defined in this Series B Capital Securities Guarantee;
c. a term defined anywhere in this Series B Capital Securities
Guarantee has the same meaning throughout;
d. all references to "the Series B Capital Securities
Guarantee" or "this Series B Capital Securities Guarantee" are to this
Series B Capital Securities Guarantee as modified, supplemented or
amended from time to time;
e. all references in this Series B Capital Securities Guarantee
to Articles and Sections are to Articles and Sections of this Series B
Capital Securities Guarantee, unless otherwise specified;
f. a term defined in the Trust Indenture Act has the same
meaning when used in this Series B Capital Securities Guarantee,
unless otherwise defined in this Series B Capital Securities Guarantee
or unless the context otherwise requires; and
g. a reference to the singular includes the plural and vice
versa.
"Affiliate" has the same meaning as given to that term in Rule
405 under the Securities Act of 1933, as amended, or any successor
rule thereunder.
"Business Day" shall mean any day other than a Saturday or a
Sunday, or a day on which banking institutions in The City of New York
or Boston, Massachusetts are authorized or required by law or
executive order to close.
"Capital Securities Guarantee Trustee" shall mean The Bank of New
York until a Successor Capital Securities Guarantee Trustee has been
appointed and has accepted such appointment pursuant to the terms of
this Series B Capital Securities Guarantee and thereafter means each
such Successor Capital Securities Guarantee Trustee.
"Common Securities" shall mean the securities representing common
undivided beneficial interests in the assets of the Issuer.
"Corporate Trust Office" shall mean the office of the Capital
Securities Guarantee Trustee at which the corporate trust business of
the Capital Securities Guarantee Trustee shall, at any particular
time, be principally administered, which office at the date of
execution of this Agreement is located at 101 Barclay Street, 21 West,
New York, New York 10286.
"Covered Person" shall mean any Holder or beneficial owner of
Series B Capital Securities.
"Debentures" shall mean the series of subordinated debt
securities of the Guarantor designated the 8.12% Junior Subordinated
Deferrable Interest Debentures due January 31, 2027, Series B, held by
the Property Trustee (as defined in the Declaration) of the Issuer.
"Event of Default" shall mean a default by the Guarantor on any
of its payment or other obligations under this Series B Capital
Securities Guarantee.
"Guarantee Payments" shall mean the following payments or
distributions, without duplication, with respect to the Series B
Capital Securities, to the extent not paid or made by the Issuer: (i)
any accumulated and unpaid Distributions (as defined in the
Declaration) that are required to be paid on such Series B Capital
Securities to the extent the Issuer has funds on hand legally
available therefor at such time, (ii) the redemption price, including
all accumulated and unpaid Distributions to the date of redemption
(the "Redemption Price") to the extent the Issuer has funds on hand
legally available therefor at such time, with respect to any Series B
Capital Securities called for redemption by the Issuer, and (iii) upon
a voluntary or involuntary termination and liquidation of the Issuer
(other than in connection with the distribution of Debentures to the
Holders in exchange for Series B Capital Securities as provided in the
Declaration), the lesser of (a) the aggregate of the liquidation
amount and all accumulated and unpaid Distributions on the Series B
Capital Securities to the date of payment, to the extent the Issuer
has funds on hand legally available therefor, and (b) the amount of
assets of the Issuer remaining available for distribution to Holders
in liquidation of the Issuer. If an Event of Default has occurred and
is continuing, no Guarantee Payments under the Common Securities
Guarantee with respect to the Common Securities or any guarantee
payment under any Other Common Securities Guarantees shall be made
until the Holders of Series B Capital Securities shall be paid in full
the Guarantee Payments to which they are entitled under this Series B
Capital Securities Guarantee.
"Holder" shall mean any holder, as registered on the books and
records of the Issuer, of any Series B Capital Securities; provided,
however, that, in determining whether the holders of the requisite
percentage of Series B Capital Securities have given any request,
notice, consent or waiver hereunder, "Holder" shall not include the
Guarantor or any Affiliate of the Guarantor.
"Indemnified Person" shall mean the Capital Securities Guarantee
Trustee, any Affiliate of the Capital Securities Guarantee Trustee, or
any officers, directors, shareholders,members, partners, employees,
representatives, nominees, custodians or agents of the Capital
Securities Guarantee Trustee.
"Indenture" shall mean the Indenture, dated as of January 28,
1997, between First of America Bank Corporation, as issuer of
Debentures (the "Debenture Issuer") and The Bank of New York, as
trustee, pursuant to which the Debentures are to be issued to the
Property Trustee of the Issuer.
"Majority in liquidation amount of the Series B Capital
Securities" shall mean, except as provided by the Trust Indenture Act,
a vote by Holder(s) of Series B Capital Securities, voting separately
as a class, of more than 50% of the aggregate liquidation amount
(including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accumulated and unpaid Distributions to
the date upon which the voting percentages are determined) of all
outstanding Series B Capital Securities.
"Officers' Certificate" shall mean, with respect to any person, a
certificate signed by the chairman, a vice chairman, the chief
executive officer, the president, a vice president, treasurer or an
assistant treasurer of the Guarantor. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant
provided for in this Series B Capital Securities Guarantee shall
include:
a. a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions
relating thereto;
b. a 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
c. a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Other Common Securities Guarantees" shall have the same meaning
as "Other Guarantees" as defined in the Common Securities Guarantee.
"Other Debentures" shall mean all junior subordinated debentures
issued by the Guarantor from time to time and sold to trusts other
than the Issuer to be established by the Guarantor (if any), in each
case similar to the Issuer.
"Other Guarantees" shall mean all guarantees to be issued by the
Guarantor with respect to capital securities (if any) similar to the
Series B Capital Securities issued by trusts other than the Issuer to
be established by the Guarantor (if any), in each case similar to the
Issuer.
"Person" shall mean a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint
stock company, limited liability company, trust, unincorporated
association, or government or any agency or political subdivision
thereof, or any other entity of whatever nature.
"Responsible Officer" shall mean, with respect to the Capital
Securities Guarantee Trustee, any officer within the Corporate Trust
Office of the Capital Securities Guarantee Trustee with direct
responsibility for the administration of this Series B Capital
Securities Guarantee and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is
referred because of that officer's knowledge of and familiarity with
the particular subject.
"Successor Capital Securities Guarantee Trustee" shall mean a
successor Capital Securities Guarantee Trustee possessing the
qualifications to act as Capital Securities Guarantee Trustee under
Section 4.1.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939,
as amended.
"Trust Securities" shall mean the Common Securities and the
Series A Capital Securities and Series B Capital Securities,
collectively.
ARTICLE 2
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application
a. This Series B Capital Securities Guarantee is subject to the
provisions of the Trust Indenture Act that are required to be part of
this Series B Capital Securities Guarantee and shall, to the extent
applicable, be governed by such provisions; and
b. if and to the extent that any provision of this Series B
Capital Securities Guarantee limits, qualifies or conflicts with the
duties imposed by Section 310 to 317, inclusive, of the Trust
Indenture Act, such imposed duties shall control.
SECTION 2.2 Lists of Holders of Securities
a. The Guarantor shall provide the Capital Securities Guarantee
Trustee (unless the Capital Securities Guarantee Trustee is otherwise
the registrar of the Capital Securities) with a list, in such form as
the Capital Securities Guarantee Trustee may reasonably require, of
the names and addresses of the Holders of the Series B Capital
Securities ("List of Holders") as of such date, (i) within one
Business Day after January 15 and July 15 of each year, and (ii) at
any other time within 30 days of receipt by the Guarantor of a written
request for a List of Holders as of a date no more than 14 days before
such List of Holders is given to the Capital Securities Guarantee
Trustee; provided that the Guarantor shall not be obligated to provide
such List of Holders at any time the List of Holders does not differ
from the most recent List of Holders given to the Capital Securities
Guarantee Trustee by the Guarantor. The Capital Securities Guarantee
Trustee may destroy any List of Holders previously given to it on
receipt of a new List of Holders.
b. The Capital Securities Guarantee Trustee shall comply with
its obligations under Sections 311(a), 311(b) and Section 312(b) of
the Trust Indenture Act.
SECTION 2.3 Reports by the Capital Securities Guarantee
Trustee
Within 60 days after January 15 of each year, commencing January
15, 1998, the Capital Securities Guarantee Trustee shall provide to
the Holders of the Series B Capital Securities such reports as are
required by Section 313 of the Trust Indenture Act, if any, in the
form and in the manner provided by Section 313 of the Trust Indenture
Act. The Capital Securities Guarantee Trustee shall also comply with
the requirements of Section 313(d) of the Trust Indenture Act.
SECTION 2.4 Periodic Reports to Capital Securities Guarantee
Trustee
The Guarantor shall provide to the Capital Securities Guarantee
Trustee such documents, reports and information as required by Section
314 (if any) and the compliance certificate required by Section 314 of
the Trust Indenture Act in the form, in the manner and at the times
required by Section 314 of the Trust Indenture Act. Delivery of such
reports, information and documents to the Capital Securities Guarantee
Trustee is for informational purposes only and the Capital Securities
Guarantee Trustee's receipt of such shall not constitute constructive
notice of any information contained therein or determinable from
information contained therein, including the Guarantor's compliance
with any of its covenants hereunder (as to which the Capital
Securities Guarantee Trustee is entitled to rely exclusively on
Officers' Certificates).
SECTION 2.5 Evidence of Compliance with Conditions Precedent
The Guarantor shall provide to the Capital Securities Guarantee
Trustee such evidence of compliance with any conditions precedent, if
any, provided for in this Series B Capital Securities Guarantee that
relate to any of the matters set forth in Section 314(c) of the Trust
Indenture Act. Any certificate or opinion required to be given by an
officer pursuant to Section 314(c)(1) may be given in the form of an
Officers' Certificate.
SECTION 2.6 Events of Default; Waiver
The Holders of a Majority in liquidation amount of Series B
Capital Securities may, by vote, on behalf of the Holders of all of
the Series B Capital Securities, waive any past Event of Default and
its consequences. Upon such waiver, any such Event of Default shall
cease to exist, and any Event of Default arising therefrom shall be
deemed to have been cured, for every purpose of this Series B Capital
Securities Guarantee, but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right
consequent thereon.
SECTION 2.7 Notice of Default
a. The Capital Securities Guarantee Trustee shall, within 5
days after the occurrence of an Event of Default with respect to this
Capital Securities Guarantee, mail by first class postage prepaid, to
all Holders of the Series B Capital Securities, notices of all Events
of Default actually known to a Responsible Officer of the Capital
Securities Guarantee Trustee, unless such Events of Default have been
cured before the giving of such notice; provided, that, except in the
case of an Event of Default arising from the non-payment of any
Guarantee Payment, the Capital Securities Guarantee Trustee shall be
protected in withholding such notice if and so long as the board of
directors, the executive committee, or a trust committee of directors
and/or Responsible Officers of the Capital Securities Guarantee
Trustee in good faith determines that the withholding of such notice
is in the interests of the holders of the Series B Capital Securities.
b. The Capital Securities Guarantee Trustee shall not be deemed
to have knowledge of any Event of Default unless the Capital
Securities Guarantee Trustee shall have received written notice, or a
Responsible Officer of the Capital Securities Guarantee Trustee
charged with the administration of the Declaration shall have obtained
actual knowledge, of such Event of Default.
SECTION 2.8 Conflicting Interests
The Declaration shall be deemed to be specifically described in
this Series B Capital Securities Guarantee for the purposes of clause
(i) of the first proviso contained in Section 310(b) of the Trust
Indenture Act.
ARTICLE 3
POWERS, DUTIES AND RIGHTS OF
CAPITAL SECURITIES GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Capital Securities
Guarantee Trustee
a. This Series B Capital Securities Guarantee shall be held by
the Capital Securities Guarantee Trustee for the benefit of the
Holders of the Series B Capital Securities, and the Capital Securities
Guarantee Trustee shall not transfer this Series B Capital Securities
Guarantee to any Person except a Holder of Series B Capital Securities
exercising his or her rights pursuant to Section 5.4(b) or to a
Successor Capital Securities Guarantee Trustee on acceptance by such
Successor Capital Securities Guarantee Trustee of its appointment to
act as Successor Capital Securities Guarantee Trustee. The right,
title and interest of the Capital Securities Guarantee Trustee shall
automatically vest in any Successor Capital Securities Guarantee
Trustee, and such vesting and succession of title shall be effective
whether or not conveyancing documents have been executed and delivered
pursuant to the appointment of such Successor Capital Securities
Guarantee Trustee.
b. If an Event of Default actually known to a Responsible
Officer of the Capital Securities Guarantee Trustee has occurred and
is continuing, the Capital Securities Guarantee Trustee shall enforce
this Series B Capital Securities Guarantee for the benefit of the
Holders of the Series B Capital Securities.
c. The Capital Securities Guarantee Trustee, before the
occurrence of any Event of Default and after the curing of all Events
of Default that may have occurred, shall undertake to perform only
such duties as are specifically set forth in this Series B Capital
Securities Guarantee, and no implied covenants shall be read into this
Series B Capital Securities Guarantee against the Capital Securities
Guarantee Trustee. In case an Event of Default has occurred (that has
not been cured or waived pursuant to Section 2.6) and is actually
known to a Responsible Officer of the Capital Securities Guarantee
Trustee, the Capital Securities Guarantee Trustee shall exercise such
of the rights and powers vested in it by this Series B Capital
Securities Guarantee, and use the same degree of care and skill in its
exercise thereof, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
d. No provision of this Series B Capital Securities Guarantee
shall be construed to relieve the Capital Securities Guarantee Trustee
from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that:
(i) prior to the occurrence of any Event of Default
and after the curing or waiving of all such Events of Default
that may have occurred:
A. the duties and obligations of the Capital
Securities Guarantee Trustee shall be determined solely by
the express provisions of this Series B Capital Securities
Guarantee, and the Capital Securities Guarantee Trustee
shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this
Series B Capital Securities Guarantee, and no implied
covenants or obligations shall be read into this Series B
Capital Securities Guarantee against the Capital Securities
Guarantee Trustee; and
B. in the absence of bad faith on the part of
the Capital Securities Guarantee Trustee, the Capital
Securities Guarantee Trustee may conclusively rely, as to
the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or
opinions furnished to the Capital Securities Guarantee
Trustee and conforming to the requirements of this Series B
Capital Securities Guarantee; provided, however, that in the
case of any such certificates or opinions that by any
provision hereof are specifically required to be furnished
to the Capital Securities Guarantee Trustee, the Capital
Securities Guarantee Trustee shall be under a duty to
examine the same to determine whether or not they conform to
the requirements of this Series B Capital Securities
Guarantee;
(ii) the Capital Securities Guarantee Trustee shall not
be liable for any error of judgment made in good faith by a
Responsible Officer of the Capital Securities Guarantee Trustee,
unless it shall be proved that the Capital Securities Guarantee
Trustee was negligent in ascertaining the pertinent facts upon
which such judgment was made;
(iii) the Capital Securities Guarantee Trustee shall not
be liable with respect to any action taken or omitted to be taken
by it in good faith in accordance with the direction of the
Holders of a Majority in liquidation amount of the Series B
Capital Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the Capital
Securities Guarantee Trustee, or exercising any trust or power
conferred upon the Capital Securities Guarantee Trustee under
this Series B Capital Securities Guarantee; and
(iv) no provision of this Series B Capital Securities
Guarantee shall require the Capital Securities Guarantee Trustee
to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in
the exercise of any of its rights or powers, if the Capital
Securities Guarantee Trustee shall have reasonable grounds for
believing that the repayment of such funds or liability is not
reasonably assured to it under the terms of this Series B Capital
Securities Guarantee or indemnity, reasonably satisfactory to the
Capital Securities Guarantee Trustee, against such risk or
liability is not reasonably assured to it.
SECTION 3.2 Certain Rights of Capital Securities Guarantee
Trustee
a. Subject to the provisions of Section 3.1:
(i) The Capital Securities Guarantee Trustee may
conclusively rely, and shall be fully protected in acting or
refraining from acting, upon any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence
of indebtedness or other paper or document believed by it to be
genuine and to have been signed, sent or presented by the proper
party or parties.
(ii) Any direction or act of the Guarantor contemplated
by this Series B Capital Securities Guarantee may be sufficiently
evidenced by an Officers' Certificate.
(iii) Whenever, in the administration of this Series B
Capital Securities Guarantee, the Capital Securities Guarantee
Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting any action
hereunder, the Capital Securities Guarantee Trustee (unless other
evidence is herein specifically prescribed) may, in the absence
of bad faith on its part, request and conclusively rely upon an
Officers' Certificate which, upon receipt of such request, shall
be promptly delivered by the Guarantor.
(iv) The Capital Securities Guarantee Trustee shall
have no duty to see to any recording, filing or registration of
any instrument (or any rerecording, refiling or registration
thereof).
(v) The Capital Securities Guarantee Trustee may
consult with counsel of its selection, and the advice or opinion
of such counsel with respect to legal matters shall be full and
complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in
accordance with such advice or opinion. Such counsel may be
counsel to the Guarantor or any of its Affiliates and may include
any of its employees. The Capital Securities Guarantee Trustee
shall have the right at any time to seek instructions concerning
the administration of this Series B Capital Securities Guarantee
from any court of competent jurisdiction.
(vi) The Capital Securities Guarantee Trustee shall be
under no obligation to exercise any of the rights or powers
vested in it by this Series B Capital Securities Guarantee at the
request or direction of any Holder, unless such Holder shall have
provided to the Capital Securities Guarantee Trustee such
security and indemnity, reasonably satisfactory to the Capital
Securities Guarantee Trustee, against the costs, expenses
(including attorneys' fees and expenses and the expenses of the
Capital Securities Guarantee Trustee's agents, nominees or
custodians) and liabilities that might be incurred by it in
complying with such request or direction, including such
reasonable advances as may be requested by the Capital Securities
Guarantee Trustee; provided that, nothing contained in this
Section 3.2(a)(vi) shall be taken to relieve the Capital
Securities Guarantee Trustee, upon the occurrence of an Event of
Default, of its obligation to exercise the rights and powers
vested in it by this Series B Capital Securities Guarantee.
(vii) The Capital Securities Guarantee Trustee shall not
be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement,
instrument,opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or
other paper or document, but the Capital Securities Guarantee
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit.
(viii) The Capital Securities Guarantee Trustee may
execute any of the trusts or powers hereunder or perform any
duties hereunder either directly or by or through agents,
nominees, custodians or attorneys, and the Capital Securities
Guarantee Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with
due care by it hereunder.
(ix) Any action taken by the Capital Securities
Guarantee Trustee or its agents hereunder shall bind the Holders
of the Series B Capital Securities, and the signature of the
Capital Securities Guarantee Trustee or its agents alone shall be
sufficient and effective to perform any such action. No third
party shall be required to inquire as to the authority of the
Capital Securities Guarantee Trustee to so act or as to its
compliance with any of the terms and provisions of this Series B
Capital Securities Guarantee, both of which shall be conclusively
evidenced by the Capital Securities Guarantee Trustee's or its
agent's taking such action.
(x) Whenever in the administration of this Series B
Capital Securities Guarantee the Capital Securities Guarantee
Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other
action hereunder, the Capital Securities Guarantee Trustee (i)
may request instructions from the Holders of a Majority in
liquidation amount of the Series B Capital Securities, (ii) may
refrain from enforcing such remedy or right or taking such other
action until such instructions are received, and (iii) shall be
protected in conclusively relying on or acting in accordance with
such instructions.
(xi) The Capital Securities Guarantee Trustee shall not
be liable for any action taken, suffered, or omitted to be taken
by it in good faith, without negligence, and reasonably believed
by it to be authorized or within the discretion or rights or
powers conferred upon it by this Series B Capital Securities
Guarantee.
b. No provision of this Series B Capital Securities Guarantee
shall be deemed to impose any duty or obligation on the Capital
Securities Guarantee 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 Capital
Securities Guarantee 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 Capital Securities Guarantee
Trustee shall be construed to be a duty.
SECTION 3.3 Not Responsible for Recitals or Issuance of Series
B Capital Securities Guarantee
The recitals contained in this Series B Capital Securities
Guarantee shall be taken as the statements of the Guarantor, and the
Capital Securities Guarantee Trustee does not assume any
responsibility for their correctness. The Capital Securities
Guarantee Trustee makes no representation as to the validity or
sufficiency of this Series B Capital Securities Guarantee.
ARTICLE 4
CAPITAL SECURITIES GUARANTEE TRUSTEE
SECTION 4.1 Capital Securities Guarantee Trustee; Eligibility
a. There shall at all times be a Capital Securities Guarantee
Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business
under the laws of the United States of America or any State or
Territory thereof or of the District of Columbia, or a
corporation or Person permitted by the Securities and Exchange
Commission to act as an institutional trustee under the Trust
Indenture Act, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least
50 million U.S. dollars ($50,000,000), and subject to supervision
or examination by Federal, State, Territorial or District of
Columbia authority.If such corporation publishes reports of
condition at least annually, pursuant to law or to the
requirements of the supervising or examining authority referred
to above, then, for the purposes of this Section 4.1(a)(ii), the
combined capital and surplus of such corporation shall be deemed
to be its combined capital and surplus as set forth in its most
recent report of condition so published.
b. If at any time the Capital Securities Guarantee Trustee
shall cease to be eligible to so act under Section 4.1(a), the Capital
Securities Guarantee Trustee shall immediately resign in the manner
and with the effect set out in Section 4.2(c).
c. If the Capital Securities Guarantee Trustee has or shall
acquire any "conflicting interest" within the meaning of Section
310(b) of the Trust Indenture Act, the Capital Securities Guarantee
Trustee and Guarantor shall in all respects comply with the provisions
of Section 310(b) of the Trust Indenture Act.
SECTION 4.2 Appointment, Removal and Resignation of Capital
Securities Guarantee Trustee
a. Subject to Section 4.2(b), the Capital Securities Guarantee
Trustee may be appointed or removed without cause at any time by the
Guarantor except during an Event of Default.
b. The Capital Securities Guarantee Trustee shall not be
removed in accordance with Section 4.2(a) until a Successor Capital
Securities Guarantee Trustee has been appointed and has accepted such
appointment by written instrument executed by such Successor Capital
Securities Guarantee Trustee and delivered to the Guarantor.
c. The Capital Securities Guarantee Trustee shall hold office
until a Successor Capital Securities Guarantee Trustee shall have been
appointed or until its removal or resignation. The Capital Securities
Guarantee Trustee may resign from office (without need for prior or
subsequent accounting) by an instrument in writing executed by the
Capital Securities Guarantee Trustee and delivered to the Guarantor,
which resignation shall not take effect until a Successor Capital
Securities Guarantee Trustee has been appointed and has accepted such
appointment by instrument in writing executed by such Successor
Capital Securities Guarantee Trustee and delivered to the Guarantor
and the resigning Capital Securities Guarantee Trustee.
d. If no Successor Capital Securities Guarantee Trustee shall
have been appointed and accepted appointment as provided in this
Section 4.2 within 60 days after delivery of an instrument of removal
or resignation, the Capital Securities Guarantee Trustee resigning or
being removed may petition any court of competent jurisdiction for
appointment of a Successor Capital Securities Guarantee Trustee. Such
court may thereupon, after prescribing such notice, if any, as it may
deem proper, appoint a Successor Capital Securities Guarantee Trustee.
e. No Capital Securities Guarantee Trustee shall be liable for
the acts or omissions to act of any Successor Capital Securities
Guarantee Trustee.
f. Upon termination of this Series B Capital Securities
Guarantee or removal or resignation of the Capital Securities
Guarantee Trustee pursuant to this Section 4.2, the Guarantor shall
pay to the Capital Securities Guarantee Trustee all amounts due to the
Capital Securities Guarantee Trustee accrued to the date of such
termination, removal or resignation.
ARTICLE 5
GUARANTEE
SECTION 5.1 Guarantee
The Guarantor irrevocably and unconditionally agrees to pay in
full to the Holders the Guarantee Payments (without duplication of
amounts theretofore paid by the Issuer), as and when due, regardless
of any defense, right of set-off or counterclaim that the Issuer may
have or assert. The Guarantor's obligation to make a Guarantee Payment
may be satisfied by direct payment of the required amounts by the
Guarantor to the Holders or by causing the Issuer to pay such amounts
to the Holders.
SECTION 5.2 Waiver of Notice and Demand
The Guarantor hereby waives notice of acceptance of this Series A
Capital Securities Guarantee and of any liability to which it applies
or may apply, presentment, demand for payment, any right to require a
proceeding first against the Issuer or any other Person before
proceeding against the Guarantor, protest, notice of nonpayment,
notice of dishonor, notice of redemption and all other notices and
demands.
SECTION 5.3 Obligations Not Affected
The obligations, covenants, agreements and duties of the
Guarantor under this Series B Capital Securities Guarantee shall in no
way be affected or impaired by reason of the happening from time to
time of any of the following:
a. the release or waiver, by operation of law or otherwise, of
the performance or observance by the Issuer of any express or implied
agreement, covenant, term or condition relating to the Series B
Capital Securities to be performed or observed by the Issuer;
b. the extension of time for the payment by the Issuer of all
or any portion of the Distributions, Redemption Price, Liquidation
Distribution or any other sums payable under the terms of the Series B
Capital Securities or the extension of time for the performance of any
other obligation under, arising out of, or in connection with, the
Series B Capital Securities (other than an extension of time for
payment of Distributions, Redemption Price, Liquidation Distribution
or other sum payable that results from the extension of any interest
payment period on the Debentures permitted by the Indenture);
c. any failure, omission, delay or lack of diligence on the
part of the Holders to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Holders pursuant to the
terms of the Series A Capital Securities, or any action on the part of
the Issuer granting indulgence or extension of any kind;
d. the voluntary or involuntary liquidation, dissolution, sale
of any collateral, receivership, insolvency, bankruptcy, assignment
for the benefit of creditors, reorganization, arrangement, composition
or readjustment of debt of, or other similar proceedings affecting,
the Issuer or any of the assets of the Issuer;
e. any invalidity of, or defect or deficiency in, the Series B
Capital Securities;
f. the settlement or compromise of any obligation guaranteed
hereby or hereby incurred;
g. the consummation of the Exchange Offer; or
h. any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor,
it being the intent of this Section 5.3 that the obligations of the
Guarantor with respect to the Guarantee Payments shall be absolute and
unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain consent of, the Guarantor with respect to the happening of any
of the foregoing.
SECTION 5.4 Rights of Holders
a. The Holders of a Majority in liquidation amount of the
Series B Capital Securities have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the
Capital Securities Guarantee Trustee in respect of this Series B
Capital Securities Guarantee or exercising any trust or power
conferred upon the Capital Securities Guarantee Trustee under this
Series B Capital Securities Guarantee.
b. If the Capital Securities Guarantee Trustee fails to enforce
this Series B Capital Securities Guarantee, any Holder of Series B
Capital Securities may institute a legal proceeding directly against
the Guarantor to enforce the Capital Securities Guarantee Trustee's
rights under this Series B Capital Securities Guarantee, without first
instituting a legal proceeding against the Issuer, the Capital
Securities Guarantee Trustee or any other person or entity. The
Guarantor waives any right or remedy to require that any action be
brought first against the Issuer or any other person or entity before
proceeding directly against the Guarantor.
SECTION 5.5 Guarantee of Payment
This Series B Capital Securities Guarantee creates a guarantee of
payment and not of collection.
SECTION 5.6 Subrogation
The Guarantor shall be subrogated to all (if any) rights of the
Holders of Series B Capital Securities against the Issuer in respect
of any amounts paid to such Holders by the Guarantor under this Series
B Capital Securities Guarantee; provided, however, that the Guarantor
shall not (except to the extent required by mandatory provisions of
law) be entitled to enforce or exercise any right that it may acquire
by way of subrogation or any indemnity, reimbursement or other
agreement, in all cases as a result of payment under this Series B
Capital Securities Guarantee, if, at the time of any such payment, any
amounts are due and unpaid under this Series B Capital Securities
Guarantee. If any amount shall be paid to the Guarantor in violation
of the preceding sentence, the Guarantor agrees to hold such amount in
trust for the Holders and to pay over such amount to the Holders.
SECTION 5.7 Independent Obligations
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the
Series B Capital Securities, and that the Guarantor shall be liable as
principal and as debtor hereunder to make Guarantee Payments pursuant
to the terms of this Series B Capital Securities Guarantee
notwithstanding the occurrence of any event referred to in subsections
(a) through (h), inclusive, of Section 5.3 hereof.
ARTICLE 6
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions
So long as any Capital Securities remain outstanding, the
Guarantor shall not (i) declare or pay any dividends or distributions
on, or redeem, purchase, acquire, or make a liquidation payment with
respect to, any of the Guarantor's capital stock (which includes
common and preferred stock) or (ii) make any payment of principal,
interest or premium, if any, on or repay or repurchase or redeem any
debt securities of the Guarantor (including any Other Debentures) that
rank pari passu with or junior in right of payment to the Debentures
or (iii) make any guarantee payments with respect to any guarantee by
the Guarantor of the debt securities of any subsidiary of the
Guarantor (including Other Guarantees) if such guarantee ranks pari
passu or junior in right of payment to the Debentures (other than (a)
dividends or distributions in shares of, or options, warrants, rights
to subscribe for or purchase shares of, common stock of the Guarantor,
(b) any declaration of a dividend in connection with the
implementation of a stockholder's rights plan, or the issuance of
stock under any such plan in the future, or the redemption or
repurchase of any such rights pursuant thereto, (c) payments under the
Capital Securities Guarantee, (d) as a result of a reclassification of
the Guarantor's capital stock or the exchange or the conversion of one
class or series of the Guarantor's capital stock for another class or
series of the Guarantor's capital stock, (e) the purchase of
fractional interests in shares of the Guarantor's capital stock
pursuant to the conversion or exchange provisions of such capital
stock or the security being converted or exchanged, and (f) purchases
of common stock related to the issuance of common stock or rights
under any of the Guarantor's benefit plans for its directors, officers
or employees or any of the Guarantor's dividend reinvestment plans) if
at such time (1) there shall have occurred any event of which the
Guarantor has actual knowledge that (A) is, or with the giving of
notice or the lapse of time, or both, would be an Event of Default and
(B) in respect of which the Guarantor shall not have taken reasonable
steps to cure, (2) if such Debentures are held by the Property
Trustee, the Guarantor shall be in default with respect to its payment
of any obligations under this Series B Capital Securities Guarantee or
(3) the Guarantor shall have given notice of its election of the
exercise of its right to extend the interest payment period pursuant
to Section 16.01 of the Indenture and any such extension shall be
continuing.
SECTION 6.2 Ranking
This Series B Capital Securities Guarantee will constitute an
unsecured obligation of the Guarantor and will rank (i) subordinate
and junior in right of payment to Senior Indebtedness (as defined in
the Indenture), to the same extent and in the same manner that the
Debentures are subordinated to Senior Indebtedness pursuant to the
Indenture (except as indicated below), it being understood that the
terms of Article XV of the Indenture shall apply to the obligations of
the Guarantor under this Series B Capital Securities Guarantee as if
(x) such Article XV were set forth herein in full and (y) such
obligations were substituted for the term "Securities" appearing in
such Article XV, except that with respect to Section 15.03 of the
Indenture only, the term "Senior Indebtedness" shall mean all
liabilities of the Guarantor, whether or not for money borrowed (other
than obligations in respect of Other Guarantees), (ii) pari passu with
the most senior preferred or preference stock now or hereafter issued
by the Guarantor and with any Other Guarantee (as defined herein) and
any Other Common Securities Guarantee and any guarantee now or
hereafter entered into by the Guarantor in respect of any preferred or
preference stock of any Affiliate of the Guarantor, and (iii) senior
to the Guarantor's common stock.
ARTICLE 7
TERMINATION
SECTION 7.1 Termination
This Series B Capital Securities Guarantee shall terminate and be
of no further force and effect (i) upon full payment of the Redemption
Price (as defined in the Declaration) of all Series B Capital
Securities, or (ii) upon liquidation of the Issuer, the full payment
of the amounts payable in accordance with the Declaration or the
distribution of the Debentures to the Holders of all of the Series B
Capital Securities. Notwithstanding the foregoing, this Series A
Capital Securities Guarantee will continue to be effective or will be
reinstated, as the case may be, if at any time any Holder of Series A
Capital Securities must restore payment of any sums paid under the
Series B Capital Securities or under this Series B Capital Securities
Guarantee.
ARTICLE 8
INDEMNIFICATION
SECTION 8.1 Exculpation
a. No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Guarantor or any Covered
Person for any loss, damage or claim incurred by reason of any act or
omission performed or omitted by such Indemnified Person in good faith
in accordance with this Series B Capital Securities Guarantee and in a
manner that such Indemnified Person reasonably believed to be within
the scope of the authority conferred on such Indemnified Person by
this Series B Capital Securities Guarantee or by law, except that an
Indemnified Person shall be liable for any such loss, damage or claim
incurred by reason of such Indemnified Person's negligence or willful
misconduct with respect to such acts or omissions.
b. An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Guarantor and upon such
information, opinions, reports or statements presented to the
Guarantor by any Person as to matters the Indemnified Person
reasonably believes are within such other Person's professional or
expert competence and who has been selected with reasonable care by or
on behalf of the Guarantor, including information, opinions, reports
or statements as to the value and amount of the assets, liabilities,
profits, losses, or any other facts pertinent to the existence and
amount of assets from which Distributions to Holders of Series B
Capital Securities might properly be paid.
SECTION 8.2 Indemnification
The Guarantor agrees to indemnify each Indemnified Person for,
and to hold each Indemnified Person harmless against, any and all
loss, liability, damage, claim or expense incurred without negligence
or bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder,
including the costs and expenses (including reasonable legal fees and
expenses) of defending itself against, or investigating, any claim or
liability in connection with the exercise or performance of any of its
powers or duties hereunder. The obligation to indemnify as set forth
in this Section 8.2 shall survive the termination of this Series B
Capital Securities Guarantee.
ARTICLE 9
MISCELLANEOUS
SECTION 9.1 Successors and Assigns
All guarantees and agreements contained in this Series B Capital
Securities Guarantee shall bind the successors,assigns, receivers,
trustees and representatives of the Guarantor and shall inure to the
benefit of the Holders of the Series B Capital Securities then
outstanding.
SECTION 9.2 Amendments
Except with respect to any changes that do not materially
adversely affect the rights of Holders (in which case no consent of
Holders will be required), this Series B Capital Securities Guarantee
may only be amended with the prior approval of the Holders of a
Majority in liquidation amount of the Securities (including the stated
amount that would be paid on redemption, liquidation or otherwise,
plus accrued and unpaid Distributions to the date upon which the
voting percentages are determined). The provisions of Section 12.2 of
the Declaration with respect to meetings of Holders of the Securities
apply to the giving of such approval.
SECTION 9.3 Notices
All notices provided for in this Series B Capital Securities
Guarantee shall be in writing, duly signed by the party giving such
notice, and shall be delivered, telecopied or mailed by first class
mail, as follows:
a. If given to the Issuer, in care of the Administrative
Trustee at the Issuer's mailing address set forth below (or such other
address as the Issuer may give notice of to the Capital Securities
Guarantee Trustee and the Holders of the Series B Capital Securities):
First of America Capital Trust I
c/o First of America Bank Corporation
211 South Rose Street
Kalamazoo, Michigan 49007
Attention:Samuel G. Stone
Senior Vice President and Treasurer
Telecopy: (616) 376-7016
b. If given to the Capital Securities Guarantee Trustee, at the
Capital Securities Guarantee Trustee's mailing address set forth below
(or such other address as the Capital Securities Guarantee Trustee may
give notice of to the Holders of the Series B Capital Securities):
The Bank of New York
101 Barclay Street, 21 West
New York, New York 10286
Attention: Corporate Trust Trustee Administration
Telecopy: (212) 815-5915
c. If given to the Guarantor, at the Guarantor's mailing
address set forth below (or such other address as the Guarantor may
give notice of to the Capital Securities Guarantee Trustee and the
Holders of the Series B Capital Securities):
First of America Bank Corporation
211 South Rose Street
Kalamazoo, Michigan 49007
Attention:Samuel G. Stone
Senior Vice President and Treasurer
Telecopy: (616) 376-7016
d. If given to any Holder of Series B Capital Securities, at
the address set forth on the books and records of the Issuer.
All such notices shall be deemed to have been given when received
in person, telecopied with receipt confirmed, or mailed by first class
mail, postage prepaid except that if a notice or other document is
refused delivery or cannot be delivered because of a changed address
of which no notice was given, such notice or other document shall be
deemed to have been delivered on the date of such refusal or inability
to deliver.
SECTION 9.4 Benefit
This Series B Capital Securities Guarantee is solely for the
benefit of the Holders of the Series B Capital Securities and, subject
to Section 3.1(a), is not separately transferable from the Series B
Capital Securities.
SECTION 9.5 Governing Law
THIS SERIES B CAPITAL SECURITIES GUARANTEE SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES.
THIS SERIES B CAPITAL SECURITIES GUARANTEE is executed as of the
day and year first above written.
FIRST OF AMERICA BANK CORPORATION,
as Guarantor
By:
Name:
Title:
THE BANK OF NEW YORK, as Capital
Securities Guarantee Trustee
By:
Name:
Title:
EXHIBIT 4.8
REGISTRATION RIGHTS AGREEMENT
Dated as of January 28, 1997
by and among
FIRST OF AMERICA BANK CORPORATION
FIRST OF AMERICA CAPITAL TRUST I
and
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
GOLDMAN, SACHS & CO. and
LEHMAN BROTHERS INC.
as Initial Purchasers
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the Agreement) is made
and entered into as of January 28, 1997 by and among First of America
Bank Corporation, a Michigan corporation (the Company), First of
America Capital Trust I, a business trust formed under the laws of the
state of Delaware (the Trust), and Merrill Lynch, Pierce, Fenner &
Smith Incorporated (Merrill Lynch), Goldman, Sachs & Co. and Lehman
Brothers Inc. (collectively, the Initial Purchasers).
This Agreement is made pursuant to the Purchase Agreement,
dated January 21, 1997 (the Purchase Agreement), among the Company, as
issuer of the 8.12% Junior Subordinated Deferrable Interest Debentures
due January 31, 2027, Series A (the Subordinated Debentures), the
Trust and the Initial Purchasers, which provides for, among other
things, the sale by the Trust to the Initial Purchasers of 150,000 of
the Trust's 8.12% Capital Securities, Series A, liquidation amount
$1,000 per Capital Security (the Capital Securities), the proceeds of
which will be used by the Trust to purchase Subordinated Debentures.
The Capital Securities, together with the Subordinated Debentures and
the Company's Capital Securities, Series A, Guarantee Agreement (the
Capital Securities Guarantee) are collectively referred to as the
Securities. In order to induce the Initial Purchasers to enter into
the Purchase Agreement, the Company and the Trust have agreed to
provide to the Initial Purchasers and their direct and indirect
transferees the registration rights set forth in this Agreement. The
execution and delivery of this Agreement is a condition to the closing
under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree
as follows:
1. Definitions. As used in this Agreement, the
following capitalized defined terms shall have the following meanings:
Advice shall have the meaning set forth in the last paragraph of
Section 3 hereof.
Applicable Period shall have the meaning set forth in Section
3(t) hereof.
Business Day shall mean a day that is not a Saturday, a Sunday,
or a day on which banking institutions in The City of New York or
Wilmington, Delaware are authorized or required to be closed.
Closing Time shall mean the Closing Time as defined in the
Purchase Agreement.
Company shall have the meaning set forth in the preamble to this
Agreement and also includes the Company's successors and permitted
assigns.
Declaration or Declaration of Trust shall mean the Amended and
Restated Declaration of Trust, dated as of the Closing Time, by the
trustees named therein and the Company as sponsor.
Depositary shall mean The Depository Trust Company, or any other
depositary appointed by the Trust; provided, however, that such
depositary must have an address in the Borough of Manhattan, The City
of New York.
Effectiveness Period shall have the meaning set forth in Section
2(b) hereof.
Exchange Act shall mean the Securities Exchange Act of 1934, as
amended from time to time.
Exchange Offer shall mean the offer by the Company and the Trust
to the Holders to exchange all of the Registrable Securities (other
than Private Exchange Securities) for a like principal amount of
Exchange Securities pursuant to Section 2(a) hereof.
Exchange Offer Registration shall mean a registration under the
Securities Act effected pursuant to Section 2(a) hereof.
Exchange Offer Registration Statement shall mean an exchange
offer registration statement on Form S-4 (or, if applicable, on
another appropriate form), and all amendments and supplements to such
registration statement, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated
by reference therein.
Exchange Period shall have the meaning set forth in Section 2(a)
hereof.
Exchange Securities shall mean (i) with respect to the
Subordinated Debentures, the 8.12% Junior Subordinated Deferrable
Interest Debentures due January 31, 2027, Series B (the Exchange
Debentures) containing terms identical to the Subordinated Debentures
(except that they will not contain terms with respect to the transfer
restrictions under the Securities Act, will not require transfers
thereof to be in minimum blocks of $100,000 principal amount and will
not provide for any increase in the interest rate thereon), (ii) with
respect to the Capital Securities, the Trust's 8.12% Capital
Securities, Series B, liquidation amount $1,000 per Capital Security
(the Exchange Capital Securities) containing terms identical to the
Capital Securities (except they will not contain terms with respect to
transfer restrictions under the Securities Act, will not require
minimum transfers thereof to be in blocks of $100,000 liquidation
amount and will not provide for any increase in the distribution rate
thereon) and (iii) with respect to the Capital Securities Guarantee,
the Company's guarantee (the Exchange Capital Securities Guarantee) of
the Exchange Capital Securities containing terms identical to the
Capital Securities Guarantee.
Holder shall mean each of the Initial Purchasers, for so long as
they own any Registrable Securities, and each of their respective
successors, assigns and direct and indirect transferees who become
registered owners of Registrable Securities under the Indenture or
Declaration of Trust.
Indenture shall mean the Indenture relating to the Subordinated
Debentures and the Exchange Debentures dated as of the Closing Time
between the Company, as issuer, and The Bank of New York, as trustee,
as the same may be amended from time to time in accordance with the
terms thereof.
Initial Purchasers shall have the meaning set forth in the
preamble to this Agreement.
Inspectors shall have the meaning set forth in Section 3(n)
hereof.
Issue Date shall mean the date of original issuance of the
Securities.
Liquidated Damages shall have the meaning set forth in Section
2(e) hereof.
Majority Holders shall mean the Holders of a majority of the
aggregate liquidation amount of outstanding Capital Securities.
Participating Broker-Dealer shall have the meaning set forth in
Section 3(t) hereof.
Person shall mean an individual, partnership, corporation, trust
or unincorporated organization, limited liability company, or a
government or agency or political subdivision thereof.
Private Exchange shall have the meaning set forth in Section 2(a)
hereof.
Private Exchange Securities shall have the meaning set forth in
Section 2(a) hereof.
Prospectus shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such
prospectus as amended or supplemented by any prospectus supplement,
including a prospectus supplement with respect to the terms of the
offering of any portion of the Registrable Securities covered by a
Shelf Registration Statement, and by all other amendments and
supplements to a prospectus, including post effective amendments, and
in each case including all material incorporated by reference therein.
Purchase Agreement shall have the meaning set forth in the
preamble to this Agreement.
Records shall have the meaning set forth in Section 3(n) hereof.
Registration Default shall have the meaning set forth in Section
2(e) hereof.
Registrable Securities shall mean the Securities and, if issued,
the Private Exchange Securities; provided, however, that Securities or
Private Exchange Securities, as the case may be, shall cease to be
Registrable Securities when (i) a Registration Statement with respect
to such Securities or Private Exchange Securities for the exchange or
resale thereof, as the case may be, shall have been declared effective
under the Securities Act and such Securities or Private Exchange
Securities, as the case may be, shall have been disposed of pursuant
to such Registration Statement, (ii) such Securities or Private
Exchange Securities, as the case may be, shall have been sold to the
public pursuant to Rule 144(k) (or any similar provision then in
force, but not Rule 144A) under the Securities Act, (iii) such
Securities or Private Exchange Securities, as the case may be, shall
have ceased to be outstanding or (iv) with respect to the Securities,
such Securities have been exchanged for Exchange Securities upon
consummation of the Exchange Offer and are thereafter freely tradeable
by the holder thereof (other than an affiliate of the Company).
Registration Expenses shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement,
including without limitation: (i) all SEC or National Association of
Securities Dealers, Inc. (the NASD) registration and filing fees,
including, if applicable, the fees and expenses of any qualified
independent underwriter (and the reasonable fees and expenses of its
counsel) that is required to be retained by any Holder of Registrable
Securities in accordance with the rules and regulations of the NASD,
(ii) all fees and expenses incurred in connection with compliance with
state securities or blue sky laws (including reasonable fees and
disbursements of counsel for any underwriters or Holders in connection
with blue sky qualification of any of the Exchange Securities or
Registrable Securities) and compliance with the rules of the NASD,
(iii) all expenses of any Persons in preparing or assisting in
preparing, word processing, printing and distributing any Registration
Statement, any Prospectus and any amendments or supplements thereto,
and in preparing or assisting in preparing, printing and distributing
any underwriting agreements, securities sales agreements and other
documents relating to the performance of and compliance with this
Agreement, (iv) all rating agency fees, (v) the fees and disbursements
of counsel for the Company and of the independent certified public
accountants of the Company, including the expenses of any cold
comfort letters required by or incident to such performance and
compliance, (vi) the fees and expenses of the Trustee, and any
exchange agent or custodian, (vii) all fees and expenses incurred in
connection with the listing, if any, of any of the Registrable
Securities on any securities exchange or exchanges, and (viii) the
reasonable fees and expenses of any special experts retained by the
Company in connection with any Registration Statement.
Registration Statement shall mean any registration statement of
the Company and the Trust which covers any of the Exchange Securities
or Registrable Securities pursuant to the provisions of this
Agreement, and all amendments and supplements to any such Registration
Statement, including post-effective amendments, in each case including
the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
Rule 144(k) Period shall mean the period of three years (or such
shorter period as may hereafter be referred to in Rule 144(k) under
the Securities Act (or similar successor rule)) commencing on the
Issue Date.
SEC shall mean the United States Securities and Exchange
Commission.
Securities shall have the meaning set forth in the preamble to
this Agreement.
Securities Act shall mean the Securities Act of 1933, as amended
from time to time.
Shelf Registration shall mean a registration effected pursuant to
Section 2(b) hereof.
Shelf Registration Event shall have the meaning set forth in
Section 2(b) hereof.
Shelf Registration Event Date shall have the meaning set forth in
Section 2(b) hereof.
Shelf Registration Statement shall mean a shelf registration
statement of the Company and the Trust pursuant to the provisions of
Section 2(b) hereof which covers all of the Registrable Securities or
all of the Private Exchange Securities, as the case may be, on an
appropriate form under Rule 415 under the Securities Act, or any
similar rule that may be adopted by the SEC, and all amendments and
supplements to such registration statement, including post-effective
amendments, in each case including the Prospectus contained therein,
all exhibits thereto and all material incorporated by reference
therein.
TIA shall have the meaning set forth in Section 3(1) hereof.
Trustees shall mean any and all trustees with respect to (i) the
Capital Securities under the Declaration, (ii) the Subordinated
Debentures under the Indenture and (iii) the Capital Securities
Guarantee.
2. Registration Under the Securities Act.
a. Exchange Offer. To the extent not prohibited by
any applicable law or applicable interpretation of the staff of the
SEC, the Company and the Trust shall, for the benefit of the Holders,
at the Company's cost, use their best efforts to (i) cause to be filed
with the SEC within 150 days after the Issue Date an Exchange Offer
Registration Statement on an appropriate form under the Securities Act
covering the Exchange Offer, (ii) cause such Exchange Offer
Registration Statement to be declared effective under the Securities
Act by the SEC not later than the date which is 180 days after the
Issue Date, and (iii) keep such Exchange Offer Registration Statement
effective for not less than 30 calendar days (or longer if required by
applicable law) after the date notice of the Exchange Offer is mailed
to the Holders. Upon the effectiveness of the Exchange Offer
Registration Statement, the Company and the Trust shall promptly
commence the Exchange Offer, it being the objective of such Exchange
Offer to enable each Holder eligible and electing to exchange
Registrable Securities for a like principal amount of Exchange
Debentures or a like liquidation amount of Exchange Capital
Securities, together with the Exchange Guarantee, as applicable
(provided that such Holder (A) is not an affiliate of the Company
within the meaning of Rule 405 under the Securities Act, (B) is not a
broker-dealer tendering Registrable Securities acquired directly from
the Trust for its own account, (C) acquires the Exchange Securities in
the ordinary course of such Holder's business and (D) has no
arrangements or understandings with any Person to participate in the
Exchange Offer for the purpose of distributing the Exchange
Securities) to transfer such Exchange Securities from and after their
receipt without any limitations or restrictions under the Securities
Act and under state securities or blue sky laws.
In connection with the Exchange Offer, the Company and the Trust
shall:
(i) mail to each Holder a copy of the Prospectus forming part
of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of
not less than 30 days after the date notice thereof is mailed to the
Holders (or longer if required by applicable law) (such period
referred to herein as the Exchange Period);
(iii) utilize the services of the Depositary for the Exchange
Offer:
(iv) permit Holders to withdraw tendered Securities at any time
prior to the close of business, New York City time, on the last
Business Day of the Exchange Period, by sending to the institution
specified in the notice, a telegram, telex, facsimile transmission or
letter setting forth the name of such Holder, the principal amount of
Securities delivered for exchange, and a statement that such Holder is
withdrawing his election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered by such
Holder in the Exchange Offer will remain outstanding and continue to
accrue interest or accumulate distributions, as the case may be, but
will not retain any rights under this Agreement (except in the case of
the Initial Purchasers and Participating Broker-Dealers as provided
herein); and
(vi) otherwise comply in all respects with all applicable laws
relating to the Exchange Offer.
If any Initial Purchaser determines upon advice of its
outside counsel that it is not eligible to participate in the Exchange
Offer with respect to the exchange of Securities constituting any
portion of an unsold allotment in the initial placement, as soon as
practicable upon receipt by the Company and the Trust of a written
request from such Initial Purchaser, the Company and the Trust, as
applicable, shall issue and deliver to such Initial Purchaser in
exchange (the Private Exchange) for the Securities held by such
Initial Purchaser, a like liquidation amount of Capital Securities of
the Trust, together with the Exchange Guarantee, or a like principal
amount of the Subordinated Debentures of the Company, as applicable,
that are identical (except that such securities may bear a customary
legend with respect to restrictions on transfer pursuant to the
Securities Act) to the Exchange Securities (the Private Exchange
Securities) and which are issued pursuant to the Indenture, the
Declaration or the Guarantee (which provides that the Exchange
Securities will not be subject to the transfer restrictions set forth
in the Indenture or the Declaration, as applicable, and that the
Exchange Securities, the Private Exchange Securities and the
Securities will vote and consent together on all matters as one class
and that neither the Exchange Securities, the Private Exchange
Securities nor the Securities will have the right to vote or consent
as a separate class on any matter). The Private Exchange Securities
shall be of the same series as the Exchange Securities and the Company
and the Trust will seek to cause the CUSIP Service Bureau to issue the
same CUSIP Numbers for the Private Exchange Securities as for the
Exchange Securities issued pursuant to the Exchange Offer.
As soon as practicable after the close of the Exchange Offer
and, if applicable, the Private Exchange, the Company and the Trust,
as the case requires, shall:
(i) accept for exchange all Securities or portions thereof
tendered and not validly withdrawn pursuant to the Exchange Offer or
the Private Exchange;
(ii) deliver, or cause to be delivered, to the applicable
Trustee for cancellation all Securities or portions thereof so
accepted for exchange by the Company; and
(iii) issue, and cause the applicable Trustee under the
Indenture, the Declaration or the Guarantee, as applicable, to
promptly authenticate and deliver to each Holder, Exchange Securities
or Private Exchange Securities, as applicable, equal in principal
amount to the principal amount of the Subordinated Debentures or equal
in liquidation amount to the liquidation amount of the Capital
Securities (together with the guarantee thereof) as are surrendered by
such Holder.
Distributions on each Exchange Capital Security and interest
on each Exchange Debenture and Private Exchange Security issued
pursuant to the Registered Exchange Offer and in the Private Exchange
will accrue from the last date on which a Distribution or interest was
paid on the Capital Security or the Subordinated Debenture surrendered
in exchange therefor or, if no Distribution or interest has been paid
on such Capital Security or Subordinated Debenture, from the Issue
Date.
To the extent not prohibited by any law or applicable
interpretation of the staff of the SEC, the Company and the Trust
shall use their best efforts to complete the Exchange Offer as
provided above, and shall comply with the applicable requirements of
the Securities Act, the Exchange Act and other applicable laws in
connection with the Exchange Offer. The Exchange Offer shall not be
subject to any conditions other than (i) the Exchange Offer not
violating applicable law or any applicable interpretation of the staff
of the SEC and (ii) there not being a reasonable likelihood that, or a
material uncertainty as to whether, consummation of the Exchange Offer
would result in a material adverse tax consequence to the Company.
Each Holder of Registrable Securities that wishes to exchange such
Registrable Securities for Exchange Securities in the Exchange Offer
will be required to make certain customary representations in
connection therewith, including, in the case of any Holder of Capital
Securities, representations that (i) it is not an affiliate of the
Trust or the Company, (ii) the Exchange Securities to be received by
it were acquired in the ordinary course of its business and (iii) at
the time of the Exchange Offer, it has no arrangement with any person
to participate in the distribution (within the meaning of the
Securities Act) of the Exchange Capital Securities. The Company and
the Trust shall inform the Initial Purchasers, after consultation with
the Trustee, of the names and addresses of the Holders to which the
Exchange Offer is made, and the Initial Purchasers shall have the
right to contact such Holders and otherwise facilitate the tender of
Registrable Securities in the Exchange Offer. Upon reasonable request
by the Company, the Initial Purchasers shall inform the Company as to
the nature of such contacts with the Holders.
Upon consummation of the Exchange Offer in accordance with
this Section 2(a), the provisions of this Agreement shall continue to
apply, mutatis mutandis, solely with respect to Registrable Securities
that are Private Exchange Securities and Exchange Securities held by
Participating Broker-Dealers, and the Company and the Trust shall have
no further obligation to register the Registrable Securities (other
than Private Exchange Securities) pursuant to Section 2(b) of this
Agreement.
b. Shelf Registration. In the event that (i) the Company,
the Trust or the Majority Holders reasonably determine, after
conferring with counsel (which may be in-house counsel), that the
Exchange Offer Registration provided in Section 2(a) above is not
available because of any change in law or because of then prevailing
interpretations of the staff of the SEC, (ii) the Company shall
determine in good faith that there is a reasonable likelihood that, or
a material uncertainty exists as to whether, consummation of the
Exchange Offer would result in a material adverse tax consequence to
the Company, (iii) the Exchange Offer Registration Statement is not
declared effective for any reason within 180 days of the Issue Date or
(iv) upon the request of any Initial Purchaser with respect to any
Registrable Securities held by it, if such Initial Purchaser is not
permitted, in the reasonable opinion of Brown & Wood LLP, pursuant to
applicable law or applicable interpretations of the staff of the SEC,
to participate in the Exchange Offer and thereby receive securities
that are freely tradeable without restriction under the Securities Act
and applicable blue sky or state securities laws (any of the events
specified in (i)-(iv) being a Shelf Registration Event and the date of
occurrence thereof, the Shelf Registration Event Date), the Company
and the Trust shall, at their cost, use their best efforts to cause to
be filed as promptly as practicable after such Shelf Registration
Event Date, as the case may be, and, in any event, within 45 days
after such Shelf Registration Event Date (which shall be no earlier
than 75 days after the Closing Time), a Shelf Registration Statement
providing for the sale by the Holders of all of the Registrable
Securities, and shall use their best efforts to have such Shelf
Registration Statement declared effective by the SEC as soon as
practicable. No Holder of Registrable Securities shall be entitled to
include any of its Registrable Securities in any Shelf Registration
pursuant to this Agreement unless and until such Holder agrees in
writing to be bound by all of the provisions of this Agreement
applicable to such Holder and furnishes to the Company and the Trust
in writing, within 15 days after receipt of a request therefor, such
information as the Company and the Trust may, after conferring with
counsel with regard to information relating to Holders that would be
required by the SEC to be included in such Shelf Registration
Statement or Prospectus included therein, reasonably request for
inclusion in any Shelf Registration Statement or Prospectus included
therein. Each Holder as to which any Shelf Registration is being
effected agrees to furnish to the Company and the Trust all
information with respect to such Holder necessary to make the
information previously furnished to the Company or the Trust by such
Holder not materially misleading.
The Company and the Trust agree to use their best efforts to
keep the Shelf Registration Statement continuously effective for the
Rule 144(k) Period (subject to extension pursuant to the last
paragraph of Section 3 hereof) or for such shorter period that will
terminate when all of the Registrable Securities covered by the Shelf
Registration Statement have been sold pursuant to the Shelf
Registration Statement or cease to be outstanding (the Effectiveness
Period). The Company and the Trust shall not permit any securities
other than Registrable Securities to be included in the Shelf
Registration. The Company and the Trust will, in the event a Shelf
Registration Statement is declared effective, provide to each Holder a
reasonable number of copies of the Prospectus that is a part of the
Shelf Registration Statement, notify each such Holder when the Shelf
Registration has become effective and use their best efforts to take
certain other actions as are required to permit certain unrestricted
resales of the Registrable Securities. The Company and the Trust
further agree, if necessary, to supplement or amend the Shelf
Registration Statement, if required by the rules, regulations or
instructions applicable to the registration form used by the Company
for such Shelf Registration Statement or by the Securities Act or by
any other rules and regulations thereunder for shelf registrations,
and the Company and the Trust agree to furnish to the Holders of
Registrable Securities copies of any such supplement or amendment
promptly after its being used or filed with the SEC. Notwithstanding
the foregoing agreement of the Company and the Trust to supplement or
amend the Shelf Registration Statement, the Company and the Trust may
require the Holders to suspend sales of the Registrable Securities
pursuant to the Shelf Registration Statement for a reasonable period
not to exceed 30 days if the Company determines in good faith that
such sales might (1) interfere with or affect the negotiation or
completion of any transaction as being contemplated by the Company
(whether or not a final decision has been made to undertake such
transaction) at the time the right to suspend sales is exercised or
(2) involve initial or continuing disclosure obligations that might
not be in the best interest of the Company's shareholders. The period
referred to herein during which the Shelf Registration Statement must
be kept current after its effective date shall be extended for an
additional number of business days equal to the number of business
days during which the Holders' rights to sell Registrable Securities
was suspended pursuant to the preceding sentence.
c. Expenses. The Company shall pay all Registration
Expenses in connection with the registration pursuant to Section 2(a)
or 2(b) hereof and will reimburse the Initial Purchasers for the
reasonable fees and disbursements of Brown & Wood LLP, counsel for the
Initial Purchasers, incurred in connection with the Exchange Offer
and, if applicable, the Private Exchange Offer, and either Brown &
Wood LLP or any one other counsel designated in writing by the
Majority Holders to act as counsel for the Holders of the Registrable
Securities in connection with a Shelf Registration Statement, which
other counsel shall be reasonably satisfactory to the Company. Except
as provided herein, each Holder shall pay all expenses of its counsel,
underwriting discounts and commissions and transfer taxes if any,
relating to the sale or disposition of such Holder s Registrable
Securities pursuant to the Shelf Registration Statement.
d. Effective Registration Statement. An Exchange Offer
Registration Statement pursuant to Section 2(a) hereof or a Shelf
Registration Statement pursuant to Section 2(b) hereof will not be
deemed to have become effective unless it has been declared effective
by the SEC; provided, however, that if, after it has been declared
effective, the offering of Registrable Securities pursuant to a Shelf
Registration Statement is interfered with by any stop order,
injunction or other order or requirement of the SEC or any other
governmental agency or court, such Registration Statement will be
deemed not to have been effective during the period of such
interference, until the offering of Registrable Securities pursuant to
such Registration Statement may legally resume. The Company and the
Trust will be deemed not to have used their best efforts to cause the
Exchange Offer Registration Statement or the Shelf Registration
Statement, as the case may be, to become, or to remain, effective
during the requisite period if either of them voluntarily takes any
action that would result in any such Registration Statement not being
declared effective or in the Holders of Registrable Securities covered
thereby not being able to exchange or offer and sell such Registrable
Securities during that period, unless such action is required by
applicable law.
e. Liquidated Damages. In the event that: 1. (A) neither
the Exchange Offer Registration Statement nor a Shelf Registration
Statement is filed with the SEC on or prior to the 150th day after the
Issue Date or (B) notwithstanding that the Company and the Trust have
consummated or will consummate an Exchange Offer, the Company and the
Trust are required to file a Shelf Registration Statement and such
Shelf Registration Statement is not filed on or prior to the date
required by Section 2(b) hereof, then commencing on the day after the
applicable required filing date, additional interest shall accrue on
the principal amount of the Subordinated Debentures, and additional
Distributions shall accumulate on the liquidation amount of the
Capital Securities, each at a rate of 0.25% per annum;
(ii) (A) neither the Exchange Offer Registration Statement nor a
Shelf Registration Statement is declared effective by the SEC on or
prior to the 30th day after the applicable required filing date or
(B) notwithstanding that the Company and the Trust have consummated an
Exchange Offer, the Company and the Trust are required to file a Shelf
Registration Statement and such Shelf Registration Statement is not
declared effective by the SEC on or prior to the 30th day after the
date such Shelf Registration Statement was required to be filed, then,
commencing on the 31st day after the applicable required filing date,
additional interest shall accrue on the principal amount of the
Subordinated Debentures and additional distributions shall accumulate
on the liquidation amount of the Capital Securities, each at a rate of
0.25% per annum; or
(iii) (A) the Trust has not accepted for exchange the
Exchange Capital Securities for all Capital Securities validly
tendered or the Company has not accepted for exchange the Exchange
Guarantee or Exchange Subordinated Debentures for the Capital
Securities Guarantee or Subordinated Debentures validly tendered, in
accordance with the terms of the Exchange Offer, on or prior to the
30th day after the date on which the Exchange Offer Registration
Statement was declared effective or (B) if applicable, the Shelf
Registration Statement has been declared effective and such Shelf
Registration Statement ceases to be effective at any time prior to the
expiration of the Rule 144(k) Period (other than after such time as
all Capital Securities have been disposed of thereunder or otherwise
cease to be Registrable Securities), then additional interest shall
accrue on the principal amount of Subordinated Debentures, and
additional distributions shall accumulate on the liquidation amount of
the Capital Securities, each at a rate of 0.25% per annum commencing
on (x) the 31st day after such effective date, in the case of
(A) above, or (y) the day such Shelf Registration Statement ceases to
be effective in the case of (B) above;
provided, however, that neither the additional interest rate on the
Subordinated Debentures, nor the additional distribution rate on the
liquidation amount of the Capital Securities, may exceed in the
aggregate 0.25% per annum; provided further, however, that (1) upon
the filing of the Exchange Offer Registration Statement or a Shelf
Registration Statement (in the case of clause (i) above), (2) upon the
effectiveness of the Exchange Offer Registration Statement or a Shelf
Registration Statement (in the case of clause (ii) above), or (3) upon
the acceptance for exchange of the Exchange Capital Securities, the
Exchange Guarantee and the Exchange Subordinated Debentures for all
Capital Securities, the Capital Securities Guarantee and the
Subordinated Debentures tendered (in the case of clause (iii)(A)
above), or upon the effectiveness of the Shelf Registration Statement
which had ceased to remain effective (in the case of clause (iii)(B)
above), additional interest on the Subordinated Debentures and
additional distributions on the liquidation amount of the Capital
Securities as a result of such clause (or the relevant subclause
thereof), as the case may be, shall cease to accrue or accumulate, as
the case may be.
Any amounts of additional interest and additional distributions
due pursuant to Section 2(e)(i), (ii) or (iii) above will be payable
in cash on the relevant record dates for the payment of interest and
distributions pursuant to the Indenture and the Declaration,
respectively.
f. Specific Enforcement. Without limiting the remedies
available to the Holders, the Company and the Trust acknowledge that
any failure by the Company or the Trust to comply with its obligations
under Section 2(a) and Section 2(b) hereof may result in material
irreparable injury to the Holders for which there is no adequate
remedy at law, that it would not be possible to measure damages for
such injuries precisely and that, in the event of any such failure,
any Holder may obtain such relief as may be required to specifically
enforce the obligations of the Company and the Trust under Section
2(a) and Section 2(b) hereof.
3. Registration Procedures. In connection with the
obligations of the Company and the Trust with respect to the
Registration Statements pursuant to Sections 2(a) and 2(b) hereof, the
Company and the Trust shall use their best efforts to:
a. prepare and file with the SEC a Registration Statement
or Registration Statements as prescribed by Sections 2(a) and
2(b) hereof within the relevant time period specified in Section
2 hereof on the appropriate form under the Securities Act, which
form (i) shall be selected by the Company and the Trust,
(ii) shall, in the case of a Shelf Registration, be available for
the sale of the Registrable Securities by the selling Holders
thereof and (iii) shall comply as to form in all material
respects with the requirements of the applicable form and include
or incorporate by reference all financial statements required by
the SEC to be filed therewith; and use its best efforts to cause
such Registration Statement to become effective and remain
effective in accordance with Section 2 hereof; provided, however,
that if (1) such filing is pursuant to Section 2(b), or (2) a
Prospectus contained in an Exchange Offer Registration Statement
filed pursuant to Section 2(a) is required to be delivered under
the Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Securities, before filing any Registration
Statement or Prospectus or any amendments or supplements thereto,
the Company and the Trust shall furnish to and afford the Holders
of the Registrable Securities and each such Participating
Broker-Dealer, as the case may be, covered by such Registration
Statement, their counsel and the managing underwriters, if any, a
reasonable opportunity to review copies of all such documents
(including copies of any documents to be incorporated by
reference therein and all exhibits thereto) proposed to be filed.
The Company and the Trust shall afford Holders an opportunity to
review any Registration Statement or Prospectus or any amendments
or supplements thereto prior to the filing of such document and
shall not file any such document if the Majority Holders or such
Participating Broker-Dealer, as the case may be, their counsel or
the managing underwriters, if any, shall reasonably object;
b. prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may
be necessary to keep such Registration Statement effective for
the Effectiveness Period or the Applicable Period, as the case
may be; and cause each Prospectus to be supplemented, if so
determined by the Company or the Trust or requested by the SEC,
by any required prospectus supplement and as so supplemented to
be filed pursuant to Rule 424 (or any similar provision then in
force) under the Securities Act, and comply with the provisions
of the Securities Act, the Exchange Act and the rules and
regulations promulgated thereunder applicable to it with respect
to the disposition of all securities covered by each Registration
Statement during the Effectiveness Period or the Applicable
Period, as the case may be, in accordance with the intended
method or methods of distribution by the selling Holders thereof
described in this Agreement (including sales by any Participating
Broker-Dealer);
c. in the case of a Shelf Registration, (i) notify each
Holder of Registrable Securities included in the Shelf
Registration Statement, at least three Business Days prior to
filing, that a Shelf Registration Statement with respect to the
Registrable Securities is being filed and advise each such Holder
that the distribution of Registrable Securities will be made in
accordance with the method selected by the Majority Holders; and
(ii) furnish to each Holder of Registrable Securities included in
the Shelf Registration Statement and to each underwriter of an
underwritten offering of Registrable Securities, if any, without
charge, as many copies of each Prospectus, including each
preliminary Prospectus, and any amendment or supplement thereto,
and such other documents as such Holder or underwriter may
reasonably request, in order to facilitate the public sale or
other disposition of the Registrable Securities; and
(iii) consent to the use of the Prospectus or any amendment or
supplement thereto by each of the selling Holders of Registrable
Securities included in the Shelf Registration Statement in
connection with the offering and sale of the Registrable
Securities covered by the Prospectus or any amendment or
supplement thereto;
d. in the case of a Shelf Registration, register or
qualify, by the time the applicable Registration Statement is
declared effective by the SEC, the Registrable Securities under
all applicable state securities or blue sky laws of such
jurisdictions as any Holder of Registrable Securities covered by
a Registration Statement and each underwriter of an underwritten
offering of Registrable Securities shall reasonably request in
writing reasonably in advance of such date of effectiveness, and
do any and all other acts and things that may be reasonably
necessary or advisable to enable such Holder and underwriter to
consummate the disposition in each such jurisdiction of such
Registrable Securities owned by such Holder; provided, however,
that neither the Company nor the Trust shall be required to
(i) qualify as a foreign corporation or as a dealer in securities
in any jurisdiction where it would not otherwise be required to
qualify but for this Section 3(d), (ii) file any general consent
to service of process in any jurisdiction where it would not
otherwise be subject to such service of process or (iii) subject
itself to taxation in any such jurisdiction if it is not then so
subject;
e. in the case of (1) a Shelf Registration or
(2) Participating Broker-Dealers from whom the Company or the
Trust has received prior written notice that they will be
utilizing the Prospectus contained in the Exchange Offer
Registration Statement as provided in Section 3(t) hereof, are
seeking to sell Exchange Securities and are required to deliver
Prospectuses, notify each Holder of Registrable Securities, or
such Participating Broker-Dealers, as the case may be, their
counsel and the managing underwriters, if any, promptly and
promptly confirm such notice in writing (i) when a Registration
Statement has become effective and when any post-effective
amendment or supplement thereto becomes effective, (ii) of any
request by the SEC or any state securities authority for
amendments and supplements to a Registration Statement or
Prospectus or for additional information after the Registration
Statement has become effective, (iii) of the issuance by the SEC
or any state securities authority of any stop order suspending
the effectiveness of a Registration Statement or the
qualification of the Registrable Securities or the Exchange
Securities to be offered or sold by any Participating
Broker-Dealer in any jurisdiction described in paragraph 3(d)
hereof or the initiation of any proceedings for that purpose,
(iv) in the case of a Shelf Registration, if, between the
effective date of a Registration Statement and the closing of any
sale of Registrable Securities covered thereby, any of the
representations and warranties of the Company and the Trust
contained in any purchase agreement, securities sales agreement
or other similar agreement, ceases to be true and correct in all
material respects, (v) of the happening of any event or the
failure of any event to occur or the discovery of any facts or
otherwise, during the Effectiveness Period, that makes any
statement made in such Registration Statement or the related
Prospectus untrue in any material respect or that causes such
Registration Statement or Prospectus to omit to state a material
fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading and
(vi) of the reasonable determination by the Company and the Trust
that a post-effective amendment to the Registration Statement
would be appropriate;
f. use reasonable best efforts to obtain the withdrawal of
any order suspending the effectiveness of a Registration
Statement at the earliest possible moment;
g. in the case of a Shelf Registration, furnish to each
Holder of Registrable Securities included within the coverage of
such Shelf Registration Statement, without charge, at least one
conformed copy of each Registration Statement relating to such
Shelf Registration and any post-effective amendment thereto
(without documents incorporated therein by reference or exhibits
thereto, unless requested);
h. in the case of a Shelf Registration, cooperate with the
selling Holders of Registrable Securities to facilitate the
timely preparation and delivery of certificates representing
Registrable Securities to be sold and not bearing any restrictive
legends and in such denominations (consistent with the provisions
of the Indenture and the Declaration) and registered in such
names as the selling Holders or the underwriters may reasonably
request at least two Business Days prior to the closing of any
sale of Registrable Securities pursuant to such Shelf
Registration Statement;
i. in the case of a Shelf Registration or an Exchange
Offer Registration, upon the occurrence of any circumstance
contemplated by Section 3(e)(ii), 3(e)(iii), 3(e)(v) or 3(e)(vi)
hereof, prepare a supplement or post-effective amendment to a
Registration Statement or the related Prospectus or any document
incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of
the Registrable Securities, such Prospectus will not include an
untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading, and to notify each Holder to suspend use of the
Prospectus as promptly as practicable after the occurrence of
such an event, and each Holder hereby agrees to suspend use of
the Prospectus until the Company has amended or supplemented the
Prospectus to correct such misstatement or omission;
j. in the case of a Shelf Registration, a reasonable time
prior to the filing of any document that is to be incorporated by
reference into a Registration Statement or a Prospectus after the
initial filing of a Registration Statement, provide a reasonable
number of copies of such document to the Holders, and make such
of the representatives of the Company and the Trust as shall be
reasonably requested by the Holders of Registrable Securities or
the Initial Purchasers on behalf of such Holders reasonably
available for discussion of such document;
k. obtain a CUSIP number for all Exchange Capital
Securities and the Capital Securities (and if the Trust has made
a distribution of the Subordinated Debentures to the Holders of
the Capital Securities, the Subordinated Debentures or the
Exchange Subordinated Debentures), as the case may be, not later
than the effective date of a Registration Statement, and provide
the Trustee with printed certificates for the Exchange Securities
or the Registrable Securities, as the case may be, in a form
eligible for deposit with the Depositary;
l. cause the Indenture, the Declaration, the Guarantee and
the Exchange Guarantee to be qualified under the Trust Indenture
Act of 1939, as amended (the TIA ) in connection with the
registration of the Exchange Securities or Registrable
Securities, as the case may be, and effect such changes to such
documents as may be required for them to be so qualified in
accordance with the terms of the TIA and execute, and use its
best efforts to cause the relevant trustee to execute, all
documents as may be required to effect such changes, and all
other forms and documents required to be filed with the SEC to
enable such documents to be so qualified in a timely manner;
m. in the case of a Shelf Registration, enter into such
agreements (including underwriting agreements) as are customary
in underwritten offerings and take all such other appropriate
actions as are reasonably requested in order to expedite or
facilitate the registration or the disposition of such
Registrable Securities, and in such connection, whether or not an
underwriting agreement is entered into and whether or not the
registration is an underwritten registration, if requested by
(x) any Initial Purchaser, in the case where an Initial Purchaser
holds Securities acquired by it as part of its initial
distribution and (y) other Holders of Securities covered thereby:
(i) make such representations and warranties to Holders of such
Registrable Securities and the underwriters (if any), with
respect to the business of the Trust, the Company and its
subsidiaries as then conducted and the Registration Statement,
Prospectus and documents, if any, incorporated or deemed to be
incorporated by reference therein, in each case, as are
customarily made by issuers to underwriters in underwritten
offerings, and confirm the same if and when requested;
(ii) obtain opinions of counsel to the Company and the Trust and
updates thereof (which may be in the form of a reliance letter)
in form and substance reasonably satisfactory to the managing
underwriters (if any) and the Holders of a majority in principal
amount of the Registrable Securities being sold, addressed to
each selling Holder and the underwriters (if any) covering the
matters customarily covered in opinions requested in underwritten
offerings and such other matters as may be reasonably requested
by such underwriters (it being agreed that the matters to be
covered by such opinion may be subject to customary
qualifications and exceptions); (iii) obtain cold comfort
letters and updates thereof in form and substance reasonably
satisfactory to the managing underwriters from the independent
certified public accountants of the Company and the Trust (and,
if necessary, any other independent certified public accountants
of any subsidiary of the Company and the Trust or of any
business acquired by the Company and the Trust for which
financial statements and financial data are, or are required to
be, included in the Registration Statement), addressed to each of
the underwriters, such letters to be in customary form and
covering matters of the type customarily covered in cold
comfort letters in connection with underwritten offerings and
such other matters as reasonably requested by such underwriters
in accordance with Statement on Auditing Standards No. 72; and
(iv) if an underwriting agreement is entered into, ensure that
the same shall contain indemnification provisions and procedures
no less favorable than those set forth in Section 4 hereof (or
such other provisions and procedures acceptable to Holders of a
majority in aggregate principal amount of Registrable Securities
covered by such Registration Statement and the managing
underwriters or agents) with respect to all parties to be
indemnified pursuant to said Section (including, without
limitation, such underwriters and selling Holders). The above
shall be done at each closing under such underwriting agreement,
or as and to the extent required thereunder;
n. if (1) a Shelf Registration is filed pursuant to
Section 2(b) or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2(a) is required
to be delivered under the Securities Act by any Participating
Broker-Dealer that seeks to sell Exchange Securities during the
Applicable Period, make reasonably available for inspection by
any selling Holder of such Registrable Securities being sold, or
each such Participating Broker-Dealer, as the case may be, any
underwriter participating in any such disposition of Registrable
Securities, if any, and any attorney, accountant or other agent
retained by any such selling Holder or each such Participating
Broker-Dealer, as the case may be, or underwriter (collectively,
the Inspectors ), at the offices where normally kept, during
reasonable business hours, all financial and other records,
pertinent corporate documents and properties of the Trust, the
Company and its subsidiaries (collectively, the Records ) as
shall be reasonably necessary to enable them to exercise any
applicable due diligence responsibilities, and cause the
officers, directors and employees of the Trust, the Company and
its subsidiaries to supply all relevant information in each case
reasonably requested by any such Inspector in connection with
such Registration Statement; provided, however, that the
foregoing inspection and information gathering shall be
coordinated on behalf of the Holders by Merrill Lynch and on
behalf of the other parties, by one counsel designated as
described in Section 2(c) hereof. Records that the Company and
the Trust determine, in good faith, to be confidential and any
records that it notifies the Inspectors are confidential shall
not be disclosed by the Inspectors unless (i) the disclosure of
such Records is necessary to avoid or correct a material
misstatement or omission in such Registration Statement, (ii) the
release of such Records is ordered pursuant to a subpoena or
other order from a court of competent jurisdiction or is
necessary in connection with any action, suit or proceeding or
(iii) the information in such Records has been made generally
available to the public. Each selling Holder of such Registrable
Securities and each such Participating Broker-Dealer will be
required to agree in writing that information obtained by it as a
result of such inspections shall be deemed confidential and shall
not be used by it as the basis for any market transactions in the
securities of the Trust or the Company or any other purpose other
than its due diligence responsibilities unless and until such
information is made generally available to the public. Each
selling Holder of such Registrable Securities and each such
Participating Broker-Dealer will be required to further agree in
writing that it will, upon learning that disclosure of such
Records is sought in a court of competent jurisdiction, give
notice to the Company and allow the Company at its expense to
undertake appropriate action to prevent disclosure of the Records
deemed confidential;
o. comply with all applicable rules and regulations of the
SEC so long as any provision of this Agreement shall be
applicable and make generally available to its securityholders
earning statements satisfying the provisions of Section 11(a) of
the Securities Act and Rule 158 thereunder (or any similar rule
promulgated under the Securities Act) no later than 45 days after
the end of any 12-month period (or 90 days after the end of any
12-month period if such period is a fiscal year) (i) commencing
at the end of any fiscal quarter in which Registrable Securities
are sold to underwriters in a firm commitment or best efforts
underwritten offering and (ii) if not sold to underwriters in
such an offering, commencing on the first day of the first fiscal
quarter of the Company after the effective date of a Registration
Statement, which statements shall cover said 12-month periods;
p. upon consummation of an Exchange Offer or a Private
Exchange, if requested by a Trustee, obtain an opinion of counsel
to the Company addressed to the Trustee for the benefit of all
Holders of Registrable Securities participating in the Exchange
Offer or the Private Exchange, as the case may be, and which
includes an opinion that (i) the Company or the Trust, as the
case requires, has duly authorized, executed and delivered the
Exchange Securities and Private Exchange Securities and (ii) each
of the Exchange Securities or the Private Exchange Securities, as
the case may be, constitutes a legal, valid and binding
obligation of the Company or the Trust, as the case requires,
enforceable against the Company or the Trust, as the case
requires, in accordance with its respective terms (in each case,
with customary exceptions);
q. if an Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Registrable Securities by
Holders to the Company or the Trust, as applicable (or to such
other Person as directed by the Company or the Trust,
respectively), in exchange for the Exchange Securities or the
Private Exchange Securities, as the case may be, the Company or
the Trust, as applicable, shall mark, or cause to be marked, on
such Registrable Securities delivered by such Holders,that such
Registrable Securities are being cancelled in exchange for the
Exchange Securities or the Private Exchange Securities, as the
case may be; in no event shall such Registrable Securities be
marked as paid or otherwise satisfied;
r. cooperate with each seller of Registrable Securities
covered by any Registration Statement and each underwriter, if
any, participating in the disposition of such Registrable
Securities, and their respective counsel, in connection with any
filings required to be made with the NASD;
s. take all other reasonable steps necessary to effect the
registration of the Registrable Securities covered by a
Registration Statement contemplated hereby;
t. (A) in the case of the Exchange Offer Registration
Statement (i) include in the Exchange Offer Registration
Statement a section entitled Plan of Distribution, which
section shall be reasonably acceptable to the Initial Purchasers
or another representative of the Participating Broker-Dealers,
and which shall contain a summary statement of the positions
taken or policies made by the staff of the SEC with respect to
the potential underwriter status of any broker-dealer that
holds Registrable Securities acquired for its own account as a
result of market-making activities or other trading activities (a
Participating Broker-Dealer ) and that will be the beneficial
owner (as defined in Rule 13d-3 under the Exchange Act) of
Exchange Securities to be received by such broker-dealer in the
Exchange Offer, whether such positions or policies have been
publicly disseminated by the staff of the SEC or such positions
or policies, in the reasonable judgment of the Initial Purchasers
or such other representative, represent the prevailing views of
the staff of the SEC, including a statement that any such
broker-dealer who receives Exchange Securities for Registrable
Securities pursuant to the Exchange Offer may be deemed a
statutory underwriter and must deliver a prospectus meeting the
requirements of the Securities Act in connection with any resale
of such Exchange Securities, (ii) furnish to each Participating
Broker-Dealer that has delivered to the Company the notice
referred to in Section 3(e), without charge, as many copies of
each Prospectus included in the Exchange Offer Registration
Statement, including any preliminary prospectus, and any
amendment or supplement thereto, as such Participating Broker-
Dealer may reasonably request (each of the Company and the Trust
hereby consents to the use of the Prospectus forming part of the
Exchange Offer Registration Statement or any amendment or
supplement thereto by any Person subject to the prospectus
delivery requirements of the Securities Act, including all
Participating Broker-Dealers, in connection with the sale or
transfer of the Exchange Securities covered by the Prospectus or
any amendment or supplement thereto), (iii) keep the Exchange
Offer Registration Statement effective and amend and supplement
the Prospectus contained therein in order to permit such
Prospectus to be lawfully delivered by all Persons subject to the
prospectus delivery requirements of the Securities Act for such
period of time as such Persons must comply with such requirements
under the Securities Act and applicable rules and regulations in
order to resell the Exchange Securities; provided, however, that
such period shall not be required to exceed 90 days (or such
longer period if extended pursuant to the last sentence of
Section 3 hereof) (the Applicable Period ), and (iv) include in
the transmittal letter or similar documentation to be executed by
an exchange offeree in order to participate in the Exchange Offer
(x) the following provision:
If the exchange offeree is a broker-dealer holding
Registrable Securities acquired for its own
account as a result of market-making activities or
other trading activities, it will deliver a
prospectus meeting the requirements of the
Securities Act in connection with any resale of
Exchange Securities received in respect of such
Registrable Securities pursuant to the Exchange
Offer;
and (y) a statement to the effect that by a broker-dealer making
the acknowledgment described in clause (x) and delivering a
Prospectus in connection with the exchange of Registrable
Securities, the broker-dealer will not be deemed to admit that it
is an underwriter within the meaning of the Securities Act; and
B. in the case of any Exchange Offer Registration
Statement, to deliver to the Initial Purchasers or to another
representative of the Participating Broker-Dealers, if requested
by any such Initial Purchasers or such other representative of
the Participating Broker-Dealers, on behalf of the Participating
Broker-Dealers upon consummation of the Exchange Offer (i) an
opinion of counsel in form and substance reasonably satisfactory
to the Initial Purchasers or such other representative of the
Participating Broker-Dealers, covering the matters customarily
covered in opinions requested in connection with exchange offer
registration statements and such other matters as may be
reasonably requested (it being agreed that the matters to be
covered by such opinion may be subject to customary
qualifications and exceptions), (ii) an officers certificate
containing certifications substantially similar to those set
forth in Section 5(f) of the Purchase Agreement and such
additional certifications as are customarily delivered in a
public offering of debt securities and (iii) as well as upon the
effectiveness of the Exchange Offer Registration Statement, a
comfort letter, in each case, in customary form if permitted by
Statement on Auditing Standards No. 72.
The Company or the Trust may require each seller of
Registrable Securities as to which any registration is being effected
to furnish to the Company or the Trust, as applicable, such
information regarding such seller as may be required by the staff of
the SEC to be included in a Registration Statement. The Company or
the Trust may exclude from such registration the Registrable
Securities of any seller that unreasonably fails to furnish such
information within a reasonable time after receiving such request.
The Company shall have no obligation to register under the Securities
Act the Registrable Securities of a seller that so fails to furnish
such information.
In the case of (1) a Shelf Registration Statement or
(2) Participating Broker-Dealers that have notified the Company and
the Trust that they will be utilizing the Prospectus contained in the
Exchange Offer Registration Statement as provided in Section 3(t)
hereof, are seeking to sell Exchange Securities and are required to
deliver Prospectuses, each Holder agrees that, upon receipt of any
notice from the Company or the Trust of the happening of any event of
the kind described in Section 3(e)(ii), 3(e)(iii), 3(e)(v) or 3(e)(vi)
hereof, such Holder will forthwith discontinue disposition of
Registrable Securities pursuant to a Registration Statement until such
Holder s receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 3(i) hereof or until it is advised
in writing (the Advice ) by the Company and the Trust that the use of
the applicable Prospectus may be resumed, and, if so directed by the
Company and the Trust, such Holder will deliver to the Company or the
Trust (at the Company's or the Trust's expense, as the case requires)
all copies in such Holder's possession, other than permanent file
copies then in such Holder's possession, of the Prospectus covering
such Registrable Securities or Exchange Securities, as the case may
be, current at the time of receipt of such notice. If the Company or
the Trust shall give any such notice to suspend the disposition of
Registrable Securities or Exchange Securities, as the case may be,
pursuant to a Registration Statement, the Company and the Trust shall
use their best efforts to file and have declared effective (if an
amendment) as soon as practicable an amendment or supplement to the
Registration Statement and shall extend the period during which such
Registration Statement shall be maintained effective pursuant to this
Agreement by the number of days in the period from and including the
date of the giving of such notice to and including the date when the
Company and the Trust shall have made available to the Holders
(x) copies of the supplemented or amended Prospectus necessary to
resume such dispositions or (y) the Advice.
4. Indemnification and Contribution.
a. In connection with any Registration Statement, the
Company and the Trust shall, jointly and severally, indemnify and
hold harmless each Initial Purchaser, each Holder, each
underwriter who participates in an offering of the Registrable
Securities, each Participating Broker-Dealer, each Person, if
any, who controls any of such parties within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange
Act and each of their respective directors, officers, employees
and agents, as follows:
(i) from and against any and all loss, liability,
claim, damage and expense whatsoever, joint or several, as
incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in any
Registration Statement (or any amendment thereto), covering
Registrable Securities or Exchange Securities, including all
documents incorporated therein by reference, or the omission
or alleged omission therefrom of a material fact required to
be stated therein or necessary to make the statements
therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact
included in any Prospectus (or any amendment or supplement
thereto) or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading;
(ii) from and against any and all loss, liability,
claim, damage and expense whatsoever, joint or several, as
incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or
proceeding by any court or governmental agency or body,
commenced or threatened, or of any claim whatsoever based
upon any such untrue statement or omission, or any such
alleged untrue statement or omission, provided that (subject
to Section 4(d) hereof) such settlement is effected with the
prior written consent of the Company; and
(iii) from and against any and all expenses
whatsoever, as incurred (including reasonable fees and
disbursements of counsel chosen by such Holder, such
Participating Broker-Dealer, or any underwriter (except to
the extent otherwise expressly provided in Section 4(c)
hereof)), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or
proceeding by any court or governmental agency or body,
commenced or threatened, or any claim whatsoever based upon
any such untrue statement or omission, or any such alleged
untrue statement or omission, to the extent that any such
expense is not paid under subparagraph (i) or (ii) of this
Section 4(a);
provided, however, that this indemnity does not apply to any loss,
liability, claim, damage or expense to the extent arising out of an
untrue statement or omission or alleged untrue statement or omission
made in reliance upon and in conformity with written information
furnished in writing to the Company or the Trust by such Holder, such
Participating Broker-Dealer or any underwriter with respect to such
Holder, Participating Broker-Dealer or any underwriter, as the case
may be, expressly for use in the Registration Statement (or any
amendment thereto) or any Prospectus (or any amendment or supplement
thereto).
b. Each Holder agrees, severally and not jointly, to
indemnify and hold harmless the Company, the Trust, each trustee of
the Trust, any underwriter and the other selling Holders and each of
their respective directors, officers (including each officer of the
Company and the Trust who signed the Registration Statement),
employees and agents and each Person, if any, who controls the
Company, the Trust, any underwriter or any other selling Holder within
the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, from and against any and all loss, liability, claim,
damage and expense whatsoever described in the indemnity contained in
Section 4(a) hereof, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions,
made in the Registration Statement (or any amendment thereto) or any
Prospectus (or any amendment or supplement thereto) in reliance upon
and in conformity with written information furnished to the Company or
the Trust by such selling Holder with respect to such Holder expressly
for use in the Registration Statement (or any amendment thereto), or
any such Prospectus (or any amendment or supplement thereto);
provided, however, that, in the case of Shelf Registration Statement,
no such Holder shall be liable for any claims hereunder in excess of
the amount of net proceeds received by such Holder from the sale of
Registrable Securities pursuant to such Shelf Registration Statement.
c. Promptly after receipt by an indemnified party under this
Section 4 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under Section 4(a) or 4(b) above,
notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise
than under Section 4(a) or 4(b) above. In case any such action is
brought against any indemnified party and it notifies the indemnifying
party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish,
jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and after
notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will
not be liable to such indemnified party under this Section 4 for any
legal or other expenses subsequently incurred by such indemnified
party in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement
of any pending or threatened action in respect of which an indemnified
party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement (i)
includes an unconditional release of such indemnified party from all
liability on any claims that are the subject matter of such action and
(ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified
party.
d. If at any time an indemnified party shall have validly
requested an indemnifying party to reimburse the indemnified party for
fees and expenses of counsel, such indemnifying party agrees that it
shall be liable for any settlement of the nature contemplated by
Section 4(a)(ii) effected without its written consent if (i) such
settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying
party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii)
such indemnifying party shall not have reimbursed such indemnified
party in accordance with such request prior to the date of such
settlement.
e. In order to provide for just and equitable contribution in
circumstances under which any of the indemnity provisions set forth in
this Section 4 is for any reason held to be unavailable to the
indemnified parties although applicable in accordance with its terms,
the Company, the Trust, and the Holders shall contribute to the
aggregate losses, liabilities, claims, damages and expenses of the
nature contemplated by such indemnity agreement incurred by the
Company, the Trust, and the Holders, as incurred; provided, that no
Person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from
any Person that was not guilty of such fraudulent misrepresentation.
As between the Company, the Trust, and the Holders, such parties shall
contribute to such aggregate losses, liabilities, claims, damages
and-expenses of the nature contemplated by such indemnity agreement in
such proportion as shall be appropriate to reflect the relative fault
of the Company and Trust, on the one hand, and the Holders, on the
other hand, with respect to the statements or omissions which resulted
in such loss, liability, claim, damage or expense, or action in
respect thereof, as well as any other relevant equitable
considerations. The relative fault of the Company and the Trust, on
the one hand, and of the Holders, on the other hand, shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by
the Company or the Trust, on the one hand, or by or on behalf of the
Holders, on the other, and the parties relative intent, knowledge,
access to information and opportunity to correct or prevent such
statement or omission. The Company, the Trust and the Holders of the
Registrable Securities agree that it would not be just and equitable
if contribution pursuant to this Section 4 were to be determined by
pro rata allocation or by any other method of allocation that does not
take into account the relevant equitable considerations. For purposes
of this Section 4, each affiliate of a Holder, and each director,
officer, employee, agent and Person, if any, that controls a Holder or
such affiliate within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act shall have the same rights to
contribution as such Holder, and each director of each of the Company
or the Trust, each officer of each of the Company or the Trust who
signed the Registration Statement, and each Person, if any, that
controls each of the Company and the Trust within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act
shall have the same rights to contribution as each of the Company or
the Trust.
5. Participation in Underwritten Registrations. No Holder may
participate in any underwritten registration hereunder unless such
Holder (a) agrees to sell such Holder's Registrable Securities on the
basis provided in any underwriting arrangements approved by the
Persons entitled hereunder to approve such arrangements and
(b) completes and executes all reasonable questionnaires, powers of
attorney, indemnities, underwriting agreements, lock-up letters and
other documents reasonably required under the terms of such
underwriting arrangements.
6. Selection of Underwriters. The Holders of Registrable
Securities covered by the Shelf Registration Statement that desire to
do so may sell the securities covered by such Shelf Registration in an
underwritten offering. In any such underwritten offering, the
underwriter or underwriters and manager or managers that will
administer the offering will be selected by the Holders of a majority
in aggregate principal amount of the Registrable Securities included
in such offering; provided, however, that such underwriters and
managers must be reasonably satisfactory to the Company and the Trust.
7. Miscellaneous.
a. Rule 144 and Rule 144A. For so long as the Company or the
Trust is subject to the reporting requirements of Section 13 or 15 of
the Exchange Act and any Registrable Securities remain outstanding,
the Company and the Trust, as the case may be, will use their best
efforts to file the reports required to be filed by either of them
under the Securities Act and Section 13(a) or 15(d) of the Exchange
Act and the rules and regulations adopted by the SEC thereunder;
provided, that if either of them ceases to be so required to file such
reports, it will, upon the request of any Holder of Registrable
Securities (a) make publicly available such information as is
necessary to permit sales of such Holder s securities pursuant to Rule
144 under the Securities Act, (b) deliver such information to a
prospective purchaser as is necessary to permit sales of such Holder s
securities pursuant to Rule 144A under the Securities Act and take
such further action as any Holder of Registrable Securities may
reasonably request, and (c) take such further action that is
reasonable in the circumstances, in each case, to the extent required
from time to time, to enable such Holder to sell its Registrable
Securities without registration under the Securities Act within the
limitation of the exemptions provided by (i) Rule 144 under the
Securities Act, as such rule may be amended from time to time,
(ii) Rule 144A under the Securities Act, as such rule may be amended
from time to time, or (iii) any similar rules or regulations hereafter
adopted by the SEC. Upon the request of any Holder of Registrable
Securities, the Company and the Trust will deliver to such Holder a
written statement as to whether either of them has complied with such
requirements.
b. No Inconsistent Agreements. Neither the Company nor the
Trust has entered into, nor will the Company or the Trust on or after
the date of this Agreement enter into, any agreement that is
inconsistent with the rights granted to the Holders of Registrable
Securities in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the Holders hereunder do not
in any way conflict with and are not inconsistent with the rights
granted to the holders of the other issued and outstanding securities
of the Company or the Trust under any such agreements.
c. Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended,
modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, unless the Company and the
Trust have obtained the written consent of Holders of at least a
majority in aggregate principal amount of the outstanding Registrable
Securities affected by such amendment, modification, supplement,
waiver or departure; provided, that no amendment, modification or
supplement or waiver or consent to the departure with respect to the
provisions of Section 4 hereof shall be effective as against any
Holder of Registrable Securities unless consented to in writing by
such Holder of Registrable Securities. Notwithstanding the foregoing
sentence, (i) this Agreement may be amended, without the consent of
any Holder of Registrable Securities, by written agreement signed by
the Company, the Trust and Merrill Lynch, to cure any ambiguity,
correct or supplement any provision of this Agreement that may be
inconsistent with any other provision of this Agreement or to make any
other provisions with respect to matters or questions arising under
this Agreement that shall not be inconsistent with other provisions of
this Agreement, (ii) this Agreement may be amended, modified or
supplemented, and waivers and consents to departures from the
provisions hereof may be given, by written agreement signed by the
Company, the Trust and Merrill Lynch to the extent that any such
amendment, modification, supplement, waiver or consent is, in their
reasonable judgment, necessary or appropriate to comply with
applicable law (including any interpretation of the staff of the SEC)
or any change therein and (iii) to the extent any provision of this
Agreement relates to the Initial Purchasers, such provision may be
amended, modified or supplemented, and waivers or consents to
departures from such provisions may be given, by written agreement
signed by Merrill Lynch, the Company and the Trust.
d. Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery,
registered first-class mail, telex, telecopier, or any courier
guaranteeing overnight delivery (i) if to a Holder, at the most
current address given by such Holder to the Company or the Trust by
means of a notice given in accordance with the provisions of this
Section 7(d), which address initially is, with respect to the Initial
Purchasers, the address set forth in the Purchase Agreement; and
(ii) if to the Company or the Trust, initially at the Company s
address set forth in the Purchase Agreement and thereafter at such
other address, notice of which is given in accordance with the
provisions of this Section 7(d).
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered;
five Business Days after being deposited in the mail, postage prepaid,
if mailed; when answered back, if telexed; when receipt is
acknowledged, if telecopied; and on the next Business Day, if timely
delivered to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands, or other communications
shall be concurrently delivered by the Person giving the same to the
Trustee, at the address specified in the Indenture.
e. Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees
of the Initial Purchasers, including, without limitation and without
the need for an express assignment, subsequent Holders; provided,
however, that nothing herein shall be deemed to permit any assignment,
transfer or other disposition of Registrable Securities in violation
of the terms of the Purchase Agreement or the Indenture. If any
transferee of any Holder shall acquire Registrable Securities, in any
manner, whether by operation of law or otherwise, such Registrable
Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Securities, such
Person shall be conclusively deemed to have agreed to be bound by and
to perform all of the terms and provisions of this Agreement and such
Person shall be entitled to receive the benefits hereof.
f. Third Party Beneficiary. Each Holder shall be a third party
beneficiary of the agreements made hereunder between the Company and
the Trust, on the one hand, and the Initial Purchasers, on the other
hand, and the Initial Purchasers shall have the right to enforce such
agreements directly to the extent it deems such enforcement necessary
or advisable to protect its rights or the rights of Holders hereunder.
g. Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and
all of which taken together shall constitute one and the same
agreement.
h. Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect
the meaning hereof.
i. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
WITHOUT GIVING EFFECT TO CONFLICT OF LAW PRINCIPLES.
j. Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable, the validity,
legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be
affected or impaired thereby.
k. Securities Held by the Company, the Trust or its Affiliates.
Whenever the consent or approval of Holders of a specified percentage
of Registrable Securities is required hereunder, Registrable
Securities held by the Company, the Trust or its affiliates (as such
term is defined in Rule 405 under the Securities Act) shall not be
counted in determining whether such consent or approval was given by
the Holders of such required percentage.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
FIRST OF AMERICA BANK CORPORATION
By: /s/ Samuel G. Stone
Name:
Title:
FIRST OF AMERICA CAPITAL TRUST I
By: /s/ John H. Miner
Name:
Administrative Trustee
Confirmed and accepted as of
the date first above written:
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
GOLDMAN, SACHS & CO.
LEHMAN BROTHERS INC.
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Lee Whitley
Authorized Signatory
On its behalf and on behalf of
the other Initial Purchasers