Exhibit 4.2
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AMENDED AND RESTATED TRUST AGREEMENT
among
WESBANCO, INC.,
as Depositor
THE BANK OF NEW YORK,
as Property Trustee
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
and
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
as Administrative Trustees
________________
Dated as of June 19, 2003
________________
WESBANCO CAPITAL TRUST II
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TABLE OF CONTENTS
Page
ARTICLE I. DEFINED TERMS.......................................1
SECTION 1.1. Definitions....................................1
ARTICLE II. THE TRUST..........................................10
SECTION 2.1. Name..........................................10
SECTION 2.2. Office of the Delaware Trustee;
Principal Place of Business...................10
SECTION 2.3. Initial Contribution of Trust Property;
Fees, Costs and Expenses......................11
SECTION 2.4. Purposes of Trust.............................11
SECTION 2.5. Authorization to Enter into Certain
Transactions..................................11
SECTION 2.6. Assets of Trust...............................14
SECTION 2.7. Title to Trust Property.......................14
ARTICLE III. PAYMENT ACCOUNT; PAYING AGENTS....................14
SECTION 3.1. Payment Account...............................14
SECTION 3.2. Appointment of Paying Agents..................15
ARTICLE IV. DISTRIBUTIONS; REDEMPTION..........................15
SECTION 4.1. Distributions.................................15
SECTION 4.2. Redemption....................................17
SECTION 4.3. Subordination of Common Securities............19
SECTION 4.4. Payment Procedures............................20
SECTION 4.5. Withholding Tax...............................20
SECTION 4.6. Tax Returns and Other Reports.................21
SECTION 4.7. Payment of Taxes, Duties, Etc. of the
Trust.........................................21
SECTION 4.8. Payments under Indenture or Pursuant to
Direct Actions................................21
SECTION 4.9. Exchanges.....................................21
SECTION 4.10. Calculation Agent.............................22
SECTION 4.11. Certain Accounting Matters....................23
ARTICLE V. SECURITIES.........................................23
SECTION 5.1. Initial Ownership.............................23
SECTION 5.2. Authorized Trust Securities...................23
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SECTION 5.3. Issuance of the Common Securities;
Subscription and Purchase of Notes............23
SECTION 5.4. The Securities Certificates...................24
SECTION 5.5. Rights of Holders.............................25
SECTION 5.6. Book-Entry Preferred Securities...............25
SECTION 5.7. Registration of Transfer and Exchange
of Preferred Securities Certificates..........27
SECTION 5.8. Mutilated, Destroyed, Lost or Stolen
Securities Certificates.......................28
SECTION 5.9. Persons Deemed Holders........................29
SECTION 5.10. Cancellation..................................29
SECTION 5.11. Ownership of Common Securities by
Depositor.....................................29
SECTION 5.12. Restricted Legends............................30
SECTION 5.13. Form of Certificate of Authentication.........33
ARTICLE VI. MEETINGS; VOTING; ACTS OF HOLDERS..................33
SECTION 6.1. Notice of Meetings............................33
SECTION 6.2. Meetings of Holders of the Preferred
Securities....................................33
SECTION 6.3. Voting Rights.................................34
SECTION 6.4. Proxies, Etc..................................34
SECTION 6.5. Holder Action by Written Consent..............34
SECTION 6.6. Record Date for Voting and Other
Purposes......................................34
SECTION 6.7. Acts of Holders...............................34
SECTION 6.8. Inspection of Records.........................35
SECTION 6.9. Limitations on Voting Rights..................36
SECTION 6.10. Acceleration of Maturity; Rescission of
Annulment; Waivers of Past Defaults...........36
ARTICLE VII. REPRESENTATIONS AND WARRANTIES.....................39
SECTION 7.1. Representations and Warranties of the
Property Trustee and the Delaware
Trustee.......................................39
SECTION 7.2. Representations and Warranties of
Depositor.....................................40
ARTICLE VIII. THE TRUSTEES.......................................41
SECTION 8.1. Number of Trustees............................41
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SECTION 8.2. Property Trustee Required.....................41
SECTION 8.3. Delaware Trustee Required.....................41
SECTION 8.4. Appointment of Administrative Trustees........42
SECTION 8.5. Duties and Responsibilities of the
Trustees......................................42
SECTION 8.6. Notices of Defaults and Extensions............44
SECTION 8.7. Certain Rights of Property Trustee............44
SECTION 8.8. Delegation of Power...........................47
SECTION 8.9. May Hold Securities...........................47
SECTION 8.10. Compensation; Reimbursement; Indemnity........47
SECTION 8.11. Resignation and Removal; Appointment of
Successor.....................................48
SECTION 8.12. Acceptance of Appointment by Successor........49
SECTION 8.13. Merger, Conversion, Consolidation or
Succession to Business........................50
SECTION 8.14. Not Responsible for Recitals or
Issuance of Securities........................50
SECTION 8.15. Property Trustee May File Proofs of
Claim.........................................50
SECTION 8.16. Reports to and from the Property
Trustee.......................................51
ARTICLE IX. TERMINATION, LIQUIDATION AND MERGER................51
SECTION 9.1. Dissolution Upon Expiration Date..............51
SECTION 9.2. Early Termination.............................52
SECTION 9.3. Termination...................................52
SECTION 9.4. Liquidation...................................52
SECTION 9.5. Mergers, Consolidations, Amalgamations
or Replacements of Trust......................54
ARTICLE X. MISCELLANEOUS PROVISIONS...........................55
SECTION 10.1. Limitation of Rights of Holders...............55
SECTION 10.2. Agreed Tax Treatment of Trust and Trust
Securities....................................55
SECTION 10.3. Amendment.....................................55
SECTION 10.4. Separability..................................57
SECTION 10.5. Governing Law.................................57
SECTION 10.6. Successors....................................57
SECTION 10.7. Headings......................................57
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SECTION 10.8. Reports, Notices and Demands..................57
SECTION 10.9. Agreement Not to Petition.....................58
SECTION 10.10. Counterparts..................................58
Exhibit A Certificate of Trust of WesBanco Capital Trust II
Exhibit B Form of Common Securities Certificate
Exhibit C Form of Preferred Securities Certificate
Exhibit D Junior Subordinated Indenture
Exhibit E Form of Transferor Certificate to be Executed for QIBs
Exhibit F Form of Transferee Certificate to be Executed by Transferees
other than QIBs
Schedule A Calculation of LIBOR
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AMENDED AND RESTATED TRUST AGREEMENT, dated as of June 19,
2003, among (i) WesBanco, Inc., a West Virginia corporation
(including any successors or permitted assigns, the
"Depositor"), (ii) The Bank of New York, a New York banking
corporation, as property trustee (in such capacity, the
"Property Trustee"), (iii) The Bank of New York (Delaware), a
Delaware banking corporation, as Delaware trustee (in such
capacity, the "Delaware Trustee"), (iv) Robert H. Young, an
individual, Paul M. Limbert, an individual and Brent E.
Richmond, an individual, each of whose address is c/o WesBanco,
Inc., One Bank Plaza, Wheeling, WV 26003, as administrative
trustees (in such capacities, each an "Administrative Trustee"
and, collectively, the "Administrative Trustees" and, together
with the Property Trustee and the Delaware Trustee, the
"Trustees") and (v) the several Holders, as hereinafter defined.
WITNESSETH
WHEREAS, the Depositor, the Property Trustee and the Delaware
Trustee have heretofore created a Delaware statutory trust
pursuant to the Delaware Statutory Trust Act by entering into a
Trust Agreement, dated as of June 11, 2003 (the "Original Trust
Agreement"), and by executing and filing with the Secretary of
State of the State of Delaware the Certificate of Trust,
substantially in the form attached as Exhibit A; and
WHEREAS, the Depositor and the Trustees desire to amend and
restate the Original Trust Agreement in its entirety as set
forth herein to provide for, among other things, (i) the
issuance of the Common Securities by the Trust to the Depositor,
(ii) the issuance and sale of the Preferred Securities by the
Trust pursuant to the Purchase Agreement and (iii) the
acquisition by the Trust from the Depositor of all of the right,
title and interest in and to the Notes;
NOW, THEREFORE, in consideration of the agreements and
obligations set forth herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, each party, for the benefit of the other parties
and for the benefit of the Holders, hereby amends and restates
the Original Trust Agreement in its entirety and agrees as
follows:
ARTICLE I.
DEFINED TERMS
SECTION 1.1. Definitions.
For all purposes of this Trust Agreement, except as
otherwise expressly provided or unless the context otherwise
requires:
(a) the terms defined in this Article I have the
meanings assigned to them in this Article I;
(b) the words "include", "includes" and "including"
shall be deemed to be followed by the phrase "without
limitation";
(c) all accounting terms used but not defined herein
have the meanings assigned to them in accordance with
United States generally accepted accounting principles;
(d) unless the context otherwise requires, any
reference to an "Article", a "Section", a "Schedule" or an
"Exhibit" refers to an Article, a Section, a Schedule or an
Exhibit, as the case may be, of or to this Trust Agreement;
(e) the words "hereby", "herein", "hereof" and
"hereunder" and other words of similar import refer to this
Trust Agreement as a whole and not to any particular
Article, Section or other subdivision;
(f) a reference to the singular includes the plural
and vice versa; and
(g) the masculine, feminine or neuter genders used
herein shall include the masculine, feminine and neuter
genders.
"Act" has the meaning specified in Section 6.7.
"Additional Interest" has the meaning specified in Section
1.1 of the Indenture.
"Additional Interest Amount" means, with respect to Trust
Securities of a given Liquidation Amount and/or a given period,
the amount of Additional Interest paid by the Depositor on a
Like Amount of Notes for such period.
"Additional Taxes" has the meaning specified in Section 1.1
of the Indenture.
"Additional Tax Sums" has the meaning specified in
Section 10.5 of the Indenture.
"Administrative Trustee" means each of the Persons
identified as an "Administrative Trustee" in the preamble to
this Trust Agreement, solely in each such Person's capacity as
Administrative Trustee of the Trust and not in such Person's
individual capacity, or any successor Administrative Trustee
appointed as herein provided.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person.
For the purposes of this definition, "control" when used with
respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract
or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Applicable Depositary Procedures" means, with respect to
any transfer or transaction involving a Book-Entry Preferred
Security, the rules and procedures of the Depositary for such
Book-Entry Preferred Security, in each case to the extent
applicable to such transaction and as in effect from time to
time.
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"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having
jurisdiction in the premises (i) judging such Person a
bankrupt or insolvent, (ii) approving as properly filed a
petition seeking reorganization, arrangement, adjudication
or composition of or in respect of such Person under any
applicable Federal or state bankruptcy, insolvency,
reorganization or other similar law, (iii) appointing a
custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of such Person or of
any substantial part of its property or (iv) ordering the
winding up or liquidation of its affairs, and the
continuance of any such decree or order unstayed and in
effect for a period of sixty (60) consecutive days; or
(b) the institution by such Person of proceedings to be
adjudicated a bankrupt or insolvent, or the consent by it
to the institution of bankruptcy or insolvency proceedings
against it, or the filing by it of a petition or answer or
consent seeking reorganization or relief under any
applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law, or the consent by it
to the filing of any such petition or to the appointment of
a custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official of such Person or of any
substantial part of its property, or the making by it of an
assignment for the benefit of creditors, or the admission
by it in writing of its inability to pay its debts
generally as they become due and its willingness to be
adjudicated a bankrupt or insolvent, or the taking of
corporate action by such Person in furtherance of any such
action.
"Bankruptcy Laws" means all Federal and state bankruptcy,
insolvency, reorganization and other similar laws, including the
United States Bankruptcy Code.
"Book-Entry Preferred Security" means a Preferred Security,
the ownership and transfers of which shall be made through book
entries by a Depositary.
"Business Day" means a day other than (a) a Saturday or
Sunday, (b) a day on which banking institutions in the City of
New York are authorized or required by law or executive order to
remain closed or (c) a day on which the Corporate Trust Office
is closed for business.
"Calculation Agent" has the meaning specified in Section
4.10.
"Capital Disqualification Event" has the meaning specified
in Section 1.1 of the Indenture.
"Closing Date" has the meaning specified in the Purchase
Agreement.
"Code" means the United States Internal Revenue Code of
1986, as amended.
"Commission" means the Securities and Exchange Commission,
as from time to time constituted, created under the Exchange Act
or, if at any time after the execution of this Trust Agreement
such Commission is not existing and performing the duties
assigned to it, then the body performing such duties at such
time.
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"Common Securities Certificate" means a certificate
evidencing ownership of Common Securities, substantially in the
form attached as Exhibit B.
"Common Security" means an undivided beneficial interest in
the assets of the Trust, having a Liquidation Amount of $1,000
and having the rights provided therefor in this Trust Agreement.
"Corporate Trust Office" means the principal office of the
Property Trustee at which any particular time its corporate
trust business shall be administered, which office at the date
of this Trust Agreement is located at 101 Barclay Street, New
York, New York 10286, Attention: Corporate Trust
Administration.
"Definitive Preferred Securities Certificates" means
Preferred Securities issued in certificated, fully registered
form that are not Global Preferred Securities.
"Delaware Statutory Trust Act" means Chapter 38 of Title 12
of the Delaware Code, 12 Del. Code 3801 et seq., or any
successor statute thereto, in each case as amended from time to
time.
"Delaware Trustee" means the Person identified as the
"Delaware Trustee" in the preamble to this Trust Agreement,
solely in its capacity as Delaware Trustee of the Trust and not
in its individual capacity, or its successor in interest in such
capacity, or any successor Delaware Trustee appointed as herein
provided.
"Depositary" means an organization registered as a clearing
agency under the Exchange Act that is designated as Depositary
by the Depositor or any successor thereto. DTC will be the
initial Depositary.
"Depositary Participant" means a broker, dealer, bank,
other financial institution or other Person for whom from time
to time the Depositary effects book-entry transfers and pledges
of securities deposited with the Depositary.
"Depositor" has the meaning specified in the preamble to
this Trust Agreement and any successors and permitted assigns.
"Depositor Affiliate" has the meaning specified in Section 4.9.
"Distribution Date" has the meaning specified in
Section 4.1(a)(i).
"Distributions" means amounts payable in respect of the
Trust Securities as provided in Section 4.1.
"DTC" means The Depository Trust Company or any successor
thereto.
"Early Termination Event" has the meaning specified in
Section 9.2.
"Event of Default" means any one of the following events
(whatever the reason for such event and whether it shall be
voluntary or involuntary or be effected by operation of law or
4
pursuant to any judgment, decree or order of any court or any
order, rule or regulation of any administrative or governmental
body):
(a) the occurrence of a Note Event of Default; or
(b) default by the Trust in the payment of any Distribution
when it becomes due and payable, and continuation of such
default for a period of thirty (30) days; or
(c) default by the Trust in the payment of any Redemption
Price of any Trust Security when it becomes due and
payable; or
(d) default in the performance, or breach, in any material
respect of any covenant or warranty of the Trustees in this
Trust Agreement (other than those specified in clause (b)
or (c) above) and continuation of such default or breach
for a period of thirty (30) days after there has been
given, by registered or certified mail, to the Trustees and
to the Depositor by the Holders of at least twenty five
percent (25%) in aggregate Liquidation Amount of the
Outstanding Preferred Securities a written notice
specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of
Default" hereunder; or
(e) the occurrence of a Bankruptcy Event with respect to the
Property Trustee if a successor Property Trustee has not
been appointed within ninety (90) days thereof.
"Exchange Act" means the Securities Exchange Act of 1934,
and any successor statute thereto, in each case as amended from
time to time.
"Expiration Date" has the meaning specified in Section 9.1.
"Extension Period" has the meaning specified in Section 4.1(a)(ii).
"Federal Reserve" means the Board of Governors of the
Federal Reserve System, the staff thereof, or a Federal Reserve
Bank, acting through delegated authority, in each case under the
rules, regulations and policies of the Federal Reserve System,
or if at any time after the executions of this Trust Agreement
any such entity is not existing and performing the duties now
assigned to it, any successor body performing similar duties or
functions.
"Fiscal Year" shall be the fiscal year of the Trust, which
shall be the calendar year, or such other period as is required
by the Code.
"Global Preferred Security" means a Preferred Securities
Certificate evidencing ownership of Book-Entry Preferred
Securities.
"Guarantee Agreement" means the Guarantee Agreement
executed and delivered by the Depositor and The Bank of New
York, as guarantee trustee, contemporaneously with the execution
and delivery of this Trust Agreement for the benefit of the
holders of the Preferred Securities, as amended from time to
time.
5
"Holder" means a Person in whose name a Trust Security or
Trust Securities are registered in the Securities Register; any
such Person shall be a beneficial owner within the meaning of
the Delaware Statutory Trust Act.
"Indemnified Person" has the meaning specified in Section 8.10(c).
"Indenture" means the Junior Subordinated Indenture
executed and delivered by the Depositor and the Note Trustee
contemporaneously with the execution and delivery of this Trust
Agreement, for the benefit of the holders of the Notes, a copy
of which is attached hereto as Exhibit D, as amended or
supplemented from time to time.
"Indenture Redemption Price" has the meaning specified in
Section 4.2(c).
"Interest Payment Date" has the meaning specified in
Section 1.1 of the Indenture.
"Investment Company Act" means the Investment Company Act
of 1940, or any successor statute thereto, in each case as
amended from time to time.
"Investment Company Event" has the meaning specified in
Section 1.1 of the Indenture.
"LIBOR" has the meaning specified in Schedule A.
"LIBOR Business Day" has the meaning specified in Schedule A.
"LIBOR Determination Date" has the meaning specified in
Schedule A.
"Lien" means any lien, pledge, charge, encumbrance,
mortgage, deed of trust, adverse ownership interest,
hypothecation, assignment, security interest or preference,
priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of any
Trust Securities, Trust Securities having a Liquidation Amount
equal to the principal amount of Notes to be contemporaneously
redeemed or paid at maturity in accordance with the Indenture,
the proceeds of which will be used to pay the Redemption Price
of such Trust Securities, (b) with respect to a distribution of
Notes to Holders of Trust Securities in connection with a
dissolution of the Trust, Notes having a principal amount equal
to the Liquidation Amount of the Trust Securities of the Holder
to whom such Notes are distributed and (c) with respect to any
distribution of Additional Interest Amounts to Holders of Trust
Securities, Notes having a principal amount equal to the
Liquidation Amount of the Trust Securities in respect of which
such distribution is made.
"Liquidation Amount" means the stated amount of $1,000 per
Trust Security.
"Liquidation Date" means the date on which assets are to be
distributed to Holders in accordance with Section 9.4(a)
hereunder following dissolution of the Trust.
"Liquidation Distribution" has the meaning specified in
Section 9.4(d).
6
"Majority in Liquidation Amount" means Common or Preferred
Securities, as the case may be, representing more than fifty
percent (50%) of the aggregate Liquidation Amount of all (or a
specified group of) then Outstanding Common or Preferred
Securities, as the case may be.
"Note Event of Default" means any "Event of Default"
specified in Section 5.1 of the Indenture.
"Note Redemption Date" means, with respect to any Notes to
be redeemed under the Indenture, the date fixed for redemption
of such Notes under the Indenture.
"Note Trustee" means the Person identified as the "Trustee"
in the Indenture, solely in its capacity as Trustee pursuant to
the Indenture and not in its individual capacity, or its
successor in interest in such capacity, or any successor Trustee
appointed as provided in the Indenture.
"Notes" means the Depositor's Floating Rate Junior
Subordinated Notes issued pursuant to the Indenture.
"Office of Thrift Supervision" means the Office of Thrift
Supervision, as from time to time constituted or, if at any time
after the execution of this Trust Agreement such Office is not
existing and performing the duties now assigned to it, then the
body performing such duties at such time.
"Officers' Certificate" means a certificate signed by the
Chief Executive Officer, the President or an Executive Vice
President, and by the Chief Financial Officer, Treasurer or an
Assistant Treasurer, of the Depositor, and delivered to the
Trustees. Any Officers' Certificate delivered with respect to
compliance with a condition or covenant provided for in this
Trust Agreement (other than the certificate provided pursuant to
Section 8.16) shall include:
(a) a statement by each officer signing the Officers'
Certificate that such officer has read the covenant or
condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by such officer in
rendering the Officers' Certificate;
(c) a statement that such officer has made such examination
or investigation as, in such officer's opinion, is
necessary to enable such officer to express an informed
opinion as to whether or not such covenant or condition has
been complied with; and
(d) a statement as to whether, in the opinion of such
officer, such condition or covenant has been complied with.
"Operative Documents" means the Purchase Agreement, the
Indenture, the Trust Agreement, the Guarantee Agreement, the
Notes and the Trust Securities.
"Opinion of Counsel" means a written opinion of counsel,
who may be counsel for, or an employee of, the Depositor or any
Affiliate of the Depositor.
7
"Original Issue Date" means the date of original issuance
of the Trust Securities.
"Original Trust Agreement" has the meaning specified in the
recitals to this Trust Agreement.
"Outstanding", when used with respect to any Trust
Securities, means, as of the date of determination, all Trust
Securities theretofore executed and delivered under this Trust
Agreement, except:
(a) Trust Securities theretofore canceled by the Property
Trustee or delivered to the Property Trustee for
cancellation;
(b) Trust Securities for which payment or redemption money
in the necessary amount has been theretofore deposited with
the Property Trustee or any Paying Agent in trust for the
Holders of such Trust Securities; provided, that if such
Trust Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Trust
Agreement; and
(c) Trust Securities that have been paid or in exchange for
or in lieu of which other Trust Securities have been
executed and delivered pursuant to the provisions of this
Trust Agreement, unless proof satisfactory to the Property
Trustee is presented that any such Trust Securities are
held by Holders in whose hands such Trust Securities are
valid, legal and binding obligations of the Trust;
provided, that in determining whether the Holders of the
requisite Liquidation Amount of the Outstanding Preferred
Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Preferred
Securities owned by the Depositor, any Trustee or any Affiliate
of the Depositor or of any Trustee shall be disregarded and
deemed not to be Outstanding, except that (i) in determining
whether any Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or
waiver, only Preferred Securities that such Trustee knows to be
so owned shall be so disregarded and (ii) the foregoing shall
not apply at any time when all of the Outstanding Preferred
Securities are owned by the Depositor, one or more of the
Trustees and/or any such Affiliate. Preferred Securities so
owned that have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of
the Administrative Trustees the pledgee's right so to act with
respect to such Preferred Securities and that the pledgee is not
the Depositor, any Trustee or any Affiliate of the Depositor or
of any Trustee.
"Owner" means each Person who is the beneficial owner of
Book-Entry Preferred Securities as reflected in the records of
the Depositary or, if a Depositary Participant is not the
beneficial owner, then the beneficial owner as reflected in the
records of the Depositary Participant.
"Paying Agent" means any Person authorized by the
Administrative Trustees to pay Distributions or other amounts in
respect of any Trust Securities on behalf of the Trust.
"Payment Account" means a segregated non-interest-bearing
corporate trust account maintained by the Property Trustee for
the benefit of the Holders in which all amounts paid in
8
respect of the Notes will be held and from which the Property Trustee,
through the Paying Agent, shall make payments to the Holders in
accordance with Sections 3.1, 4.1 and 4.2.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association,
joint stock company, company, limited liability company, trust,
unincorporated association or government, or any agency or
political subdivision thereof, or any other entity of whatever
nature.
"Preferred Security" means an undivided beneficial interest
in the assets of the Trust, having a Liquidation Amount of
$1,000 and having the rights provided therefor in this Trust
Agreement.
"Preferred Securities Certificate" means a certificate
evidencing ownership of Preferred Securities, substantially in
the form attached as Exhibit C.
"Property Trustee" means the Person identified as the
"Property Trustee" in the preamble to this Trust Agreement,
solely in its capacity as Property Trustee of the Trust and not
in its individual capacity, or its successor in interest in such
capacity, or any successor Property Trustee appointed as herein
provided.
"Purchase Agreement" means the Purchase Agreement executed
and delivered by the Trust, the Depositor and Trapeza CDO III,
LLC, as purchaser, contemporaneously with the execution and
delivery of this Trust Agreement, as amended from time to time.
"QIB" means a "qualified institutional buyer" as defined in
Rule 144A under the Securities Act of 1933, as amended.
"Redemption Date" means, with respect to any Trust Security
to be redeemed, the date fixed for such redemption by or
pursuant to this Trust Agreement; provided, that each Note
Redemption Date and the stated maturity (or any date of
principal repayment upon early maturity) of the Notes shall be a
Redemption Date for a Like Amount of Trust Securities.
"Redemption Price" means, with respect to any Trust
Security, the Liquidation Amount of such Trust Security, plus
accumulated and unpaid Distributions to the Redemption Date,
plus the related amount of the premium, if any, paid by the
Depositor upon the concurrent redemption or payment at maturity
of a Like Amount of Notes.
"Reference Banks" has the meaning specified in Schedule A.
"Responsible Officer" means, with respect to the Property
Trustee, any Senior Vice President, any Vice President, any
Assistant Vice President, the Secretary, any Assistant
Secretary, the Treasurer, any Assistant Treasurer, any Trust
Officer or Assistant Trust Officer or any other officer of the
Corporate Trust Department of the Property Trustee 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.
"Securities Act" means the Securities Act of 1933, and any
successor statute thereto, in each case as amended from time to
time.
9
"Securities Certificate" means any one of the Common
Securities Certificates or the Preferred Securities
Certificates.
"Securities Register" and "Securities Registrar" have the
respective meanings specified in Section 5.7.
"Successor Securities" has the meaning specified in
Section 9.5(a).
"Tax Event" has the meaning specified in Section 1.1 of the
Indenture.
"Trust" means the Delaware statutory trust known as
"WesBanco Capital Trust II," which was created on June 11, 2003
under the Delaware Statutory Trust Act pursuant to the Original
Trust Agreement and the filing of the Certificate of Trust, and
continued pursuant to this Trust Agreement.
"Trust Agreement" means this Amended and Restated Trust
Agreement, as the same may be modified, amended or supplemented
from time to time in accordance with the applicable provisions
hereof, including all Schedules and Exhibits.
"Trustees" means the Administrative Trustees, the Property
Trustee and the Delaware Trustee, each as defined in this
Article I.
"Trust Property" means (a) the Notes, (b) any cash on
deposit in, or owing to, the Payment Account and (c) all
proceeds and rights in respect of the foregoing and any other
property and assets for the time being held or deemed to be held
by the Property Trustee pursuant to the trusts of this Trust
Agreement.
"Trust Security" means any one of the Common Securities or
the Preferred Securities.
ARTICLE II.
THE TRUST
SECTION 2.1. Name.
The trust continued hereby shall be known as "WesBanco
Capital Trust II", as such name may be modified from time to
time by the Administrative Trustees following written notice to
the Holders of Trust Securities and the other Trustees, in which
name the Trustees may conduct the business of the Trust, make
and execute contracts and other instruments on behalf of the
Trust and sue and be sued.
SECTION 2.2. Office of the Delaware Trustee; Principal Place
of Business.
The address of the Delaware Trustee in the State of
Delaware is White Clay Center Route 273, Newark, Delaware 19711,
Attention: Corporate Trust Administration, or such other address
in the State of Delaware as the Delaware Trustee may designate
by written notice to the Holders,
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the Depositor, the Property Trustee and the Administrative Trustees. The
principal executive office of the Trust is One Bank Plaza,
Wheeling, WV 26003, Attention: Robert H. Young, as such address may
be changed from time to time by the Administrative Trustees following
written notice to the Holders and the other Trustees.
SECTION 2.3. Initial Contribution of Trust Property; Fees, Costs
and Expenses.
The Property Trustee acknowledges receipt from the
Depositor in connection with the Original Trust Agreement of the
sum of ten dollars ($10), which constituted the initial Trust
Property. The Depositor shall pay all fees, costs and expenses
of the Trust (except with respect to the Trust Securities) as
they arise or shall, upon request of any Trustee, promptly
reimburse such Trustee for any such fees, costs and expenses
paid by such Trustee. The Depositor shall make no claim upon the
Trust Property for the payment of such fees, costs or expenses.
SECTION 2.4. Purposes of Trust.
(a) The exclusive purposes and functions of the Trust are
to (i) issue and sell Trust Securities and use the proceeds from
such sale to acquire the Notes and (ii) engage in only those
activities necessary or incidental thereto. The Delaware
Trustee, the Property Trustee and the Administrative Trustees
are trustees of the Trust, and have all the rights, powers and
duties to the extent set forth herein. The Trustees hereby
acknowledge that they are trustees of the Trust.
(b) So long as this Trust Agreement remains in effect, the
Trust (or the Trustees acting on behalf of the Trust) shall not
undertake any business, activities or transaction except as
expressly provided herein or contemplated hereby. In particular,
the Trust (or the Trustees acting on behalf of the Trust) shall
not (i) acquire any investments or engage in any activities not
authorized by this Trust Agreement, (ii) sell, assign, transfer,
exchange, mortgage, pledge, set-off or otherwise dispose of any
of the Trust Property or interests therein, including to
Holders, except as expressly provided herein, (iii) incur any
indebtedness for borrowed money or issue any other debt,
(iv) take or consent to any action that would result in the
placement of a Lien on any of the Trust Property, (v) take or
consent to any action that would reasonably be expected to cause
the Trust to become taxable as a corporation or classified as
other than a grantor trust for United States federal income tax
purposes, (vi) take or consent to any action that would cause
the Notes to be treated as other than indebtedness of the
Depositor for United States federal income tax purposes or (vii)
take or consent to any action that would cause the Trust to be
deemed to be an "investment company" required to be registered
under the Investment Company Act.
SECTION 2.5. Authorization to Enter into Certain Transactions.
(a) The Trustees shall conduct the affairs of the Trust in
accordance with and subject to the terms of this Trust
Agreement. In accordance with the following provisions (i) and
(ii), the Trustees shall have the authority to enter into all
transactions and agreements determined by the Trustees to be
appropriate in exercising the authority, express or implied,
otherwise granted to the Trustees, under this Trust Agreement,
and to perform all acts in furtherance thereof, including the
following:
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(i) As among the Trustees, each Administrative
Trustee shall severally have the power and authority to act
on behalf of the Trust with respect to the following
matters:
(A) the issuance and sale of the Trust Securities;
(B) to cause the Trust to enter into, and to
execute, deliver and perform on behalf of the Trust,
such agreements as may be necessary or desirable in
connection with the purposes and function of the
Trust, including, without limitation, a common
securities subscription agreement and a junior
subordinated note purchase agreement;
(C) assisting in the sale of the Preferred
Securities in one or more transactions exempt from
registration under the Securities Act, and in
compliance with applicable state securities or blue
sky laws;
(D) assisting in the sending of notices (other
than notices of default) and other information
regarding the Trust Securities and the Notes to the
Holders in accordance with this Trust Agreement;
(E) the appointment of a Paying Agent and
Securities Registrar in accordance with this Trust
Agreement;
(F) execution of the Trust Securities on behalf
of the Trust in accordance with this Trust Agreement;
(G) execution and delivery of closing
certificates, if any, pursuant to the Purchase
Agreement and application for a taxpayer
identification number for the Trust;
(H) preparation and filing of all applicable tax
returns and tax information reports that are required
to be filed on behalf of the Trust;
(I) establishing a record date with respect to
all actions to be taken hereunder that require a
record date to be established, except as provided in
Section 6.10(a);
(J) unless otherwise required by the Delaware
Statutory Trust Act to execute on behalf of the Trust
(either acting alone or together with the other
Administrative Trustees) any documents that such
Administrative Trustee has the power to execute
pursuant to this Trust Agreement; and
(K) the taking of any action incidental to the
foregoing as such Administrative Trustee may from time
to time determine is necessary or advisable to give
effect to the terms of this Trust Agreement.
(ii) As among the Trustees, the Property Trustee shall
have the power, duty and authority to act on behalf of the
Trust with respect to the following matters:
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(A) the receipt and holding of legal title of the Notes;
(B) the establishment of the Payment Account;
(C) the collection of interest, principal and
any other payments made in respect of the Notes and
the holding of such amounts in the Payment Account;
(D) the distribution through the Paying Agent of
amounts distributable to the Holders in respect of the
Trust Securities;
(E) the exercise of all of the rights, powers
and privileges of a holder of the Notes in accordance
with the terms of this Trust Agreement;
(F) the sending of notices of default and other
information regarding the Trust Securities and the
Notes to the Holders in accordance with this Trust
Agreement;
(G) the distribution of the Trust Property in
accordance with the terms of this Trust Agreement;
(H) to the extent provided in this Trust
Agreement, the winding up of the affairs of and
liquidation of the Trust and the preparation,
execution and filing of the certificate of
cancellation of the Trust with the Secretary of State
of the State of Delaware; and
(I) the taking of any action incidental to the
foregoing as the Property Trustee may from time to
time determine is necessary or advisable to give
effect to the terms of this Trust Agreement and
protect and conserve the Trust Property for the
benefit of the Holders (without consideration of the
effect of any such action on any particular Holder).
(b) In connection with the issue and sale of the Preferred
Securities, the Depositor shall have the right and
responsibility to assist the Trust with respect to, or effect on
behalf of the Trust, the following (and any actions taken by the
Depositor in furtherance of the following prior to the date of
this Trust Agreement are hereby ratified and confirmed in all
respects):
(i) the negotiation of the terms of, and the
execution and delivery of, the Purchase Agreement providing
for the sale of the Preferred Securities in one or more
transactions exempt from registration under the Securities
Act, and in compliance with applicable state securities or
blue sky laws; and
(ii) the taking of any other actions necessary or
desirable to carry out any of the foregoing activities.
(c) Notwithstanding anything herein to the contrary, the
Administrative Trustees are authorized and directed to conduct
the affairs of the Trust and authorized to operate the Trust so
that the Trust will not be taxable as a corporation or
classified as other than a grantor trust for United States
federal income tax purposes, so that the Notes will be treated
as indebtedness of
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the Depositor for United States federal income tax purposes and
so that the Trust will not be deemed to be an "investment company"
required to be registered under the Investment Company Act. In
this connection, each Administrative Trustee is authorized to
take any action, not inconsistent with applicable law, the
Certificate of Trust or this Trust Agreement, that such
Administrative Trustee determines in his or
her discretion to be necessary or desirable for such purposes,
as long as such action does not adversely affect in any material
respect the interests of the Holders of the Outstanding
Preferred Securities. In no event shall the Administrative
Trustees be liable to the Trust or the Holders for any failure
to comply with this Section 2.5 to the extent that such failure
results solely from a change in law or regulation or in the
interpretation thereof.
(d) Any action taken by a Trustee in accordance with its
powers shall constitute the act of and serve to bind the Trust.
In dealing with any Trustee acting on behalf of the Trust, no
Person shall be required to inquire into the authority of such
Trustee to bind the Trust. Persons dealing with the Trust are
entitled to rely conclusively on the power and authority of any
Trustee as set forth in this Trust Agreement.
SECTION 2.6. Assets of Trust.
The assets of the Trust shall consist of the Trust Property.
SECTION 2.7. Title to Trust Property.
(a) Legal title to all Trust Property shall be vested at
all times in the Property Trustee and shall be held and
administered by the Property Trustee in trust for the benefit of
the Trust and the Holders in accordance with this Trust
Agreement.
(b) The Holders shall not have any right or title to the
Trust Property other than the undivided beneficial interest in
the assets of the Trust conferred by their Trust Securities and
they shall have no right to call for any partition or division
of property, profits or rights of the Trust except as described
below. The Trust Securities shall be personal property giving
only the rights specifically set forth therein and in this Trust
Agreement.
ARTICLE III.
PAYMENT ACCOUNT; PAYING AGENTS
SECTION 3.1. Payment Account.
(a) On or prior to the Closing Date, the Property Trustee
shall establish the Payment Account. The Property Trustee and
the Paying Agent shall have exclusive control and sole right of
withdrawal with respect to the Payment Account for the purpose
of making deposits in and withdrawals from the Payment Account
in accordance with this Trust Agreement. All monies and other
property deposited or held from time to time in the Payment
Account shall be held by the Property Trustee in the Payment
Account for the exclusive benefit of the Holders and for
Distribution as herein provided.
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(b) The Property Trustee shall deposit in the Payment
Account, promptly upon receipt, all payments of principal of or
interest on, and any other payments with respect to, the Notes.
Amounts held in the Payment Account shall not be invested by the
Property Trustee pending distribution thereof.
SECTION 3.2. Appointment of Paying Agents.
The Paying Agent shall initially be the Property Trustee.
The Paying Agent shall make Distributions to Holders from the
Payment Account and shall report the amounts of such
Distributions to the Property Trustee and the Administrative
Trustees. Any Paying Agent shall have the revocable power to
withdraw funds from the Payment Account solely for the purpose
of making the Distributions referred to above. The
Administrative Trustees may revoke such power and remove the
Paying Agent in their sole discretion. Any Person acting as
Paying Agent shall be permitted to resign as Paying Agent upon
thirty (30) days' written notice to the Administrative Trustees
and the Property Trustee. If the Property Trustee shall no
longer be the Paying Agent or a successor Paying Agent shall
resign or its authority to act be revoked, the Administrative
Trustees shall appoint a successor (which shall be a bank or
trust company) to act as Paying Agent. Such successor Paying
Agent appointed by the Administrative Trustees shall execute and
deliver to the Trustees an instrument in which such successor
Paying Agent shall agree with the Trustees that as Paying Agent,
such successor Paying Agent will hold all sums, if any, held by
it for payment to the Holders in trust for the benefit of the
Holders entitled thereto until such sums shall be paid to such
Holders. The Paying Agent shall return all unclaimed funds to
the Property Trustee and upon removal of a Paying Agent such
Paying Agent shall also return all funds in its possession to
the Property Trustee. The provisions of Article VIII shall apply
to the Property Trustee also in its role as Paying Agent, for so
long as the Property Trustee shall act as Paying Agent and, to
the extent applicable, to any other Paying Agent appointed
hereunder. Any reference in this Trust Agreement to the Paying
Agent shall include any co-paying agent unless the context
requires otherwise.
ARTICLE IV.
DISTRIBUTIONS; REDEMPTION
SECTION 4.1. Distributions.
(a) The Trust Securities represent undivided beneficial
interests in the Trust Property, and Distributions (including
any Additional Interest Amounts) will be made on the Trust
Securities at the rate and on the dates that payments of
interest (including any Additional Interest) are made on the
Notes. Accordingly:
(i) Distributions on the Trust Securities shall be
cumulative, and shall accumulate whether or not there are
funds of the Trust available for the payment of
Distributions. Distributions shall accumulate from June 19,
2003, and, except as provided in clause (ii) below, shall
be payable quarterly in arrears on March 30, June 30,
September 30 and December 30 of each year, commencing on
September 30, 2003. If any date on which a Distribution is
otherwise payable on the Trust Securities is not a
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Business Day, then the payment of such Distribution shall be made on
the next succeeding Business Day (and no interest shall
accrue in respect of the amounts whose payment is so
delayed for the period from and after each such date until
the next succeeding Business Day), except that, if such
Business Day falls in the next succeeding calendar year,
such payment shall be made on the immediately preceding
Business Day, in each case, with the same force and effect
as if made on such date (each date on which Distributions
are payable in accordance with this Section 4.1(a)(i), a
"Distribution Date");
(ii) in the event (and to the extent) that the
Depositor exercises its right under the Indenture to defer
the payment of interest on the Notes, Distributions on the
Trust Securities shall be deferred. Under the Indenture,
so long as no Note Event of Default has occurred and is
continuing, the Depositor shall have the right, at any time
and from time to time during the term of the Notes, to
defer the payment of interest on the Notes for a period of
up to twenty (20) consecutive quarterly interest payment
periods (each such extended interest payment period, an
"Extension Period"), during which Extension Period no
interest on the Notes shall be due and payable (except any
Additional Tax Sums that may be due and payable). No
interest on the Notes shall be due and payable during an
Extension Period, except at the end thereof, but each
installment of interest that would otherwise have been due
and payable during such Extension Period shall bear
Additional Interest (to the extent payment of such interest
would be legally enforceable) at the fixed rate equal to
5.80% per annum through the Distribution Date in June 2008;
and a variable rate, reset quarterly, equal to LIBOR plus
3.15% per annum thereafter compounded quarterly, from the
dates on which amounts would have otherwise been due and
payable until paid or until funds for the payment thereof
have been made available for payment. If Distributions are
deferred, the deferred Distributions (including Additional
Interest Amounts) shall be paid on the date that the
related Extension Period terminates, to Holders of the
Trust Securities as they appear on the books and records of
the Trust on the record date immediately preceding such
termination date.
(iii) Distributions shall accumulate in respect of the
Trust Securities at a fixed rate equal to 5.80% of the
Liquidation Amount of the Trust Securities per annum
through the Distribution Date in June 2008; and a variable
rate, reset quarterly, equal to LIBOR plus 3.15% of the
Liquidation Amount of the Trust Securities per annum
thereafter, such rate being the rate of interest payable on
the Notes. LIBOR shall be determined by the Calculation
Agent in accordance with Schedule A. The amount of
Distributions payable for any period less than a full
Distribution period shall be computed on the basis of a
360-day year and the actual number of days elapsed in the
relevant Distribution period. The amount of Distributions
payable for any period shall include any Additional
Interest Amounts in respect of such period; and
(iv) Distributions on the Trust Securities shall be
made by the Paying Agent from the Payment Account and shall
be payable on each Distribution Date only to the extent
that the Trust has funds then on hand and available in the
Payment Account for the payment of such Distributions.
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(b) Distributions on the Trust Securities with respect to
a Distribution Date shall be payable to the Holders thereof as
they appear on the Securities Register for the Trust Securities
at the close of business on the relevant record date, which
shall be at the close of business on the fifteenth day (whether
or not a Business Day) preceding the relevant Distribution Date.
Distributions payable on any Trust Securities that are not
punctually paid on any Distribution Date as a result of the
Depositor having failed to make an interest payment under the
Notes will cease to be payable to the Person in whose name such
Trust Securities are registered on the relevant record date, and
such defaulted Distributions and any Additional Interest Amounts
will instead be payable to the Person in whose name such Trust
Securities are registered on the special record date, or other
specified date for determining Holders entitled to such
defaulted Distribution and Additional Interest Amount,
established in the same manner, and on the same date, as such is
established with respect to the Notes under the Indenture.
SECTION 4.2. Redemption.
(a) On each Note Redemption Date and on the stated
maturity (or any date of principal repayment upon early
maturity) of the Notes and on each other date on (or in respect
of) which any principal on the Notes is repaid, the Trust will
be required to redeem a Like Amount of Trust Securities at the
Redemption Price.
(b) Notice of redemption shall be given by the Property
Trustee by first-class mail, postage prepaid, mailed not less
than thirty (30) nor more than sixty (60) days prior to the
Redemption Date to each Holder of Trust Securities to be
redeemed, at such Holder's address appearing in the Securities
Register. All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price or, if the Redemption Price
cannot be calculated prior to the time the notice is
required to be sent, the estimate of the Redemption Price
provided pursuant to the Indenture, as calculated by the
Depositor, together with a statement that it is an estimate
and that the actual Redemption Price will be calculated by
the Calculation Agent on the fifth Business Day prior to
the Redemption Date (and if an estimate is provided, a
further notice shall be sent of the actual Redemption Price
on the date that such Redemption Price is calculated);
(iii) if less than all the Outstanding Trust Securities
are to be redeemed, the identification (and, in the case of
partial redemption, the respective amounts) and Liquidation
Amounts of the particular Trust Securities to be redeemed;
(iv) that on the Redemption Date, the Redemption Price
will become due and payable upon each such Trust Security,
or portion thereof, to be redeemed and that Distributions
thereon will cease to accumulate on such Trust Security or
such portion, as the case may be, on and after said date,
except as provided in Section 4.2(d);
(v) the place or places where the Trust Securities
are to be surrendered for the payment of the Redemption
Price; and
(vi) such other provisions as the Property Trustee deems
relevant.
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(c) The Trust Securities (or portion thereof) redeemed on
each Redemption Date shall be redeemed at the Redemption Price
with the proceeds from the contemporaneous redemption or payment
at maturity of Notes. Redemptions of the Trust Securities (or
portion thereof) shall be made and the Redemption Price shall be
payable on each Redemption Date only to the extent that the
Trust has funds then on hand and available in the Payment
Account for the payment of such Redemption Price. Under the
Indenture, the Notes may be redeemed by the Depositor on any
Interest Payment Date, at the Depositor's option, on or after
June 15, 2008, in whole or in part, from time to time at a
redemption price equal to one hundred percent (100%) of the
principal amount thereof, together, in the case of any such
redemption, with accrued interest, including any Additional
Interest, to but excluding the date fixed for redemption (the
"Indenture Redemption Price"); provided, that the Depositor
shall have received the prior approval of the Federal Reserve
Board if then required. The Notes may also be redeemed by the
Depositor, at its option, in whole but not in part, upon the
occurrence of a Capital Disqualification Event, an Investment
Company Event or a Tax Event at the Indenture Redemption Price.
(d) If the Property Trustee gives a notice of redemption
in respect of any Preferred Securities, then by 10:00 A.M., New
York City time, on the Redemption Date, the Depositor shall
deposit sufficient funds with the Property Trustee to pay the
Redemption Price. If such deposit has been made by such time,
then by 12:00 noon, New York City time, on the Redemption Date,
the Property Trustee will, with respect to Book-Entry Preferred
Securities, irrevocably deposit with the Depositary for such
Book-Entry Preferred Securities, to the extent available
therefor, funds sufficient to pay the applicable Redemption
Price and will give such Depositary irrevocable instructions and
authority to pay the Redemption Price to the Holders of the
Preferred Securities. With respect to Preferred Securities that
are not Book-Entry Preferred Securities, the Property Trustee
will irrevocably deposit with the Paying Agent, to the extent
available therefor, funds sufficient to pay the applicable
Redemption Price and will give the Paying Agent irrevocable
instructions and authority to pay the Redemption Price to the
Holders of the Preferred Securities upon surrender of their
Preferred Securities Certificates. Notwithstanding the
foregoing, Distributions payable on or prior to the Redemption
Date for any Trust Securities (or portion thereof) called for
redemption shall be payable to the Holders of such Trust
Securities as they appear on the Securities Register on the
relevant record dates for the related Distribution Dates. If
notice of redemption shall have been given and funds deposited
as required, then upon the date of such deposit, all rights of
Holders holding Trust Securities (or portion thereof) so called
for redemption will cease, except the right of such Holders to
receive the Redemption Price and any Distribution payable in
respect of the Trust Securities on or prior to the Redemption
Date, but without interest, and, in the case of a partial
redemption, the right of such Holders to receive a new Trust
Security or Securities of authorized denominations, in aggregate
Liquidation Amount equal to the unredeemed portion of such Trust
Security or Securities, and such Securities (or portion thereof)
called for redemption will cease to be Outstanding. In the event
that any date on which any Redemption Price is payable is not a
Business Day, then payment of the Redemption Price payable on
such date will be made on the next succeeding Business Day (and
no interest shall accrue in respect of the amounts whose payment
is so delayed for the period from and after each such date until
the next succeeding Business Day), except that, if such Business
Day falls in the next succeeding calendar year, such payment
shall be made on the immediately preceding Business Day, in each
case, with the same force and effect as if made on such date. In
the event that payment of the Redemption Price in respect of any
Trust Securities (or portion thereof) called for redemption is
improperly withheld
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or refused and not paid either by the Trust
or by the Depositor pursuant to the Guarantee Agreement,
Distributions on such Trust Securities(or portion thereof) will
continue to accumulate, as set forth in Section 4.1, from the
Redemption Date originally established by the Trust for such
Trust Securities(or portion thereof) to the date such Redemption
Price is actually paid, in which case the actual payment date
will be the date fixed for redemption for purposes of
calculating the Redemption Price.
(e) Subject to Section 4.3(a), if less than all the
Outstanding Trust Securities are to be redeemed on a Redemption
Date, then the aggregate Liquidation Amount of Trust Securities
to be redeemed shall be allocated pro rata to the Common
Securities and the Preferred Securities based upon the relative
aggregate Liquidation Amounts of the Common Securities and the
Preferred Securities. The Preferred Securities to be redeemed
shall be redeemed on a pro rata basis based upon their
respective Liquidation Amounts not more than sixty (60) days
prior to the Redemption Date by the Property Trustee from the
Outstanding Preferred Securities not previously called for
redemption; provided, however, that with respect to Holders that
would be required to hold less than one hundred (100) but more
than zero (0) Trust Securities as a result of such redemption,
the Trust shall redeem Trust Securities of each such Holder so
that after such redemption such Holder shall hold either one
hundred (100) Trust Securities or such Holder no longer holds
any Trust Securities, and shall use such method (including,
without limitation, by lot) as the Trust shall deem fair and
appropriate; and provided, further, that so long as the
Preferred Securities are Book-Entry Preferred Securities, such
selection shall be made in accordance with the Applicable
Depositary Procedures for the Preferred Securities by such
Depositary. The Property Trustee shall promptly notify the
Securities Registrar in writing of the Preferred Securities (or
portion thereof) selected for redemption and, in the case of any
Preferred Securities selected for partial redemption, the
Liquidation Amount thereof to be redeemed. For all purposes of
this Trust Agreement, unless the context otherwise requires, all
provisions relating to the redemption of Preferred Securities
shall relate, in the case of any Preferred Securities redeemed
or to be redeemed only in part, to the portion of the aggregate
Liquidation Amount of Preferred Securities that has been or is
to be redeemed.
(f) The Trust in issuing the Trust Securities may use
"CUSIP" numbers (if then generally in use), and, if so, the
Property Trustee shall indicate the "CUSIP" numbers of the Trust
Securities in notices of redemption and related materials as a
convenience to Holders; provided, that any such notice may state
that no representation is made as to the correctness of such
numbers either as printed on the Trust Securities or as
contained in any notice of redemption and related materials.
SECTION 4.3. Subordination of Common Securities.
(a) Payment of Distributions (including any Additional
Interest Amounts) on, the Redemption Price of and the
Liquidation Distribution in respect of, the Trust Securities, as
applicable, shall be made, pro rata among the Common Securities
and the Preferred Securities based on the Liquidation Amount of
the respective Trust Securities; provided, that if on any
Distribution Date, Redemption Date or Liquidation Date an Event
of Default shall have occurred and be continuing, no payment of
any Distribution (including any Additional Interest Amounts) on,
Redemption Price of or Liquidation Distribution in respect of,
any Common Security, and no other payment on account of the
redemption, liquidation or other acquisition of Common
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Securities, shall be made unless payment in full in cash of all
accumulated and unpaid Distributions (including any Additional
Interest Amounts) on all Outstanding Preferred Securities for
all Distribution periods terminating on or prior thereto, or in
the case of payment of the Redemption Price the full amount of
such Redemption Price on all Outstanding Preferred Securities
then called for redemption, or in the case of payment of the
Liquidation Distribution the full amount of such Liquidation
Distribution on all Outstanding Preferred Securities, shall have
been made or provided for, and all funds immediately available
to the Property Trustee shall first be applied to the payment in
full in cash of all Distributions (including any Additional
Interest Amounts) on, or the Redemption Price of or the
Liquidation Distribution in respect of, the Preferred Securities
then due and payable.
(b) In the case of the occurrence of any Event of Default,
the Holders of the Common Securities shall have no right to act
with respect to any such Event of Default under this Trust
Agreement until all such Events of Default with respect to the
Preferred Securities have been cured, waived or otherwise
eliminated. Until all such Events of Default under this Trust
Agreement with respect to the Preferred Securities have been so
cured, waived or otherwise eliminated, the Property Trustee
shall act solely on behalf of the Holders of the Preferred
Securities and not on behalf of the Holders of the Common
Securities, and only the Holders of all the Preferred Securities
will have the right to direct the Property Trustee to act on
their behalf.
SECTION 4.4. Payment Procedures.
Payments of Distributions (including any Additional
Interest Amounts), the Redemption Price, Liquidation Amount or
any other amounts in respect of the Preferred Securities shall
be made by wire transfer at such place and to such account at a
banking institution in the United States as may be designated in
writing at least ten (10) Business Days prior to the date for
payment by the Person entitled thereto unless proper written
transfer instructions have not been received by the relevant
record date, in which case such payments shall be made by check
mailed to the address of such Person as such address shall
appear in the Securities Register. If any Preferred Securities
are held by a Depositary, such Distributions thereon shall be
made to the Depositary in immediately available funds. Payments
in respect of the Common Securities shall be made in such manner
as shall be mutually agreed between the Property Trustee and the
Holder of all the Common Securities.
SECTION 4.5. Withholding Tax.
The Trust and the Administrative Trustees shall comply with
all withholding and backup withholding tax requirements under
United States federal, state and local law. The Administrative
Trustees on behalf of 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 and backup
withholding tax with respect to each Holder and any
representations and forms as shall reasonably be requested by
the Administrative Trustees on behalf of the Trust to assist it
in determining the extent of, and in fulfilling, its withholding
and backup withholding tax obligations. The Administrative
Trustees shall file required forms with applicable jurisdictions
and, unless an exemption from withholding and backup withholding
tax 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 jurisdiction
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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
overwithholding, 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
Administrative Trustees on behalf of the Trust may reduce
subsequent Distributions by the amount of such required
withholding.
SECTION 4.6. Tax Returns and Other Reports.
(a) The Administrative Trustees shall prepare (or cause to
be prepared) at the principal office of the Trust in the United
States, as defined for purposes of Treasury regulations section
301.7701-7, at the Depositor's expense, and file, all United
States federal, state and local tax and information returns and
reports required to be filed by or in respect of the Trust. The
Administrative Trustees shall prepare at the principal office of
the Trust in the United States, as defined for purposes of
Treasury regulations section 301.7701-7, and furnish (or cause
to be prepared and furnished), by January 31 in each taxable
year of the Trust to each Holder all Internal Revenue Service
forms and returns required to be provided by the Trust. The
Administrative Trustees shall provide the Depositor and the
Property Trustee with a copy of all such returns and reports
promptly after such filing or furnishing.
(b) So long as the Property Trustee is the Holder of the
Notes, the Administrative Trustees will cause the Depositor's
reports on Form FR Y-9C, FR Y-9LP and FR Y-6 to be delivered to
the Property Trustee promptly following their filing with the
Federal Reserve.
SECTION 4.7. Payment of Taxes, Duties, Etc. of the Trust.
Upon receipt under the Notes of Additional Tax Sums and
upon the written direction of the Administrative Trustees, the
Property Trustee shall promptly pay, solely out of monies on
deposit pursuant to this Trust Agreement, any Additional Taxes
imposed on the Trust by the United States or any other taxing
authority.
SECTION 4.8. Payments under Indenture or Pursuant to Direct Actions.
Any amount payable hereunder to any Holder of Preferred
Securities shall be reduced by the amount of any corresponding
payment such Holder (or any Owner with respect thereto) has
directly received pursuant to Section 5.8 of the Indenture or
Section 6.10(b) of this Trust Agreement.
SECTION 4.9. Exchanges.
(a) If at any time the Depositor or any of its Affiliates
(in either case, a "Depositor Affiliate") is the Owner or Holder
of any Preferred Securities, such Depositor Affiliate shall have
the right to deliver to the Property Trustee all or such portion
of its Preferred Securities as it elects and receive, in
exchange therefor, a Like Amount of Notes. Such election (i)
shall be exercisable effective on any Distribution Date by such
Depositor Affiliate delivering to the Property Trustee a written
notice of such election specifying the Liquidation Amount of
Preferred Securities with respect to which such election is
being made and the Distribution Date on which such exchange
shall occur, which Distribution Date shall be not less than ten (10)
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Business Days after the date of receipt by the Property
Trustee of such election notice and (ii) shall be conditioned
upon such Depositor Affiliate having delivered or caused to be
delivered to the Property Trustee or its designee the Preferred
Securities that are the subject of such election by 10:00 A.M.
New York time, on the Distribution Date on which such exchange
is to occur. After the exchange, such Preferred Securities will
be canceled and will no longer be deemed to be Outstanding and
all rights of the Depositor Affiliate with respect to such
Preferred Securities will cease.
(b) In the case of an exchange described in Section
4.9(a), the Property Trustee on behalf of the Trust will, on the
date of such exchange, exchange Notes having a principal amount
equal to a proportional amount of the aggregate Liquidation
Amount of the Outstanding Common Securities, based on the ratio
of the aggregate Liquidation Amount of the Preferred Securities
exchanged pursuant to Section 4.9(a) divided by the aggregate
Liquidation Amount of the Preferred Securities Outstanding
immediately prior to such exchange, for such proportional amount
of Common Securities held by the Depositor (which
contemporaneously shall be canceled and no longer be deemed to
be Outstanding); provided, that the Depositor delivers or causes
to be delivered to the Property Trustee or its designee the
required amount of Common Securities to be exchanged by 10:00
A.M. New York time, on the Distribution Date on which such
exchange is to occur.
SECTION 4.10. Calculation Agent.
(a) The Property Trustee shall initially, and for so
long as it holds any of the Notes, be the Calculation Agent for
purposes of determining LIBOR for each Distribution Date. The
Calculation Agent may be removed by the Administrative Trustees
at any time. If the Calculation Agent is unable or unwilling to
act as such or is removed by the Administrative Trustees, the
Administrative Trustees will promptly appoint as a replacement
Calculation Agent the London office of a leading bank which is
engaged in transactions in three-month Eurodollar deposits in
the international Eurodollar market and which does not control
or is not controlled by or under common control with the
Administrative Trustee or its Affiliates. The Calculation Agent
may not resign its duties without a successor having been duly
appointed.
(b) The Calculation Agent shall be required to agree
that, as soon as possible after 11:00 a.m. (London time) on each
LIBOR Determination Date, but in no event later than 11:00 a.m.
(London time) on the Business Day immediately following each
LIBOR Determination Date, the Calculation Agent will calculate
the interest rate (rounded to the nearest cent, with half a cent
being rounded upwards) for the related Distribution Date, and
will communicate such rate and amount to the Depositor, Trustee,
each Paying Agent and the Depositary. The Calculation Agent will
also specify to the Administrative Trustee the quotations upon
which the foregoing rates and amounts are based and, in any
event, the Calculation Agent shall notify the Administrative
Trustee before 5:00 p.m. (London time) on each LIBOR
Determination Date that either: (i) it has determined or is in
the process of determining the foregoing rates and amounts or
(ii) it has not determined and is not in the process of
determining the foregoing rates and amounts, together with its
reasons therefor. The Calculation Agent's determination of the
foregoing rates and amounts for any Distribution Date will (in
the absence of manifest error) be final and binding upon all
parties. For the sole purpose of calculating the interest rate for the
22
Trust Securities, "Business Day" shall be defined as any
day on which dealings in deposits in Dollars are transacted in
the London interbank market.
SECTION 4.11. Certain Accounting Matters.
(a) At all times during the existence of the Trust, the
Administrative Trustees shall keep, or cause to be kept at the
principal office of the Trust in the United States, as defined
for purposes of Treasury Regulations section 301.7701-7, 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.
(b) The Administrative Trustees shall either (i) if the
Depositor is then subject to such reporting requirements, cause
each Form 10-K and Form 10-Q prepared by the Depositor and filed
with the Commission in accordance with the Exchange Act to be
delivered to each Holder, with a copy to the Property Trustee,
within thirty (30) days after the filing thereof or (ii) cause
to be prepared at the principal office of the Trust in the
United States, as defined for purposes of Treasury Regulations
section 301.7701-7, and delivered to each of the Holders, with a
copy to the Property Trustee, within ninety (90) days after the
end of each Fiscal Year, 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 Trust shall maintain one or more bank accounts in
the United States, as defined for purposes of Treasury
Regulations section 301.7701-7, in the name and for the sole
benefit of the Trust; provided, however, that all payments of
funds in respect of the Notes held by the Property Trustee shall
be made directly to the Payment Account and no other funds of
the Trust shall be deposited in the Payment Account. The sole
signatories for such accounts (including the Payment Account)
shall be designated by the Property Trustee.
ARTICLE V.
SECURITIES
SECTION 5.1. Initial Ownership.
Upon the creation of the Trust and the contribution by the
Depositor referred to in Section 2.3 and until the issuance of
the Trust Securities, and at any time during which no Trust
Securities are Outstanding, the Depositor shall be the sole
beneficial owner of the Trust.
SECTION 5.2. Authorized Trust Securities.
The Trust shall be authorized to issue one series of
Preferred Securities having an aggregate Liquidation Amount of
$13,000,000 and one series of Common Securities having an
aggregate Liquidation Amount of $410,000.
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SECTION 5.3. Issuance of the Common Securities; Subscription
and Purchase of Notes.
On the Closing Date, an Administrative Trustee, on behalf
of the Trust, shall execute and deliver to the Depositor Common
Securities Certificates, registered in the name of the
Depositor, evidencing an aggregate of Four Hundred and Ten (410)
Common Securities having an aggregate Liquidation Amount of Four
Hundred and Ten Thousand Dollars ($410,000), against receipt by
the Trust of the aggregate purchase price of such Common
Securities of Four Hundred and Ten Thousand Dollars ($410,000).
Contemporaneously therewith and with the sale by the Trust to
the Holders of an aggregate of Thirteen Thousand (13,000)
Preferred Securities having an aggregate Liquidation Amount of
Thirteen Million Dollars ($13,000,000), an Administrative
Trustee, on behalf of the Trust, shall purchase from the
Depositor Notes, to be registered in the name of the Property
Trustee on behalf of the Trust and having an aggregate principal
amount equal to Thirteen Million Four Hundred and Ten Thousand
Dollars ($13,410,000), and, in satisfaction of the purchase
price for such Notes, the Property Trustee, on behalf of the
Trust, shall deliver to the Depositor the sum of Thirteen
Million One Hundred and Fifty Thousand Dollars ($13,150,000)
(being the aggregate amount paid by the Holders for the
Preferred Securities, net of the discount, and the amount paid
by the Depositor for the Common Securities).
SECTION 5.4. The Securities Certificates.
(a) The Preferred Securities Certificates shall be issued
in minimum denominations of $100,000 Liquidation Amount and
integral multiples of $1,000 in excess thereof, and the Common
Securities Certificates shall be issued in minimum denominations
of $10,000 Liquidation Amount and integral multiples of $1,000
in excess thereof. The Securities Certificates shall be
executed on behalf of the Trust by manual or facsimile signature
of at least one Administrative Trustee. Securities Certificates
bearing the signatures of individuals who were, at the time when
such signatures shall have been affixed, authorized to sign such
Securities Certificates on behalf of the Trust shall be validly
issued and entitled to the benefits of this Trust Agreement,
notwithstanding that such individuals or any of them shall have
ceased to be so authorized prior to the delivery of such
Securities Certificates or did not have such authority at the
date of delivery of such Securities Certificates.
(b) On the Closing Date, upon the written order of an
authorized officer of the Depositor, the Administrative Trustees
shall cause Securities Certificates to be executed on behalf of
the Trust and delivered, without further corporate action by the
Depositor, in authorized denominations.
(c) The Preferred Securities issued to QIBs shall be,
except as provided in Section 5.6, Book-Entry Preferred
Securities issued in the form of one or more Global Preferred
Securities registered in the name of the Depositary, or its
nominee and deposited with the Depositary or a custodian for the
Depositary for credit by the Depositary to the respective
accounts of the Depositary Participants thereof (or such other
accounts as they may direct). The Preferred Securities issued
to a Person other than a QIB shall be issued in the form of
Definitive Preferred Securities Certificates.
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(d) A Preferred Security shall not be valid until
authenticated by the manual signature of an Authorized Officer
of the Property Trustee. Such signature shall be conclusive
evidence that the Preferred Security has been authenticated
under this Trust Agreement. Upon written order of the Trust
signed by one Administrative Trustee, the Property Trustee shall
authenticate the Preferred Securities for original issue. The
Property Trustee may appoint an authenticating agent that is a
U.S. Person acceptable to the Trust to authenticate the
Preferred Securities. A Common Security need not be so
authenticated and shall be valid upon execution by one or more
Administrative Trustees. The form of this certificate of
authentication can be found in Section 5.13.
SECTION 5.5. Rights of Holders.
The Trust Securities shall have no preemptive or similar
rights and when issued and delivered to Holders against payment
of the purchase price therefor will be fully paid and non-
assessable by the Trust. Except as provided in Section 5.11(b),
the Holders of the Trust Securities, in their capacities as
such, shall be entitled to the same limitation of personal
liability extended to stockholders of private corporations for
profit organized under the General Corporation Law of the State
of Delaware.
SECTION 5.6. Book-Entry Preferred Securities.
(a) A Global Preferred Security may be exchanged, in whole
or in part, for Definitive Preferred Securities Certificates
registered in the names of the Owners only if such exchange
complies with Section 5.7 and (i) the Depositary advises the
Administrative Trustees and the Property Trustee in writing that
the Depositary is no longer willing or able properly to
discharge its responsibilities with respect to the Global
Preferred Security, and no qualified successor is appointed by
the Administrative Trustees within ninety (90) days of receipt
of such notice, (ii) the Depositary ceases to be a clearing
agency registered under the Exchange Act and the Administrative
Trustees fail to appoint a qualified successor within ninety
(90) days of obtaining knowledge of such event, (iii) the
Administrative Trustees at their option advise the Property
Trustee in writing that the Trust elects to terminate the book-
entry system through the Depositary or (iv) a Note Event of
Default has occurred and is continuing. Upon the occurrence of
any event specified in clause (i), (ii), (iii) or (iv) above,
the Administrative Trustees shall notify the Depositary and
instruct the Depositary to notify all Owners of Book-Entry
Preferred Securities, the Delaware Trustee and the Property
Trustee of the occurrence of such event and of the availability
of the Definitive Preferred Securities Certificates to Owners of
the Preferred Securities requesting the same. Upon the issuance
of Definitive Preferred Securities Certificates, the Trustees
shall recognize the Holders of the Definitive Preferred
Securities Certificates as Holders. Notwithstanding the
foregoing, if an Owner of a beneficial interest in a Global
Preferred Security wishes at any time to transfer an interest in
such Global Preferred Security to a Person other than a QIB,
such transfer shall be effected, subject to the Applicable
Depositary Procedures, in accordance with the provisions of this
Section 5.6 and Section 5.7, and the transferee shall receive a
Definitive Preferred Securities Certificate in connection with
such transfer. A holder of a Definitive Preferred Securities
Certificate that is a QIB may, upon request and in accordance
with the provisions of this Section 5.6 and Section 5.7,
exchange such Definitive Preferred Securities Certificate for a
beneficial interest in a Global Preferred Security.
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(b) If any Global Preferred Security is to be exchanged
for Definitive Preferred Securities Certificates or canceled in
part, or if any Definitive Preferred Securities Certificate is
to be exchanged in whole or in part for any Global Preferred
Security, then either (i) such Global Preferred Security shall
be so surrendered for exchange or cancellation as provided in
this Article V or (ii) the aggregate Liquidation Amount
represented by such Global Preferred Security shall be reduced,
subject to Section 5.4, or increased by an amount equal to the
Liquidation Amount represented by that portion of the Global
Preferred Security to be so exchanged or canceled, or equal to
the Liquidation Amount represented by such Definitive Preferred
Securities Certificates to be so exchanged for any Global
Preferred Security, as the case may be, by means of an
appropriate adjustment made on the records of the Securities
Registrar, whereupon the Property Trustee, in accordance with
the Applicable Depositary Procedures, shall instruct the
Depositary or its authorized representative to make a
corresponding adjustment to its records. Upon any such surrender
to the Administrative Trustees or the Securities Registrar of
any Global Preferred Security or Securities by the Depositary,
accompanied by registration instructions, the Administrative
Trustees, or any one of them, shall execute the Definitive
Preferred Securities Certificates in accordance with the
instructions of the Depositary. None of the Securities
Registrar or the Trustees shall be liable for any delay in
delivery of such instructions and may conclusively rely on, and
shall be fully protected in relying on, such instructions.
(c) Every Definitive Preferred Securities Certificate
executed and delivered upon registration or transfer of, or in
exchange for or in lieu of, a Global Preferred Security or any
portion thereof shall be executed and delivered in the form of,
and shall be, a Global Preferred Security, unless such
Definitive Preferred Securities Certificate is registered in the
name of a Person other than the Depositary for such Global
Preferred Security or a nominee thereof.
(d) The Depositary or its nominee, as registered owner of
a Global Preferred Security, shall be the Holder of such Global
Preferred Security for all purposes under this Trust Agreement
and the Global Preferred Security, and Owners with respect to a
Global Preferred Security shall hold such interests pursuant to
the Applicable Depositary Procedures. The Securities Registrar
and the Trustees shall be entitled to deal with the Depositary
for all purposes of this Trust Agreement relating to the Global
Preferred Securities (including the payment of the Liquidation
Amount of and Distributions on the Book-Entry Preferred
Securities represented thereby and the giving of instructions or
directions by Owners of Book-Entry Preferred Securities
represented thereby and the giving of notices) as the sole
Holder of the Book-Entry Preferred Securities represented
thereby and shall have no obligations to the Owners thereof.
None of the Trustees nor the Securities Registrar shall have any
liability in respect of any transfers effected by the
Depositary.
(e) The rights of the Owners of the Book-Entry Preferred
Securities shall be exercised only through the Depositary and
shall be limited to those established by law, the Applicable
Depositary Procedures and agreements between such Owners and the
Depositary and/or the Depositary Participants; provided, solely
for the purpose of determining whether the Holders of the
requisite amount of Preferred Securities have voted on any
matter provided for in this Trust Agreement, to the extent that
Preferred Securities are represented by a Global Preferred
Security, the Trustees may conclusively rely on, and shall be
fully protected in relying on, any written instrument (including
a proxy) delivered to the Property Trustee by the Depositary
setting forth the Owners' votes or assigning the right to vote
on any matter to any
26
other Persons either in whole or in part.
To the extent that Preferred Securities are represented by a
Global Preferred Security, the initial Depositary will make
book-entry transfers among the Depositary Participants and
receive and transmit payments on the Preferred Securities that
are represented by a Global Preferred Security to such
Depositary Participants, and none of the Depositor or the
Trustees shall have any responsibility or obligation with
respect thereto.
(f) To the extent that a notice or other communication to
the Holders is required under this Trust Agreement, for so long
as Preferred Securities are represented by a Global Preferred
Security, the Trustees shall give all such notices and
communications to the Depositary, and shall have no obligations
to the Owners.
SECTION 5.7. Registration of Transfer and Exchange of
Preferred Securities Certificates.
(a) The Property Trustee shall keep or cause to be kept,
at the Corporate Trust Office, a register or registers (the
"Securities Register") in which the registrar and transfer agent
with respect to the Trust Securities (the "Securities
Registrar"), subject to such reasonable regulations as it may
prescribe, shall provide for the registration of Preferred
Securities Certificates and Common Securities Certificates and
registration of transfers and exchanges of Preferred Securities
Certificates as herein provided. The Person acting as the
Property Trustee shall at all times also be the Securities
Registrar. The provisions of Article VIII shall apply to the
Property Trustee in its role as Securities Registrar.
(b) Upon surrender for registration of transfer of any
Preferred Securities Certificate at the office or agency
maintained pursuant to Section 5.7(f), the Administrative
Trustees or any one of them shall execute by manual or facsimile
signature and deliver to the Property Trustee, and the Property
Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Preferred
Securities Certificates in authorized denominations of a like
aggregate Liquidation Amount as may be required by this Trust
Agreement dated the date of execution by such Administrative
Trustee or Trustees. At the option of a Holder, Preferred
Securities Certificates may be exchanged for other Preferred
Securities Certificates in authorized denominations and of a
like aggregate Liquidation Amount upon surrender of the
Preferred Securities Certificate to be exchanged at the office
or agency maintained pursuant to Section 5.7(f). Whenever any
Preferred Securities Certificates are so surrendered for
exchange, the Administrative Trustees or any one of them shall
execute by manual or facsimile signature and deliver to the
Property Trustee, and the Property Trustee shall authenticate
and deliver, the Preferred Securities Certificates that the
Holder making the exchange is entitled to receive.
(c) The Securities Registrar shall not be required, (i) to
issue, register the transfer of or exchange any Preferred
Security during a period beginning at the opening of business
fifteen (15) days before the day of selection for redemption of
such Preferred Securities pursuant to Article IV and ending at
the close of business on the day of mailing of the notice of
redemption or (ii) to register the transfer of or exchange any
Preferred Security so selected for redemption in whole or in
part, except, in the case of any such Preferred Security to be
redeemed in part, any portion thereof not to be redeemed.
27
(d) Every Preferred Securities Certificate presented or
surrendered for registration of transfer or exchange shall be
duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Securities Registrar duly
executed by the Holder or such Holder's attorney duly authorized
in writing and (i) if such Preferred Securities Certificate is
being transferred to a QIB, accompanied by a certificate of the
transferor substantially in the form set forth as Exhibit E
hereto or (ii) if such Preferred Securities Certificate is being
transferred otherwise than to a QIB, accompanied by a
certificate of the transferee substantially in the form set
forth as Exhibit F hereto.
(e) No service charge shall be made for any registration
of transfer or exchange of Preferred Securities Certificates,
but the Property Trustee on behalf of the Trust may require
payment of a sum sufficient to cover any tax or governmental
charge that may be imposed in connection with any transfer or
exchange of Preferred Securities Certificates.
(f) The Administrative Trustees shall designate an office
or offices or agency or agencies where Preferred Securities
Certificates may be surrendered for registration of transfer or
exchange. The Depositor initially designates the Corporate Trust
Office as its office and agency for such purposes. The
Administrative Trustees shall give prompt written notice to the
Depositor, the Property Trustee and to the Holders of any change
in the location of any such office or agency.
SECTION 5.8. Mutilated, Destroyed, Lost or Stolen Securities
Certificates.
(a) If any mutilated Securities Certificate shall be
surrendered to the Securities Registrar together with such
security or indemnity as may be required by the Securities
Registrar and the Administrative Trustees to save each of them
harmless, the Administrative Trustees, or any one of them, on
behalf of the Trust, shall execute and make available for
delivery in exchange therefor a new Securities Certificate of
like class, tenor and denomination.
(b) If the Securities Registrar shall receive evidence to
its satisfaction of the destruction, loss or theft of any
Securities Certificate and there shall be delivered to the
Securities Registrar and the Administrative Trustees such
security or indemnity as may be required by them to save each of
them harmless, then in the absence of notice that such
Securities Certificate shall have been acquired by a protected
purchaser, the Administrative Trustees, or any one of them, on
behalf of the Trust, shall execute and make available for
delivery, and, with respect to Preferred Securities, the
Property Trustee shall authenticate, in exchange for or in lieu
of any such destroyed, lost or stolen Securities Certificate, a
new Securities Certificate of like class, tenor and
denomination.
(c) In connection with the issuance of any new Securities
Certificate under this Section 5.8, the Administrative Trustees
or the Securities Registrar may require the payment of a sum
sufficient to cover any tax or other governmental charge that
may be imposed in connection therewith.
(d) Any duplicate Securities Certificate issued pursuant
to this Section 5.8 shall constitute conclusive evidence of an
undivided beneficial interest in the assets of the Trust
corresponding to that evidenced by the mutilated, lost, stolen
or destroyed Securities Certificate,
28
as if originally issued, whether or not the lost, stolen or destroyed
Securities Certificate shall be found at any time.
(e) If any such mutilated, destroyed, lost or stolen
Security has become or is about to become due and payable, the
Depositor in its discretion may, instead of issuing a new
Security, pay such Security.
(f) The provisions of this Section 5.8 are exclusive and
shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement of mutilated,
destroyed, lost or stolen Securities Certificates.
SECTION 5.9. Persons Deemed Holders.
The Trustees and the Securities Registrar shall each treat
the Person in whose name any Securities Certificate shall be
registered in the Securities Register as the owner of such
Securities Certificate for the purpose of receiving
Distributions and for all other purposes whatsoever, and none of
the Trustees and the Securities Registrar shall be bound by any
notice to the contrary.
SECTION 5.10. Cancellation.
All Preferred Securities Certificates surrendered for
registration of transfer or exchange or for payment shall, if
surrendered to any Person other than the Property Trustee, be
delivered to the Property Trustee, and any such Preferred
Securities Certificates and Preferred Securities Certificates
surrendered directly to the Property Trustee for any such
purpose shall be promptly canceled by it. The Administrative
Trustees may at any time deliver to the Property Trustee for
cancellation any Preferred Securities Certificates previously
delivered hereunder that the Administrative Trustees may have
acquired in any manner whatsoever, and all Preferred Securities
Certificates so delivered shall be promptly canceled by the
Property Trustee. No Preferred Securities Certificates shall be
executed and delivered in lieu of or in exchange for any
Preferred Securities Certificates canceled as provided in this
Section 5.10, except as expressly permitted by this Trust
Agreement. All canceled Preferred Securities Certificates shall
be disposed of by the Property Trustee in accordance with its
customary practices and the Property Trustee shall deliver to
the Administrative Trustees a certificate of such disposition.
SECTION 5.11. Ownership of Common Securities by Depositor.
(a) On the Closing Date, the Depositor shall acquire, and
thereafter shall retain, beneficial and record ownership of the
Common Securities. Neither the Depositor nor any successor
Holder of the Common Securities may transfer less than all the
Common Securities, and the Depositor or any such successor
Holder may transfer the Common Securities only (i) in connection
with a consolidation or merger of the Depositor into another
Person, or any conveyance, transfer or lease by the Depositor of
its properties and assets substantially as an entirety to any
Person (in which event such Common Securities will be
transferred to such surviving entity, transferee or lessee, as
the case may be), pursuant to Section 8.1 of the Indenture or
(ii) to the Depositor or an Affiliate of the Depositor, in each
such case in compliance with applicable law (including the
Securities Act, and applicable state securities and blue sky
laws). To the fullest extent permitted by law, any attempted
transfer of the Common Securities other than as set forth in the
immediately preceding sentence shall be void. The
29
Administrative Trustees shall cause each Common Securities Certificate
issued to the Depositor to contain a legend stating substantially "THIS
CERTIFICATE IS NOT TRANSFERABLE EXCEPT IN COMPLIANCE WITH
APPLICABLE LAW AND SECTION 5.11 OF THE TRUST AGREEMENT."
(b) Any Holder of the Common Securities shall be liable
for the debts and obligations of the Trust in the manner and to
the extent set forth with respect to the Depositor and agrees
that it shall be subject to all liabilities to which the
Depositor may be subject and, prior to becoming such a Holder,
shall deliver to the Administrative Trustees an instrument of
assumption satisfactory to such Trustees.
SECTION 5.12. Restricted Legends.
(a) Each Preferred Security Certificate shall bear a
legend in substantially the following form:
"THIS PREFERRED SECURITY IS A GLOBAL SECURITY WITHIN THE
MEANING OF THE TRUST AGREEMENT HEREINAFTER REFERRED TO AND
IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY
("DTC") OR A NOMINEE OF DTC. THIS PREFERRED 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 TRUST AGREEMENT, AND NO
TRANSFER OF THIS PREFERRED SECURITY (OTHER THAN A TRANSFER
OF THIS PREFERRED 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 PREFERRED SECURITY IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC TO WESBANCO CAPITAL TRUST
II OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY PREFERRED 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 ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE PREFERRED SECURITIES REPRESENTED BY THIS CERTIFICATE
WERE ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), AND SUCH PREFERRED SECURITIES OR
ANY INTEREST THEREIN, MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF ANY
PREFERRED SECURITIES IS
30
HEREBY NOTIFIED THAT THE SELLER OF
THE PREFERRED SECURITIES MAY BE RELYING ON THE EXEMPTION
FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT
PROVIDED BY RULE 144A UNDER THE SECURITIES ACT.
THE HOLDER OF THE PREFERRED SECURITIES REPRESENTED BY THIS
CERTIFICATE AGREES FOR THE BENEFIT OF THE TRUST AND THE
DEPOSITOR THAT (A) SUCH PREFERRED SECURITIES MAY BE
OFFERED, RESOLD OR OTHERWISE TRANSFERRED ONLY (I) TO THE
TRUST, (II) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES
IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (III) 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 THE SECURITY FOR ITS OWN ACCOUNT, OR
FOR THE ACCOUNT OF AN "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, (IV) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR (V) PURSUANT TO AN
EXEMPTION FROM THE SECURITIES ACT, IN EACH CASE IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE
OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION
AND, IN THE CASE OF (III) OR (V), SUBJECT TO THE RIGHT OF
THE TRUST AND THE DEPOSITOR TO REQUIRE AN OPINION OF
COUNSEL AND OTHER INFORMATION SATISFACTORY TO EACH OF THEM
AND (B) THE HOLDER WILL NOTIFY ANY PURCHASER OF ANY
PREFERRED SECURITIES FROM IT OF THE RESALE RESTRICTIONS
REFERRED TO IN (A) ABOVE.
THE PREFERRED SECURITIES WILL BE ISSUED AND MAY BE
TRANSFERRED ONLY IN BLOCKS HAVING AN AGGREGATE LIQUIDATION
AMOUNT OF NOT LESS THAN $100,000. ANY ATTEMPTED TRANSFER OF
PREFERRED SECURITIES, OR ANY INTEREST THEREIN, IN A BLOCK
HAVING AN AGGREGATE LIQUIDATION AMOUNT OF LESS THAN
$100,000 AND MULTIPLES OF $1,000 IN EXCESS THEREOF SHALL BE
DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER. ANY
SUCH PURPORTED TRANSFEREE SHALL BE DEEMED NOT TO BE THE
HOLDER OF SUCH PREFERRED SECURITIES FOR ANY PURPOSE,
INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF PRINCIPAL OF
OR INTEREST ON SUCH PREFERRED SECURITIES, OR ANY INTEREST
THEREIN, AND SUCH PURPORTED TRANSFEREE SHALL BE DEEMED TO
HAVE NO INTEREST WHATSOEVER IN SUCH PREFERRED SECURITIES.
THE HOLDER OF THIS SECURITY, OR ANY INTEREST THEREIN, BY
ITS ACCEPTANCE HEREOF OR THEREOF ALSO AGREES, REPRESENTS
AND WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT, INDIVIDUAL
RETIREMENT ACCOUNT OR OTHER PLAN OR ARRANGEMENT SUBJECT TO
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TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE") (EACH A
"PLAN"), OR AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE "PLAN
ASSETS" BY REASON OF ANY PLAN'S INVESTMENT IN THE ENTITY,
AND NO PERSON INVESTING "PLAN ASSETS" OF ANY PLAN MAY
ACQUIRE OR HOLD THIS PREFERRED SECURITY OR ANY INTEREST
THEREIN. ANY PURCHASER OR HOLDER OF THE PREFERRED
SECURITIES OR ANY INTEREST THEREIN WILL BE DEEMED TO HAVE
REPRESENTED BY ITS PURCHASE AND HOLDING THEREOF THAT IT IS
NOT AN EMPLOYEE BENEFIT PLAN WITHIN THE MEANING OF SECTION
3(3) OF ERISA, OR A PLAN TO WHICH SECTION 4975 OF THE CODE
IS APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF
OF AN EMPLOYEE BENEFIT PLAN OR PLAN, OR ANY OTHER PERSON OR
ENTITY USING THE ASSETS OF ANY EMPLOYEE BENEFIT PLAN OR
PLAN TO FINANCE SUCH PURCHASE.
THIS OBLIGATION IS NOT A DEPOSIT AND IS NOT INSURED BY THE
UNITED STATES OR ANY AGENCY OR FUND OF THE UNITED STATES,
INCLUDING THE FEDERAL DEPOSIT INSURANCE CORPORATION (THE
"FDIC")."
(b) The above legend shall not be removed from any of the
Preferred Securities Certificates unless there is delivered to
the Property Trustee and the Depositor satisfactory evidence,
which may include an opinion of counsel, as may be reasonably
required to ensure that any future transfers thereof may be made
without restriction under the provisions of the Securities Act
and other applicable law. Upon provision of such satisfactory
evidence, one or more of the Administrative Trustees on behalf
of the Trust shall execute and deliver to the Property Trustee,
and the Property Trustee shall deliver, at the written direction
of the Administrative Trustees and the Depositor, Preferred
Securities Certificates that do not bear the legend.
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SECTION 5.13. Form of Certificate of Authentication.
The Property Trustee's certificate of authentication shall
be in substantially the following form:
This is one of the Preferred Securities referred to in the
within-mentioned Trust Agreement.
Dated: The Bank of New York, not in
its individual capacity, but
solely as Property Trustee
By:
_______________________
Authorized officer
ARTICLE VI.
MEETINGS; VOTING; ACTS OF HOLDERS
SECTION 6.1. Notice of Meetings.
Notice of all meetings of the Holders of the Preferred
Securities, stating the time, place and purpose of the meeting,
shall be given by the Property Trustee pursuant to Section 10.8
to each Holder of Preferred Securities, at such Holder's
registered address, at least fifteen (15) days and not more than
ninety (90) days before the meeting. At any such meeting, any
business properly before the meeting may be so considered
whether or not stated in the notice of the meeting. Any
adjourned meeting may be held as adjourned without further
notice.
SECTION 6.2. Meetings of Holders of the Preferred Securities.
(a) No annual meeting of Holders is required to be held.
The Property Trustee, however, shall call a meeting of the
Holders of the Preferred Securities to vote on any matter upon
the written request of the Holders of at least twenty five
percent (25%) in aggregate Liquidation Amount of the Outstanding
Preferred Securities and the Administrative Trustees or the
Property Trustee may, at any time in their discretion, call a
meeting of the Holders of the Preferred Securities to vote on
any matters as to which such Holders are entitled to vote.
(b) The Holders of at least a Majority in Liquidation
Amount of the Preferred Securities, present in person or by
proxy, shall constitute a quorum at any meeting of the Holders
of the Preferred Securities.
(c) If a quorum is present at a meeting, an affirmative
vote by the Holders present, in person or by proxy, holding
Preferred Securities representing at least a Majority in
Liquidation Amount of the Preferred Securities held by the
Holders present, either in person or by proxy, at such meeting
shall constitute the action of the Holders of the Preferred
Securities, unless this Trust Agreement requires a lesser or
greater number of affirmative votes.
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SECTION 6.3. Voting Rights.
Holders shall be entitled to one vote for each $10,000 of
Liquidation Amount represented by their Outstanding Trust
Securities in respect of any matter as to which such Holders are
entitled to vote.
SECTION 6.4. Proxies, Etc.
At any meeting of Holders, any Holder entitled to vote
thereat may vote by proxy, provided, that no proxy shall be
voted at any meeting unless it shall have been placed on file
with the Administrative Trustees, or with such other officer or
agent of the Trust as the Administrative Trustees may direct,
for verification prior to the time at which such vote shall be
taken. Pursuant to a resolution of the Property Trustee, proxies
may be solicited in the name of the Property Trustee or one or
more officers of the Property Trustee. Only Holders of record
shall be entitled to vote. When Trust Securities are held
jointly by several Persons, any one of them may vote at any
meeting in person or by proxy in respect of such Trust
Securities, but if more than one of them shall be present at
such meeting in person or by proxy, and such joint owners or
their proxies so present disagree as to any vote to be cast,
such vote shall not be received in respect of such Trust
Securities. A proxy purporting to be executed by or on behalf of
a Holder shall be deemed valid unless challenged at or prior to
its exercise, and the burden of proving invalidity shall rest on
the challenger. No proxy shall be valid more than three years
after its date of execution.
SECTION 6.5. Holder Action by Written Consent.
Any action that may be taken by Holders at a meeting may be
taken without a meeting and without prior notice if Holders
holding at least a Majority in Liquidation Amount of all
Preferred Securities entitled to vote in respect of such action
(or such lesser or greater proportion thereof as shall be
required by any other provision of this Trust Agreement) shall
consent to the action in writing; provided, that notice of such
action is promptly provided to the Holders of Preferred
Securities that did not consent to such action. Any action that
may be taken by the Holders of all the Common Securities may be
taken without a meeting and without prior notice if such Holders
shall consent to the action in writing.
SECTION 6.6. Record Date for Voting and Other Purposes.
Except as provided in Section 6.10(a), for the purposes of
determining the Holders who are entitled to notice of and to
vote at any meeting or to act by written consent, or to
participate in any distribution on the Trust Securities in
respect of which a record date is not otherwise provided for in
this Trust Agreement, or for the purpose of any other action,
the Administrative Trustees may from time to time fix a date,
not more than ninety (90) days prior to the date of any meeting
of Holders or the payment of a Distribution or other action, as
the case may be, as a record date for the determination of the
identity of the Holders of record for such purposes.
SECTION 6.7. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this
Trust Agreement to be given, made or taken by Holders may
34
be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or
by an agent thereof duly appointed in writing; and, except as
otherwise expressly provided herein, such action shall become
effective when such instrument or instruments are delivered to
an Administrative Trustee. Such instrument or instruments (and
the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such
instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Trust Agreement and
conclusive in favor of the Trustees, if made in the manner
provided in this Section 6.7.
(b) The fact and date of the execution by any Person of
any such instrument or writing may be proved by the affidavit of
a witness of such execution or by a certificate of a notary
public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution
thereof. Where such execution is by a signer acting in a
capacity other than such signer's individual capacity, such
certificate or affidavit shall also constitute sufficient proof
of such signer's authority. The fact and date of the execution
of any such instrument or writing, or the authority of the
Person executing the same, may also be proved in any other
manner that any Trustee receiving the same deems sufficient.
(c) The ownership of Trust Securities shall be proved by
the Securities Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Trust Security
shall bind every future Holder of the same Trust Security and
the Holder of every Trust Security issued upon the registration
of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by
the Trustees, the Administrative Trustees or the Trust in
reliance thereon, whether or not notation of such action is made
upon such Trust Security.
(e) Without limiting the foregoing, a Holder entitled
hereunder to take any action hereunder with regard to any
particular Trust Security may do so with regard to all or any
part of the Liquidation Amount of such Trust Security or by one
or more duly appointed agents each of which may do so pursuant
to such appointment with regard to all or any part of such
Liquidation Amount.
(f) If any dispute shall arise among the Holders or the
Trustees with respect to the authenticity, validity or binding
nature of any request, demand, authorization, direction, notice,
consent, waiver or other Act of such Holder or Trustee under
this Article VI, then the determination of such matter by the
Property Trustee shall be conclusive with respect to such
matter.
SECTION 6.8. Inspection of Records.
Upon reasonable written notice to the Administrative
Trustees and the Property Trustee, the records of the Trust
shall be open to inspection by any Holder during normal business
hours for any purpose reasonably related to such Holder's
interest as a Holder.
35
SECTION 6.9. Limitations on Voting Rights.
(a) Except as expressly provided in this Trust Agreement
and in the Indenture and as otherwise required by law, no Holder
of Preferred Securities shall have any right to vote or in any
manner otherwise control the administration, operation and
management of the Trust or the obligations of the parties
hereto, nor shall anything herein set forth, or contained in the
terms of the Securities Certificates, be construed so as to
constitute the Holders from time to time as partners or members
of an association.
(b) So long as any Notes are held by the Property Trustee
on behalf of the Trust, the Property Trustee shall not
(i) direct the time, method and place of conducting any
proceeding for any remedy available to the Note Trustee, or
exercise any trust or power conferred on the Property Trustee
with respect to the Notes, (ii) waive any past default that may
be waived under Section 5.13 of the Indenture, (iii) exercise
any right to rescind or annul a declaration that the principal
of all the Notes shall be due and payable or (iv) consent to any
amendment, modification or termination of the Indenture or the
Notes, where such consent shall be required, without, in each
case, obtaining the prior approval of the Holders of at least a
Majority in Liquidation Amount of the Preferred Securities;
provided, that where a consent under the Indenture would require
the consent of each holder of Notes (or each Holder of Preferred
Securities) affected thereby, no such consent shall be given by
the Property Trustee without the prior written consent of each
Holder of Preferred Securities. The Property Trustee shall not
revoke any action previously authorized or approved by a vote of
the Holders of the Preferred Securities, except by a subsequent
vote of the Holders of the Preferred Securities. In addition to
obtaining the foregoing approvals of the Holders of the
Preferred Securities, prior to taking any of the foregoing
actions, the Property Trustee shall, at the expense of the
Depositor, obtain an Opinion of Counsel experienced in such
matters to the effect that such action shall not cause the Trust
to be taxable as a corporation or classified as other than a
grantor trust for United States federal income tax purposes.
(c) If any proposed amendment to the Trust Agreement
provides for, or the Trustees otherwise propose to effect,
(i) any action that would adversely affect in any material
respect the powers, preferences or special rights of the
Preferred Securities, whether by way of amendment to the Trust
Agreement or otherwise or (ii) the dissolution, winding-up or
termination of the Trust, other than pursuant to the terms of
this Trust Agreement, then the Holders of Outstanding Preferred
Securities as a class will be entitled to vote on such amendment
or proposal and such amendment or proposal shall not be
effective except with the approval of the Holders of at least a
Majority in Liquidation Amount of the Preferred Securities.
Notwithstanding any other provision of this Trust Agreement, no
amendment to this Trust Agreement may be made if, as a result of
such amendment, it would cause the Trust to be taxable as a
corporation or classified as other than a grantor trust for
United States federal income tax purposes.
SECTION 6.10. Acceleration of Maturity; Rescission of
Annulment; Waivers of Past Defaults.
(a) For so long as any Preferred Securities remain
Outstanding, if, upon a Note Event of Default, the Note Trustee
fails or the holders of not less than twenty five percent (25%)
in principal amount of the outstanding Notes fail to declare the
principal of all of the Notes to be
36
immediately due and payable, the Holders of at least twenty five
percent (25%) in Liquidation Amount of the Preferred Securities then
Outstanding shall have the right to make such declaration by a notice
in writing to the Property Trustee, the Depositor and the Note Trustee.
At any time after a declaration of acceleration with respect to the
Notes has been made and before a judgment or decree for payment
of the money due has been obtained by the Note Trustee as
provided in the Indenture, the Holders of at least a Majority in
Liquidation Amount of the Preferred Securities, by written
notice to the Property Trustee, the Depositor and the Note
Trustee, may rescind and annul such declaration and its
consequences if:
(i) the Depositor has paid or deposited with the Note
Trustee a sum sufficient to pay:
(A) all overdue installments of interest on all
of the Notes;
(B) any accrued Additional Interest on all of
the Notes;
(C) the principal of and any premium on any
Notes that have become due otherwise than by such
declaration of acceleration and interest and
Additional Interest thereon at the rate borne by the
Notes; and
(D) all sums paid or advanced by the Note
Trustee under the Indenture and the reasonable
compensation, expenses, disbursements and advances of
the Note Trustee, the Property Trustee and their
agents and counsel; and
(ii) all Note Events of Default, other than the non-
payment of the principal of the Notes that has become due
solely by such acceleration, have been cured or waived as
provided in Section 5.13 of the Indenture.
Upon receipt by the Property Trustee of written notice
requesting such an acceleration, or rescission and annulment
thereof, by Holders of any part of the Preferred Securities, a
record date shall be established for determining Holders of
Outstanding Preferred Securities entitled to join in such
notice, which record date shall be at the close of business on
the day the Property Trustee receives such notice. The Holders
on such record date, or their duly designated proxies, and only
such Persons, shall be entitled to join in such notice, whether
or not such Holders remain Holders after such record date;
provided, that, unless such declaration of acceleration, or
rescission and annulment, as the case may be, shall have become
effective by virtue of the requisite percentage having joined in
such notice prior to the day that is ninety (90) days after such
record date, such notice of declaration of acceleration, or
rescission and annulment, as the case may be, shall
automatically and without further action by any Holder be
canceled and of no further effect. Nothing in this paragraph
shall prevent a Holder, or a proxy of a Holder, from giving,
after expiration of such ninety (90)-day period, a new written
notice of declaration of acceleration, or rescission and
annulment thereof, as the case may be, that is identical to a
written notice that has been canceled pursuant to the proviso to
the preceding sentence, in which event a new record date shall
be established pursuant to the provisions of this
Section 6.10(a).
(b) For so long as any Preferred Securities remain
Outstanding, to the fullest extent permitted by law and subject
to the terms of this Trust Agreement and the Indenture, upon a
Note Event of Default specified in paragraph (a) or (b) of
Section 5.1 of the Indenture, any Holder of
37
Preferred Securities shall have the right to institute a proceeding
directly against the Depositor, pursuant to Section 5.8 of the Indenture,
for enforcement of payment to such Holder of any amounts payable in
respect of Notes having an aggregate principal amount equal to
the aggregate Liquidation Amount of the Preferred Securities of
such Holder. Except as set forth in Section 6.10(a) and this
Section 6.10(b), the Holders of Preferred Securities shall have
no right to exercise directly any right or remedy available to
the holders of, or in respect of, the Notes.
(c) Notwithstanding paragraphs (a) and (b) of this Section
6.10, the Holders of at least a Majority in Liquidation Amount
of the Preferred Securities may, on behalf of the Holders of all
the Preferred Securities, waive any Note Event of Default,
except any Note Event of Default arising from the failure to pay
any principal of or any premium or interest on (including any
Additional Interest) the Notes (unless such Note Event of
Default has been cured and a sum sufficient to pay all matured
installments of interest and all principal and premium on all
Notes due otherwise than by acceleration has been deposited with
the Note Trustee) or a Note Event of Default in respect of a
covenant or provision that under the Indenture cannot be
modified or amended without the consent of the holder of each
outstanding Note. Upon any such waiver, such Note Event of
Default shall cease to exist and any Note Event of Default
arising therefrom shall be deemed to have been cured for every
purpose of the Indenture; but no such waiver shall affect any
subsequent Note Event of Default or impair any right consequent
thereon.
(d) Notwithstanding paragraphs (a) and (b) of this Section
6.10, the Holders of at least a Majority in Liquidation Amount
of the Preferred Securities may, on behalf of the Holders of all
the Preferred 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
Trust Agreement, but no such waiver shall extend to any
subsequent or other Event of Default or impair any right
consequent thereon.
(e) The Holders of a Majority in Liquidation Amount of the
Preferred Securities shall have the right to direct the time,
method and place of conducting any proceeding for any remedy
available to the Property Trustee in respect of this Trust
Agreement or the Notes or exercising any trust or power
conferred upon the Property Trustee under this Trust Agreement;
provided, that, subject to Sections 8.5 and 8.7, the Property
Trustee shall have the right to decline to follow any such
direction if the Property Trustee being advised by counsel
determines that the action so directed may not lawfully be
taken, or if the Property Trustee in good faith shall, by an
officer or officers of the Property Trustee, determine that the
proceedings so directed would be illegal or involve it in
personal liability or be unduly prejudicial to the rights of
Holders not party to such direction, and provided, further, that
nothing in this Trust Agreement shall impair the right of the
Property Trustee to take any action deemed proper by the
Property Trustee and which is not inconsistent with such
direction.
38
ARTICLE VII.
REPRESENTATIONS AND WARRANTIES
SECTION 7.1. Representations and Warranties of the Property
Trustee and the Delaware Trustee.
The Property Trustee and the Delaware Trustee, each
severally on behalf of and as to itself, hereby represents and
warrants for the benefit of the Depositor and the Holders that:
(a) the Property Trustee is a New York banking
corporation, duly organized, validly existing and in good
standing under the laws of the State of New York;
(b) the Property Trustee has full corporate power,
authority and legal right to execute, deliver and perform
its obligations under this Trust Agreement and has taken
all necessary action to authorize the execution, delivery
and performance by it of this Trust Agreement;
(c) the Delaware Trustee is a Delaware banking
corporation, duly organized, validly existing and in good
standing under the laws of the State of Delaware;
(d) the Delaware Trustee has full corporate power,
authority and legal right to execute, deliver and perform
its obligations under this Trust Agreement and has taken
all necessary action to authorize the execution, delivery
and performance by it of this Trust Agreement;
(e) this Trust Agreement has been duly authorized,
executed and delivered by the Property Trustee and the
Delaware Trustee and constitutes the legal, valid and
binding agreement of each of the Property Trustee and the
Delaware Trustee enforceable against each of them in
accordance with its terms, subject to applicable
bankruptcy, insolvency and similar laws affecting
creditors' rights generally and to general principles of
equity;
(f) the execution, delivery and performance of this
Trust Agreement have been duly authorized by all necessary
corporate or other action on the part of the Property
Trustee and the Delaware Trustee and do not require any
approval of stockholders of the Property Trustee and the
Delaware Trustee and such execution, delivery and
performance will not (i) violate the Articles of
Association or By-laws of the Property Trustee or the
Delaware Trustee or (ii) violate any applicable law,
governmental rule or regulation of the United States or the
State of Delaware, as the case may be, governing the
banking, trust or general powers of the Property Trustee or
the Delaware Trustee or any order, judgment or decree
applicable to the Property Trustee or the Delaware Trustee;
(g) neither the authorization, execution or delivery
by the Property Trustee or the Delaware Trustee of this
Trust Agreement nor the consummation of any of the
transactions by the Property Trustee or the Delaware
Trustee contemplated herein requires the consent or
approval of, the giving of notice to, the registration with
or the taking of any other action with respect to any
governmental authority or agency under
39
any existing law of the United States or the State of Delaware
governing the banking, trust or general powers of the Property
Trustee or Delaware Trustee, as the case may be; and
(h) to the best of each of the Property Trustee's and
the Delaware Trustee's knowledge, there are no proceedings
pending or threatened against or affecting the Property
Trustee or the Delaware Trustee in any court or before any
governmental authority, agency or arbitration board or
tribunal that, individually or in the aggregate, would
materially and adversely affect the Trust or would question
the right, power and authority of the Property Trustee or
the Delaware Trustee, as the case may be, to enter into or
perform its obligations as one of the Trustees under this
Trust Agreement.
SECTION 7.2. Representations and Warranties of Depositor.
The Depositor hereby represents and warrants for the
benefit of the Holders that:
(a) the Depositor is a corporation duly organized,
validly existing and in good standing under the laws of its
state of incorporation;
(b) the Depositor has full corporate power, authority
and legal right to execute, deliver and perform its
obligations under this Trust Agreement and has taken all
necessary action to authorize the execution, delivery and
performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized,
executed and delivered by the Depositor and constitutes the
legal, valid and binding agreement of the Depositor
enforceable against the Depositor in accordance with its
terms, subject to applicable bankruptcy, insolvency and
similar laws affecting creditors' rights generally and to
general principles of equity;
(d) the Securities Certificates issued at the Closing
Date on behalf of the Trust have been duly authorized and
will have been duly and validly executed, issued and
delivered by the applicable Trustees pursuant to the terms
and provisions of, and in accordance with the requirements
of, this Trust Agreement and the Holders will be, as of
such date, entitled to the benefits of this Trust Agreement;
(e) the execution, delivery and performance of this
Trust Agreement have been duly authorized by all necessary
corporate or other action on the part of the Depositor and
do not require any approval of stockholders of the
Depositor and such execution, delivery and performance will
not (i) violate the articles or certificate of
incorporation or by-laws (or other organizational
documents) of the Depositor or (ii) violate any applicable
law, governmental rule or regulation governing the
Depositor or any material portion of its property or any
order, judgment or decree applicable to the Depositor or
any material portion of its property;
(f) neither the authorization, execution or delivery
by the Depositor of this Trust Agreement nor the
consummation of any of the transactions by the Depositor
contemplated herein requires the consent or approval of,
the giving of notice to, the
40
registration with or the taking of any other action
with respect to any governmental authority or agency under
any existing law governing the Depositor or any material
portion of its property; and
(g) there are no proceedings pending or, to the best
of the Depositor's knowledge, threatened against or
affecting the Depositor or any material portion of its
property in any court or before any governmental authority,
agency or arbitration board or tribunal that, individually
or in the aggregate, would materially and adversely affect
the Trust or would question the right, power and authority
of the Depositor, as the case may be, to enter into or
perform its obligations under this Trust Agreement.
ARTICLE VIII.
THE TRUSTEES
SECTION 8.1. Number of Trustees.
The number of Trustees shall be five (5); provided, that
the Property Trustee and the Delaware Trustee may be the same
Person, in which case the number of Trustees shall be four (4).
The number of Trustees may be increased or decreased by Act of
the Holder of the Common Securities subject to Sections 8.2,
8.3, and 8.4. The death, resignation, retirement, removal,
bankruptcy, incompetence or incapacity to perform the duties of
a Trustee shall not operate to annul, dissolve or terminate the
Trust.
SECTION 8.2. Property Trustee Required.
There shall at all times be a Property Trustee hereunder
with respect to the Trust Securities. The Property Trustee shall
be a corporation organized and doing business under the laws of
the United States or of any state thereof, authorized to
exercise corporate trust powers, having a combined capital and
surplus of at least fifty million dollars ($50,000,000), subject
to supervision or examination by federal or state authority and
having an office within the United States. If any such Person
publishes reports of condition at least annually pursuant to law
or to the requirements of its supervising or examining
authority, then for the purposes of this Section 8.2, the
combined capital and surplus of such Person shall be deemed to
be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time the
Property Trustee shall cease to be eligible in accordance with
the provisions of this Section 8.2, it shall resign immediately
in the manner and with the effect hereinafter specified in this
Article VIII.
SECTION 8.3. Delaware Trustee Required.
(a) If required by the Delaware Statutory Trust Act, there
shall at all times be a Delaware Trustee with respect to the
Trust Securities. The Delaware Trustee shall either be (i) a
natural person who is at least 21 years of age and a resident of
the State of Delaware or (ii) a legal entity that has its
principal place of business in the State of Delaware, otherwise
meets the requirements of applicable Delaware law and shall act
through one or more persons authorized to
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bind such entity. If at any time the Delaware Trustee shall cease
to be eligible in accordance with the provisions of this Section 8.3,
it shall resign immediately in the manner and with the effect
hereinafter specified in this Article VIII.
(b) The Delaware Trustee shall not be entitled to exercise
any powers, nor shall the Delaware Trustee have any of the
duties and responsibilities, of the Property Trustee or the
Administrative Trustees set forth herein. The Delaware Trustee
shall be one of the trustees of the Trust for the sole and
limited purpose of fulfilling the requirements of Section 3807
of the Delaware Statutory Trust Act and for taking such actions
as are required to be taken by a Delaware trustee under the
Delaware Statutory Trust Act. The duties (including fiduciary
duties), liabilities and obligations of the Delaware Trustee
shall be limited to (a) accepting legal process served on the
Trust in the State of Delaware and (b) the execution of any
certificates required to be filed with the Secretary of State of
the State of Delaware that the Delaware Trustee is required to
execute under Section 3811 of the Delaware Statutory Trust Act
and there shall be no other duties (including fiduciary duties)
or obligations, express or implied, at law or in equity, of the
Delaware Trustee.
SECTION 8.4. Appointment of Administrative Trustees.
(a) There shall at all times be one or more Administrative
Trustees hereunder with respect to the Trust Securities. Each
Administrative Trustee shall be either a natural person who is
at least 21 years of age or a legal entity that shall act
through one or more persons authorized to bind that entity.
Each of the individuals identified as an "Administrative
Trustee" in the preamble of this Trust Agreement hereby accepts
his or her appointment as such.
(b) Except where a requirement for action by a specific
number of Administrative Trustees is expressly set forth in this
Trust Agreement, any act required or permitted to be taken by,
and any power of the Administrative Trustees may be exercised
by, or with the consent of, any one such Administrative Trustee.
Whenever a vacancy in the number of Administrative Trustees
shall occur, until such vacancy is filled by the appointment of
an Administrative Trustee in accordance with Section 8.11, the
Administrative Trustees in office, regardless of their number
(and notwithstanding any other provision of this Trust
Agreement), shall have all the powers granted to the
Administrative Trustees and shall discharge all the duties
imposed upon the Administrative Trustees by this Trust
Agreement.
SECTION 8.5. Duties and Responsibilities of the Trustees.
(a) The rights, immunities, duties and responsibilities of
the Trustees shall be as provided by this Trust Agreement and
there shall be no other duties (including fiduciary duties) or
obligations, express or implied, at law or in equity, of the
Trustees; provided, however, that if an Event of Default known
to the Property Trustee has occurred and is continuing, the
Property Trustee shall, prior to the receipt of directions, if
any, from the Holders of at least a Majority in Liquidation
Amount of the Preferred Securities, exercise such of the rights
and powers vested in it by the Indenture, and use the same
degree of care and skill in its exercise, as a prudent person
would exercise or use under the circumstances in the conduct of
such person's own affairs. Notwithstanding the foregoing, no
provision of this Trust Agreement shall require any of the
Trustees to expend or risk its own funds or otherwise incur any
financial liability in the
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performance of any of its duties
hereunder, or in the exercise of any of its or their rights or
powers, if it or they shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it.
Whether or not herein expressly so provided, every provision of
this Trust Agreement relating to the conduct or affecting the
liability of or affording protection to the Trustees shall be
subject to the provisions of this Section 8.5. To the extent
that, at law or in equity, a Trustee has duties and liabilities
relating to the Trust or to the Holders, such Trustee shall not
be liable to the Trust or to any Holder for such Trustee's good
faith reliance on the provisions of this Trust Agreement. The
provisions of this Trust Agreement, to the extent that they
restrict the duties and liabilities of the Trustees otherwise
existing at law or in equity, are agreed by the Depositor and
the Holders to replace such other duties and liabilities of the
Trustees.
(b) All payments made by the Property Trustee or a Paying
Agent in respect of the Trust Securities shall be made only from
the revenue and proceeds from the Trust Property and only to the
extent that there shall be sufficient revenue or proceeds from
the Trust Property to enable the Property Trustee or a Paying
Agent to make payments in accordance with the terms hereof. Each
Holder, by its acceptance of a Trust Security, agrees that it
will look solely to the revenue and proceeds from the Trust
Property to the extent legally available for distribution to it
as herein provided and that the Trustees are not personally
liable to it for any amount distributable in respect of any
Trust Security or for any other liability in respect of any
Trust Security. This Section 8.5(b) does not limit the liability
of the Trustees expressly set forth elsewhere in this Trust
Agreement.
(c) No provisions of this Trust Agreement shall be
construed to relieve the Property Trustee from liability with
respect to matters that are within the authority of the Property
Trustee under this Trust Agreement for its own negligent action,
negligent failure to act or willful misconduct, except that:
(i) the Property Trustee shall not be liable for any
error or judgment made in good faith by an authorized
officer of the Property Trustee, unless it shall be proved
that the Property Trustee was negligent in ascertaining the
pertinent facts;
(ii) the Property Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in
good faith in accordance with the direction of the Holders
of at least a Majority in Liquidation Amount of the
Preferred Securities relating to the time, method and place
of conducting any proceeding for any remedy available to
the Property Trustee hereunder or under the Indenture, or
exercising any trust or power conferred upon the Property
Trustee under this Trust Agreement;
(iii) the Property Trustee's sole duty with respect to
the custody, safe keeping and physical preservation of the
Notes and the Payment Account shall be to deal with such
Property in a similar manner as the Property Trustee deals
with similar property for its own account, subject to the
protections and limitations on liability afforded to the
Property Trustee under this Trust Agreement;
(iv) the Property Trustee shall not be liable for any
interest on any money received by it except as it may
otherwise agree with the Depositor; and money held by
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the Property Trustee need not be segregated from other funds
held by it except in relation to the Payment Account
maintained by the Property Trustee pursuant to Section 3.1
and except to the extent otherwise required by law; and
(v) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrative Trustees or
the Depositor with their respective duties under this Trust
Agreement, nor shall the Property Trustee be liable for the
default or misconduct of any other Trustee or the
Depositor.
SECTION 8.6. Notices of Defaults and Extensions.
(a) Within ninety (90) days after the occurrence of a
default actually known to the Property Trustee, the Property
Trustee shall transmit notice of such default to the Holders,
the Administrative Trustees and the Depositor, unless such
default shall have been cured or waived; provided, that, except
in the case of a default in the payment of the principal of or
any premium or interest (including any Additional Interest) on
any Trust Security, the Property Trustee shall be fully
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 Property Trustee in
good faith determines that the withholding of such notice is in
the interests of the Holders of the Trust Securities. For the
purpose of this Section 8.6, the term "default" means any event
that is, or after notice or lapse of time or both would become,
an Event of Default.
(b) Within five (5) Business Days after the receipt of
notice of the Depositor's exercise of its right to defer the
payment of interest on the Notes pursuant to the Indenture, the
Property Trustee shall transmit, in the manner and to the extent
provided in Section 10.8, notice of such exercise to the Holders
and the Administrative Trustees, unless such exercise shall have
been revoked.
(c) The Property Trustee shall not be deemed to have
knowledge of any Event of Default unless the Property Trustee
shall have received written notice thereof from the Depositor,
any Administrative Trustee or any Holder or unless an officer of
the Property Trustee charged with the administration of this
Trust Agreement shall have obtained actual knowledge of such
Event of Default.
(d) The Property Trustee shall notify all Holders of the
Preferred Securities of any notice of default received with
respect to the Notes.
SECTION 8.7. Certain Rights of Property Trustee.
Subject to the provisions of Section 8.5:
(a) the Property Trustee may conclusively rely and
shall be protected in acting or refraining from acting in
good faith and in accordance with the terms hereof upon any
resolution, Opinion of Counsel, certificate, written
representation of a Holder or transferee, certificate of
auditors or any other resolution, certificate, statement,
instrument, opinion, report, notice, request, direction,
consent, order, appraisal, bond, debenture, note, other
evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or
presented by the proper party or parties;
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(b) if (i) in performing its duties under this Trust
Agreement the Property Trustee is required to decide
between alternative courses of action, (ii) in construing
any of the provisions of this Trust Agreement the Property
Trustee finds a provision ambiguous or inconsistent with
any other provisions contained herein or (iii) the Property
Trustee is unsure of the application of any provision of
this Trust Agreement, then, except as to any matter as to
which the Holders of the Preferred Securities are entitled
to vote under the terms of this Trust Agreement, the
Property Trustee shall deliver a notice to the Depositor
requesting the Depositor's written instruction as to the
course of action to be taken and the Property Trustee shall
take such action, or refrain from taking such action, as
the Property Trustee shall be instructed in writing to
take, or to refrain from taking, by the Depositor;
provided, that if the Property Trustee does not receive
such instructions of the Depositor within ten (10) Business
Days after it has delivered such notice or such reasonably
shorter period of time set forth in such notice, the
Property Trustee may, but shall be under no duty to, take
such action, or refrain from taking such action, as the
Property Trustee shall deem advisable and in the best
interests of the Holders, in which event the Property
Trustee shall have no liability except for its own
negligence, bad faith or willful misconduct;
(c) any direction or act of the Depositor
contemplated by this Trust Agreement shall be sufficiently
evidenced by an Officers' Certificate unless otherwise
expressly provided herein;
(d) any direction or act of an Administrative Trustee
contemplated by this Trust Agreement shall be sufficiently
evidenced by a certificate executed by such Administrative
Trustee and setting forth such direction or act;
(e) the Property Trustee shall have no duty to see to
any recording, filing or registration of any instrument
(including any financing or continuation statement or any
filing under tax or securities laws) or any re-recording,
re-filing or re-registration thereof;
(f) the Property Trustee may consult with counsel
(which counsel may be counsel to the Property Trustee, the
Depositor or any of its Affiliates, and may include any of
its employees) and the advice of such counsel shall be full
and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon and in accordance with such
advice; the Property Trustee shall have the right at any
time to seek instructions concerning the administration of
this Trust Agreement from any court of competent
jurisdiction;
(g) the Property Trustee shall be under no obligation
to exercise any of the rights or powers vested in it by
this Trust Agreement at the request or direction of any of
the Holders pursuant to this Trust Agreement, unless such
Holders shall have offered to the Property Trustee
reasonable security or indemnity against the costs,
expenses (including reasonable attorneys' fees and
expenses) and liabilities that might be incurred by it in
compliance with such request or direction, including
reasonable advances as may be requested by the Property
Trustee;
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(h) the Property Trustee shall not be bound to make
any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order,
approval, bond, debenture, note or other evidence of
indebtedness or other paper or document, unless requested
in writing to do so by one or more Holders, but the
Property Trustee may make such further inquiry or
investigation into such facts or matters as it may see fit,
and, if the Property Trustee shall determine to make such
inquiry or investigation, it shall be entitled to examine
the books, records and premises of the Depositor,
personally or by agent or attorney;
(i) the Property Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder
either directly or by or through its agents, attorneys,
custodians or nominees and the Property Trustee shall not
be responsible for any negligence or misconduct on the part
of any such agent, attorney, custodian or nominee appointed
with due care by it hereunder;
(j) whenever in the administration of this Trust
Agreement the Property Trustee shall deem it desirable to
receive instructions with respect to enforcing any remedy
or right hereunder, the Property Trustee (i) may request
instructions from the Holders (which instructions may only
be given by the Holders of the same proportion in
Liquidation Amount of the Trust Securities as would be
entitled to direct the Property Trustee under this Trust
Agreement in respect of such remedy, right or action),
(ii) may refrain from enforcing such remedy or right or
taking such other action until such instructions are
received and (iii) shall be protected in acting in
accordance with such instructions;
(k) except as otherwise expressly provided by this
Trust Agreement, the Property Trustee shall not be under
any obligation to take any action that is discretionary
under the provisions of this Trust Agreement;
(l) without prejudice to any other rights available
to the Property Trustee under applicable law, when the
Property Trustee incurs expenses or renders services in
connection with a Bankruptcy Event, such expenses
(including legal fees and expenses of its agents and
counsel) and the compensation for such services are
intended to constitute expenses of administration under any
bankruptcy law or law relating to creditors rights
generally; and
(m) whenever in the administration of this Trust
Agreement the Property Trustee shall deem it desirable that
a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Property
Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part,
request and rely on an Officers' Certificate which, upon
receipt of such request, shall be promptly delivered by the
Depositor.
No provision of this Trust Agreement shall be deemed to
impose any duty or obligation on any 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 such
46
Person 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.
SECTION 8.8. Delegation of Power.
Any Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the
age of 21 its, his or her power for the purpose of executing any
documents contemplated in Section 2.5. The Trustees shall have
power to delegate from time to time to such of their number or
to the Depositor the doing of such things and the execution of
such instruments either in the name of the Trust or the names of
the Trustees or otherwise as the Trustees may deem expedient, to
the extent such delegation is not prohibited by applicable law
or contrary to the provisions of this Trust Agreement.
SECTION 8.9. May Hold Securities.
Any Trustee or any other agent of any Trustee or the Trust,
in its individual or any other capacity, may become the owner or
pledgee of Trust Securities and except as provided in the
definition of the term "Outstanding" in Article I, may otherwise
deal with the Trust with the same rights it would have if it
were not an Trustee or such other agent.
SECTION 8.10. Compensation; Reimbursement; Indemnity.
The Depositor agrees:
(a) to pay to the Trustees from time to time such
reasonable compensation for all services rendered by them
hereunder as may be agreed by the Depositor and the
Trustees from time to time (which compensation shall not be
limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(b) to reimburse the Trustees upon request for all
reasonable expenses, disbursements and advances incurred or
made by the Trustees in accordance with any provision of
this Trust Agreement (including the reasonable compensation
and the expenses and disbursements of their agents and
counsel), except any such expense, disbursement or advance
as may be attributable to their gross negligence, bad faith
or willful misconduct; and
(c) to the fullest extent permitted by applicable
law, to indemnify and hold harmless (i) each Trustee, (ii)
any Affiliate of any Trustee, (iii) any officer, director,
shareholder, employee, representative or agent of any
Trustee or any Affiliate of any Trustee and (iv) any
employee or agent of the Trust (referred to herein as an
"Indemnified Person") from and against any loss, damage,
liability, tax (other than income, franchise or other taxes
imposed on amounts paid pursuant to Section 8.10(a) or (b)
hereof), penalty, expense or claim of any kind or nature
whatsoever incurred without negligence, bad faith or
willful misconduct on its part, arising out of or in
connection with the acceptance or administration of the
Trust hereunder, including the advancement of funds to
cover the reasonable costs and expenses of defending itself
against any claim or liability in connection with the
exercise or performance of any of its powers or duties
hereunder.
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The Trust shall have no payment, reimbursement or indemnity
obligations to the Trustees under this Section 8.10. The
provisions of this Section 8.10 shall survive the termination of
this Trust Agreement and the earlier removal or resignation of
any Trustee.
No Trustee may claim any Lien on any Trust Property whether
before or after termination of the Trust as a result of any
amount due pursuant to this Section 8.10.
In no event shall the Property Trustee and the Delaware
Trustee be liable for any indirect, special, punitive or
consequential loss or damage of any kind whatsoever, including,
but not limited to, lost profits, even if the Trustee has been
advised of the likelihood of such loss or damage and regardless
of the form of action.
In no event shall the Property Trustee and the Delaware
Trustee be liable for any failure or delay in the performance of
its obligations hereunder because of circumstances beyond its
control, including, but not limited to, acts of God, flood, war
(whether declared or undeclared), terrorism, fire, riot,
embargo, government action, including any laws, ordinances,
regulations, governmental action or the like which delay,
restrict or prohibit the providing of the services contemplated
by this Trust Agreement.
SECTION 8.11. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of any Trustee and no
appointment of a successor Trustee pursuant to this Article VIII
shall become effective until the acceptance of appointment by
the successor Trustee in accordance with the applicable
requirements of Section 8.12.
(b) A Trustee may resign at any time by giving written
notice thereof to the Depositor and, in the case of the Property
Trustee and the Delaware Trustee, to the Holders.
(c) Unless an Event of Default shall have occurred and be
continuing, the Property Trustee or the Delaware Trustee, or
both of them, may be removed (with or without cause) at any time
by Act of the Holder of Common Securities. If an Event of
Default shall have occurred and be continuing, the Property
Trustee or the Delaware Trustee, or both of them, may be removed
(with or without cause) at such time by Act of the Holders of at
least a Majority in Liquidation Amount of the Preferred
Securities, delivered to the removed Trustee (in its individual
capacity and on behalf of the Trust). An Administrative Trustee
may be removed (with or without cause) only by Act of the Holder
of the Common Securities at any time.
(d) If any Trustee shall resign, be removed or become
incapable of acting as Trustee, or if a vacancy shall occur in
the office of any Trustee for any reason, at a time when no
Event of Default shall have occurred and be continuing, the
Holder of the Common Securities, by Act of the Holder of the
Common Securities, shall promptly appoint a successor Trustee or
Trustees, and such successor Trustee and the retiring Trustee
shall comply with the applicable requirements of Section 8.12.
If the Property Trustee or the Delaware Trustee shall resign, be
removed or become incapable of continuing to act as the Property
Trustee or the Delaware Trustee, as the case may be, at a time
when an Event of Default shall have occurred and be continuing,
the Holders of the Preferred Securities, by Act of the Holders
of a Majority in Liquidation Amount of the Preferred Securities,
shall promptly appoint a successor Property Trustee or Delaware
Trustee, and such successor Property Trustee or Delaware Trustee
and the
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retiring Property Trustee or Delaware Trustee shall
comply with the applicable requirements of Section 8.12. If an
Administrative Trustee shall resign, be removed or become
incapable of acting as Administrative Trustee, at a time when an
Event of Default shall have occurred and be continuing, the
Holder of the Common Securities by Act of the Holder of Common
Securities shall promptly appoint a successor Administrative
Trustee and such successor Administrative Trustee and the
retiring Administrative Trustee shall comply with the applicable
requirements of Section 8.12. If no successor Trustee shall
have been so appointed by the Holder of the Common Securities or
Holders of the Preferred Securities, as the case may be, and
accepted appointment in the manner required by Section 8.12
within thirty (30) days after the giving of a notice of
resignation by a Trustee, the removal of a Trustee, or a Trustee
becoming incapable of acting as such Trustee, any Holder who has
been a Holder of Preferred Securities for at least six (6)
months may, on behalf of himself and all others similarly
situated, and any resigning Trustee may, in each case, at the
expense of the Depositor, petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(e) The Depositor shall give notice of each resignation
and each removal of the Property Trustee or the Delaware Trustee
and each appointment of a successor Property Trustee or Delaware
Trustee to all Holders in the manner provided in Section 10.8.
Each notice shall include the name of the successor Property
Trustee or Delaware Trustee and the address of its Corporate
Trust Office if it is the Property Trustee.
(f) Notwithstanding the foregoing or any other provision
of this Trust Agreement, in the event any Administrative Trustee
or a Delaware Trustee who is a natural person dies or becomes,
in the opinion of the Holder of Common Securities, incompetent
or incapacitated, the vacancy created by such death,
incompetence or incapacity may be filled by (i) the unanimous
act of the remaining Administrative Trustees if there are at
least two of them or (ii) otherwise by the Holder of the Common
Securities (with the successor in each case being a Person who
satisfies the eligibility requirement for Administrative
Trustees or Delaware Trustee, as the case may be, set forth in
Sections 8.3 and 8.4).
(g) Upon the appointment of a successor Delaware Trustee,
such successor Delaware Trustee shall file a Certificate of
Amendment to the Certificate of Trust in accordance with Section
3810 of the Delaware Statutory Trust Act.
SECTION 8.12. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Trustee, each successor Trustee shall execute and deliver to the
Depositor and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of
the retiring Trustee shall become effective and each such
successor Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on request of the Trust or
any successor Trustee such retiring Trustee shall, upon payment
of its charges, duly assign, transfer and deliver to such
successor Trustee all Trust Property, all proceeds thereof and
money held by such retiring Trustee hereunder with respect to
the Trust Securities and the Trust.
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(b) Upon request of any such successor Trustee, the Trust
(or the retiring Trustee if requested by the Depositor) shall
execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such
rights, powers and trusts referred to in the preceding
paragraph.
(c) No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee
shall be qualified and eligible under this Article VIII.
SECTION 8.13. Merger, Conversion, Consolidation or Succession to
Business.
Any Person into which the Property Trustee or the Delaware
Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger,
conversion or consolidation to which such Trustee shall be a
party, or any Person succeeding to all or substantially all the
corporate trust business of such Trustee, shall be the successor
of such Trustee hereunder, without the execution or filing of
any paper or any further act on the part of any of the parties
hereto, provided, that such Person shall be otherwise qualified
and eligible under this Article VIII.
SECTION 8.14. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities
Certificates shall be taken as the statements of the Trust and
the Depositor, and the Trustees do not assume any responsibility
for their correctness. The Trustees make no representations as
to the title to, or value or condition of, the property of the
Trust or any part thereof, nor as to the validity or sufficiency
of this Trust Agreement, the Notes or the Trust Securities. The
Trustees shall not be accountable for the use or application by
the Depositor of the proceeds of the Notes.
SECTION 8.15. Property Trustee May File Proofs of Claim.
(a) In case of any Bankruptcy Event (or event that with
the passage of time would become a Bankruptcy Event) relative to
the Trust or any other obligor upon the Trust Securities or the
property of the Trust or of such other obligor or their
creditors, the Property Trustee (irrespective of whether any
Distributions on the Trust Securities shall then be due and
payable and irrespective of whether the Property Trustee shall
have made any demand on the Trust for the payment of any past
due Distributions) shall be entitled and empowered, to the
fullest extent permitted by law, by intervention in such
proceeding or otherwise:
(i) to file and prove a claim for the whole amount of
any Distributions owing and unpaid in respect of the Trust
Securities and to file such other papers or documents as
may be necessary or advisable in order to have the claims
of the Property Trustee (including any claim for the
reasonable compensation, expenses, disbursements and
advances of the Property Trustee, its agents and counsel)
and of the Holders allowed in such judicial proceeding; and
(ii) to collect and receive any monies or other
property payable or deliverable on any such claims and to
distribute the same;
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and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such proceeding is
hereby authorized by each Holder to make such payments to the
Property Trustee and, in the event the Property Trustee shall
consent to the making of such payments directly to the Holders,
to pay to the Property Trustee first any amount due it for the
reasonable compensation, expenses, disbursements and advances of
the Property Trustee, its agents and counsel, and any other
amounts due the Property Trustee.
(b) Nothing herein contained shall be deemed to authorize
the Property Trustee to authorize or consent to or accept or
adopt on behalf of any Holder any plan of reorganization,
arrangement, adjustment or compensation affecting the Trust
Securities or the rights of any Holder thereof or to authorize
the Property Trustee to vote in respect of the claim of any
Holder in any such proceeding.
SECTION 8.16. Reports to and from the Property Trustee.
(a) The Depositor and the Administrative Trustees shall
deliver to the Property Trustee, not later than forty five (45)
days after the end of each of the first three fiscal quarters of
the Depositor and not later than ninety (90) days after the end
of each fiscal year of the Trust ending after the date of this
Trust Agreement, an Officers' Certificate covering the preceding
fiscal year, stating whether or not to the knowledge of the
signers thereof the Depositor and the Trust are in default in
the performance or observance of any of the terms, provisions
and conditions of this Trust Agreement (without regard to any
period of grace or requirement of notice provided hereunder)
and, if the Depositor or the Trust shall be in default,
specifying all such defaults and the nature and status thereof
of which they have knowledge.
(b) The Depositor shall furnish (i) to the Property
Trustee; (ii) Trapeza Manager, Inc. (at 507 Carew Tower, 441
Vine Street, Cincinnati, OH 45202 or such other address as
designated by Trapeza Manager, Inc.); and (iii) any Owner of the
Preferred Securities reasonably identified to the Depositor and
the Trust (which identification may be made either by such Owner
or by Trapeza Manager, Inc.) a duly completed and executed
certificate in the form attached hereto as Exhibit G, including
the financial statements referenced in such Exhibit, which
certificate and financial statements shall be so furnished by
the Depositor not later than forty five (45) days after the end
of each of the first three fiscal quarters of each fiscal year
of the Depositor and not later than ninety (90) days after the
end of each fiscal year of the Depositor.
The Property Trustee shall obtain all reports, certificate
and information, which it is entitled to obtain under each of
the Operative Documents.
ARTICLE IX.
TERMINATION, LIQUIDATION AND MERGER
SECTION 9.1. Dissolution Upon Expiration Date.
Unless earlier dissolved, the Trust shall automatically
dissolve on June 30, 2038 (the "Expiration Date"), and the Trust
Property shall be liquidated in accordance with Section 9.4.
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SECTION 9.2. Early Termination.
The first to occur of any of the following events is an
"Early Termination Event", upon the occurrence of which the
Trust shall be dissolved:
(a) the occurrence of a Bankruptcy Event in respect
of, or the dissolution or liquidation of, the Depositor, in
its capacity as the Holder of the Common Securities, unless
the Depositor shall have transferred the Common Securities
as provided by Section 5.11, in which case this provision
shall refer instead to any such successor Holder of the
Common Securities;
(b) the written direction to the Property Trustee
from the Holder of the Common Securities at any time to
dissolve the Trust and, after satisfaction of any
liabilities of the Trust as required by applicable law, to
distribute the Notes to Holders in exchange for the
Preferred Securities (which direction is optional and
wholly within the discretion of the Holder of the Common
Securities), provided, that the Holder of the Common
Securities shall have received the prior approval of the
Federal Reserve if then required;
(c) the redemption of all of the Preferred Securities
in connection with the payment at maturity or redemption of
all the Notes; and
(d) the entry of an order for dissolution of the
Trust by a court of competent jurisdiction.
SECTION 9.3. Termination.
The respective obligations and responsibilities of the
Trustees and the Trust shall terminate upon the latest to occur
of the following: (a) the distribution by the Property Trustee
to Holders of all amounts required to be distributed hereunder
upon the liquidation of the Trust pursuant to Section 9.4, or
upon the redemption of all of the Trust Securities pursuant to
Section 4.2; (b) the satisfaction of any expenses owed by the
Trust; and (c) the discharge of all administrative duties of the
Administrative Trustees, including the performance of any tax
reporting obligations with respect to the Trust or the Holders.
SECTION 9.4. Liquidation.
(a) If an Early Termination Event specified in Section
9.2(a), (b) or (d) occurs or upon the Expiration Date, the Trust
shall be liquidated by the Property Trustee as expeditiously as
the Property Trustee shall determine to be possible by
distributing, after satisfaction of liabilities to creditors of
the Trust as provided by applicable law, to each Holder a Like
Amount of Notes, subject to Section 9.4(d). Notice of
liquidation shall be given by the Property Trustee not less than
thirty (30) nor more than sixty (60) days prior to the
Liquidation Date to each Holder of Trust Securities at such
Holder's address appearing in the Securities Register. All such
notices of liquidation shall:
(i) state the Liquidation Date;
52
(ii) state that from and after the Liquidation Date,
the Trust Securities will no longer be deemed to be
Outstanding and (subject to Section 9.4(d)) any Securities
Certificates not surrendered for exchange will be deemed to
represent a Like Amount of Notes; and
(iii) provide such information with respect to the
mechanics by which Holders may exchange Securities
Certificates for Notes, or if Section 9.4(d) applies,
receive a Liquidation Distribution, as the Property Trustee
shall deem appropriate.
(b) Except where Section 9.2(c) or 9.4(d) applies, in
order to effect the liquidation of the Trust and distribution of
the Notes to Holders, the Property Trustee, either itself acting
as exchange agent or through the appointment of a separate
exchange agent, shall establish a record date for such
distribution (which shall not be more than forty five (45) days
prior to the Liquidation Date nor prior to the date on which
notice of such liquidation is given to the Holders) and
establish such procedures as it shall deem appropriate to effect
the distribution of Notes in exchange for the Outstanding
Securities Certificates.
(c) Except where Section 9.2(c) or 9.4(d) applies, after
the Liquidation Date, (i) the Trust Securities will no longer be
deemed to be Outstanding, (ii) certificates representing a Like
Amount of Notes will be issued to Holders of Securities
Certificates, upon surrender of such Certificates to the
exchange agent for exchange, (iii) the Depositor shall use its
best efforts to have the Notes listed on the New York Stock
Exchange or on such other exchange, interdealer quotation system
or self-regulatory organization on which the Preferred
Securities are then listed, if any, (iv) Securities Certificates
not so surrendered for exchange will be deemed to represent a
Like Amount of Notes bearing accrued and unpaid interest in an
amount equal to the accumulated and unpaid Distributions on such
Securities Certificates until such certificates are so
surrendered (and until such certificates are so surrendered, no
payments of interest or principal will be made to Holders of
Securities Certificates with respect to such Notes) and (v) all
rights of Holders holding Trust Securities will cease, except
the right of such Holders to receive Notes upon surrender of
Securities Certificates.
(d) Notwithstanding the other provisions of this
Section 9.4, if distribution of the Notes in the manner provided
herein is determined by the Property Trustee not to be permitted
or practical, the Trust Property shall be liquidated, and the
Trust shall be wound up by the Property Trustee in such manner
as the Property Trustee determines. In such event, Holders will
be entitled to receive out of the assets of the Trust available
for distribution to Holders, after satisfaction of liabilities
to creditors of the Trust as provided by applicable law, an
amount equal to the Liquidation Amount per Trust Security plus
accumulated and unpaid Distributions thereon to the date of
payment (such amount being the "Liquidation Distribution"). If,
upon any such winding up the Liquidation Distribution can be
paid only in part because the Trust has insufficient assets
available to pay in full the aggregate Liquidation Distribution,
then, subject to the next succeeding sentence, the amounts
payable by the Trust on the Trust Securities shall be paid on a
pro rata basis (based upon Liquidation Amounts). The Holder of
the Common Securities will be entitled to receive Liquidation
Distributions upon any such winding up pro rata (based upon
Liquidation Amounts) with Holders of all Trust Securities,
except that, if an Event of Default has occurred and is
continuing, the Preferred Securities shall have a priority over
the Common Securities as provided in Section 4.3.
53
SECTION 9.5. Mergers, Consolidations, Amalgamations or
Replacements of Trust.
The Trust may not merge with or into, consolidate,
amalgamate, or be replaced by, or convey, transfer or lease its
properties and assets substantially as an entirety to, any
Person except pursuant to this Article IX. At the request of the
Holders of the Common Securities, without the consent of the
Holders of the Preferred Securities, the Trust may merge with or
into, consolidate, amalgamate, or be replaced by or convey,
transfer or lease its properties and assets substantially as an
entirety to a trust organized as such under the laws of any
State; provided, that:
(a) such successor entity either (i) expressly
assumes all of the obligations of the Trust under this
Trust Agreement with respect to the Preferred Securities or
(ii) substitutes for the Preferred Securities other
securities having substantially the same terms as the
Preferred Securities (such other Securities, the "Successor
Securities") so long as the Successor Securities have the
same priority as the Preferred Securities with respect to
distributions and payments upon liquidation, redemption and
otherwise;
(b) a trustee of such successor entity possessing
substantially the same powers and duties as the Property
Trustee is appointed to hold the Notes;
(c) if the Preferred Securities or the Notes are
rated, such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not cause
the Preferred Securities or the Notes (including any
Successor Securities) to be downgraded by any nationally
recognized statistical rating organization that then
assigns a rating to the Preferred Securities or the Notes;
(d) the Preferred Securities are listed, or any
Successor Securities will be listed upon notice of
issuance, on any national securities exchange or
interdealer quotation system on which the Preferred
Securities are then listed, if any;
(e) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and privileges of
the Holders of the Preferred Securities (including any
Successor Securities) in any material respect;
(f) such successor entity has a purpose substantially
identical to that of the Trust;
(g) prior to such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease,
the Depositor has received an Opinion of Counsel to the
effect that (i) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and privileges of
the Holders of the Preferred Securities (including any
Successor Securities) in any material respect;
(ii) following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, neither the
Trust nor such successor entity will be required to
register as an "investment company" under the Investment
Company Act and (iii) following such merger, consolidation,
amalgamation, replacement, conveyance, transfer
54
or lease, the Trust (or the successor entity) will continue
to be classified as a grantor trust for U.S. federal income tax
purposes; and
(h) the Depositor or its permitted transferee owns
all of the common securities of such successor entity and
guarantees the obligations of such successor entity under
the Successor Securities at least to the extent provided by
the Guarantee Agreement.
Notwithstanding the foregoing, the Trust shall not, except with
the consent of Holders of all of the Preferred Securities,
consolidate, amalgamate, merge with or into, or be replaced by
or convey, transfer or lease its properties and assets
substantially as an entirety to any other Person or permit any
other entity to consolidate, amalgamate, merge with or into, or
replace, the Trust if such consolidation, amalgamation, merger,
replacement, conveyance, transfer or lease would cause the Trust
or the successor entity to be taxable as a corporation or
classified as other than a grantor trust for United States
federal income tax purposes or cause the Notes to be treated as
other than indebtedness of the Depositor for United States
federal income tax purposes.
ARTICLE X.
MISCELLANEOUS PROVISIONS
SECTION 10.1. Limitation of Rights of Holders.
Except as set forth in Section 9.2, the death, bankruptcy,
termination, dissolution or incapacity of any Person having an
interest, beneficial or otherwise, in Trust Securities shall not
operate to terminate this Trust Agreement, nor annul, dissolve
or terminate the Trust nor entitle the legal representatives or
heirs of such Person or any Holder for such Person, to claim an
accounting, take any action or bring any proceeding in any court
for a partition or winding up of the arrangements contemplated
hereby, nor otherwise affect the rights, obligations and
liabilities of the parties hereto or any of them.
SECTION 10.2. Agreed Tax Treatment of Trust and Trust Securities.
The parties hereto and, by its acceptance or acquisition of
a Trust Security or a beneficial interest therein, the Holder
of, and any Person that acquires a beneficial interest in, such
Trust Security intend and agree to treat the Trust as a grantor
trust for United States federal, state and local tax purposes,
and to treat the Trust Securities (including all payments and
proceeds with respect to such Trust Securities) as undivided
beneficial ownership interests in the Trust Property (and
payments and proceeds therefrom, respectively) for United States
federal, state and local tax purposes. The provisions of this
Trust Agreement shall be interpreted to further this intention
and agreement of the parties.
SECTION 10.3. Amendment.
(a) This Trust Agreement may be amended from time to time
by the Property Trustee, the Administrative Trustees and the
Holder of all the Common Securities, without the consent of any
Holder of the Preferred Securities, (i) to cure any ambiguity,
correct or
55
supplement any provision herein that may be defective
or inconsistent with any other provision herein, or to make any
other provisions with respect to matters or questions arising
under this Trust Agreement, which shall not be inconsistent with
the other provisions of this Trust Agreement, (ii) to modify,
eliminate or add to any provisions of this Trust Agreement to
such extent as shall be necessary to ensure that the Trust will
neither be taxable as a corporation nor be classified as other
than a grantor trust for United States federal income tax
purposes at all times that any Trust Securities are Outstanding
or to ensure that the Notes are treated as indebtedness of the
Depositor for United States federal income tax purposes, or to
ensure that the Trust will not be required to register as an
"investment company" under the Investment Company Act or (iii)
to add to the covenants, restrictions or obligations of the
Depositor; provided, that in the case of clauses (i), (ii) or
(iii), such action shall not adversely affect in any material
respect the interests of any Holder.
(b) Except as provided in Section 10.3(c), any provision
of this Trust Agreement may be amended by the Property Trustee,
the Administrative Trustees and the Holder of all of the Common
Securities and with (i) the consent of Holders of at least a
Majority in Liquidation Amount of the Preferred Securities and
(ii) 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 will not cause
the Trust to be taxable as a corporation or classified as other
than a grantor trust for United States federal income tax
purposes or affect the treatment of the Notes as indebtedness of
the Depositor for United States federal income tax purposes or
affect the Trust's exemption from status (or from any
requirement to register) as an "investment company" under the
Investment Company Act.
(c) Notwithstanding any other provision of this Trust
Agreement, without the consent of each Holder, this Trust
Agreement may not be amended to (i) change the accrual rate,
amount, currency or timing of any Distribution on or the
redemption price of the Trust Securities or otherwise adversely
affect the amount of any Distribution or other payment required
to be made in respect of the Trust Securities as of a specified
date, (ii) restrict or impair the right of a Holder to institute
suit for the enforcement of any such payment on or after such
date, (iii) reduce the percentage of aggregate Liquidation
Amount of Outstanding Preferred Securities, the consent of whose
Holders is required for any such amendment, or the consent of
whose Holders is required for any waiver of compliance with any
provision of this Trust Agreement or of defaults hereunder and
their consequences provided for in this Trust Agreement; (iv)
impair or adversely affect the rights and interests of the
Holders in the Trust Property, or permit the creation of any
Lien on any portion of the Trust Property; or (v) modify the
definition of "Outstanding," this Section 10.3(c), Sections 4.1,
4.2, 4.3, 6.10(e) or Article IX.
(d) Notwithstanding any other provision of this Trust
Agreement, no Trustee shall enter into or consent to any
amendment to this Trust Agreement that would cause the Trust to
be taxable as a corporation or to be classified as other than a
grantor trust for United States federal income tax purposes or
that would cause the Notes to fail or cease to be treated as
indebtedness of the Depositor for United States federal income
tax purposes or that would cause the Trust to fail or cease to
qualify for the exemption from status (or from any requirement
to register) as an "investment company" under the Investment
Company Act.
56
(e) If any amendment to this Trust Agreement is made, the
Administrative Trustees or the Property Trustee shall promptly
provide to the Depositor a copy of such amendment.
(f) No Trustee shall be required to enter into any
amendment to this Trust Agreement that affects its own rights,
duties or immunities under this Trust Agreement. The Trustees
shall be entitled to receive an Opinion of Counsel and an
Officers' Certificate stating that any amendment to this Trust
Agreement is in compliance with this Trust Agreement and all
conditions precedent herein provided for relating to such action
have been met.
(g) No amendment or modification to this Trust Agreement
that adversely affects in any material respect the rights,
duties, liabilities, indemnities or immunities of the Delaware
Trustee hereunder shall be permitted without the prior written
consent of the Delaware Trustee.
SECTION 10.4. Separability.
If any provision in this Trust Agreement or in the
Securities Certificates shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or
impaired thereby, and there shall be deemed substituted for the
provision at issue a valid, legal and enforceable provision as
similar as possible to the provision at issue.
SECTION 10.5. Governing Law.
THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH
OF THE HOLDERS, THE TRUST, THE DEPOSITOR AND THE TRUSTEES WITH
RESPECT TO THIS TRUST AGREEMENT AND THE TRUST SECURITIES SHALL
BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE
LAWS OF THE STATE OF DELAWARE WITHOUT REFERENCE TO ITS CONFLICTS
OF LAWS PROVISIONS.
SECTION 10.6. Successors.
This Trust Agreement shall be binding upon and shall inure
to the benefit of any successor to the Depositor, the Trust and
any Trustee, including any successor by operation of law. Except
in connection with a transaction involving the Depositor that is
permitted under Article VIII of the Indenture and pursuant to
which the assignee agrees in writing to perform the Depositor's
obligations hereunder, the Depositor shall not assign its
obligations hereunder.
SECTION 10.7. Headings.
The Article and Section headings are for convenience only
and shall not affect the construction of this Trust Agreement.
SECTION 10.8. Reports, Notices and Demands.
(a) Any report, notice, demand or other communication that
by any provision of this Trust Agreement is required or
permitted to be given or served to or upon any Holder or the
Depositor may be given or served in writing delivered in person,
or by reputable, overnight
57
courier, by telecopy or by deposit
thereof, first-class postage prepaid, in the United States mail,
addressed, (a) in the case of a Holder of Preferred Securities,
to such Holder as such Holder's name and address may appear on
the Securities Register; and (b) in the case of the Holder of
all the Common Securities or the Depositor, to WesBanco, Inc.,
One Bank Plaza, Wheeling, WV 26003, Attention: Robert H. Young,
or to such other address as may be specified in a written notice
by the Holder of all the Common Securities or the Depositor, as
the case may be, to the Property Trustee. Such report, notice,
demand or other communication to or upon a Holder or the
Depositor shall be deemed to have been given when received in
person, within one (1) Business Day following delivery by
overnight courier, when telecopied with receipt confirmed, or
within three (3) Business Days following delivery by mail,
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.
(b) Any notice, demand or other communication that by any
provision of this Trust Agreement is required or permitted to be
given or served to or upon the Property Trustee, the Delaware
Trustee, the Administrative Trustees or the Trust shall be given
in writing by deposit thereof, first-class postage prepaid, in
the U.S. mail, personal delivery or facsimile transmission,
addressed to such Person as follows: (a) with respect to the
Property Trustee to The Bank of New York, 101 Barclay Street,
New York, New York 10286, Attention: Corporate Trust
Administration, facsimile no. (212) 815-5707; (b) with respect
to the Delaware Trustee, to The Bank of New York (Delaware),
White Clay Center Route 273, Newark, Delaware 19711, Attention:
Corporate Trust Administration, facsimile no.: (302) 283-8279;
(c) with respect to the Administrative Trustees, to them at the
address above for notices to the Depositor, marked "Attention:
Administrative Trustees of WesBanco Capital Trust II", and (d)
with respect to the Trust, to its principal executive office
specified in Section 2.2, with a copy to the Property Trustee.
Such notice, demand or other communication to or upon the Trust,
the Property Trustee or the Administrative Trustees shall be
deemed to have been sufficiently given or made only upon actual
receipt of the writing by the Trust, the Property Trustee or the
Administrative Trustees.
SECTION 10.9. Agreement Not to Petition.
Each of the Trustees and the Depositor agree for the
benefit of the Holders that, until at least one year and one day
after the Trust has been terminated in accordance with Article
IX, they shall not file, or join in the filing of, a petition
against the Trust under any Bankruptcy Law or otherwise join in
the commencement of any proceeding against the Trust under any
Bankruptcy Law. If the Depositor takes action in violation of
this Section 10.9, the Property Trustee agrees, for the benefit
of Holders, that at the expense of the Depositor, it shall file
an answer with the applicable bankruptcy court or otherwise
properly contest the filing of such petition by the Depositor
against the Trust or the commencement of such action and raise
the defense that the Depositor has agreed in writing not to take
such action and should be estopped and precluded therefrom and
such other defenses, if any, as counsel for the Property Trustee
or the Trust may assert.
58
SECTION 10.10. Counterparts. This instrument may be executed
in any number of counterparts, each of which so executed shall
be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
59
IN WITNESS WHEREOF, the parties hereto have executed this Amended
and Restated Trust Agreement as of the day and year first above written.
WESBANCO, INC.,
as Depositor
By: /s/ Robert H. Young
-----------------------
Name: Robert H. Young
Title: Executive Vice President
and Chief Financial Officer
THE BANK OF NEW YORK, as Property THE BANK OF NEW YORK (DELAWARE), as
Trustee Delaware Trustee
By: /s/ Van K. Brown By: /s/ William T. Lewis
--------------------------- -------------------------------
Name: Van K. Brown Name: William T. Lewis
Title: Vice President Title: Sr. Vice President
/s/ Robert H. Young /s/ Paul M. Limbert
- ------------------------------ ----------------------------
Administrative Trustee Administrative Trustee
Name: Robert H. Young Name: Paul M. Limbert
/s/ Brent E. Richmond
- ------------------------------
Administrative Trustee
Name: Brent E. Richmond
CERTIFICATE OF TRUST
OF
WESBANCO CAPITAL TRUST II
This Certificate of Trust of WesBanco Capital Trust II
(the "Trust"), dated June 11, 2003, is being duly executed and
filed on behalf of the Trust by the undersigned, as trustees, to
form a statutory trust under the Delaware Statutory Trust Act
(12 Del. C. 3801 et seq.) (the "Act").
1. Name. The name of the statutory trust formed by
this Certificate of Trust is: WesBanco Capital Trust II.
2. Delaware Trustee. The name and business address
of the trustee of the Trust with its principal place of business
in the State of Delaware are The Bank of New York (Delaware),
White Clay Center, Route 273, Newark, Delaware 19711, Attention:
Corporate Trust Administration.
3. Effective Date. This Certificate of Trust shall
be effective upon its filing with the Secretary of State of the
State of Delaware.
IN WITNESS WHEREOF, the undersigned have duly executed
this Certificate of Trust in accordance with Section 3811(a)(1)
of the Act.
THE BANK OF NEW YORK, not in its
individual capacity, but solely as
Property Trustee
By: /s/ Van K. Brown
______________________________
Name: Van K. Brown
Title: Vice President
THE BANK OF NEW YORK (DELAWARE),
not in its individual capacity, but
solely as Delaware Trustee
By: /s/ William T. Lewis
______________________________
Name: William T. Lewis
Title: Sr. Vice President
A-1
[FORM OF COMMON SECURITIES CERTIFICATE]
THIS COMMON SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS
OR ANY OTHER APPLICABLE SECURITIES LAWS AND MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN
EXEMPTION FROM REGISTRATION. THIS CERTIFICATE IS NOT
TRANSFERABLE EXCEPT IN COMPLIANCE WITH APPLICABLE LAW AND
SECTION 5.11 OF THE TRUST AGREEMENT
Certificate Number Number of Common Securities
C-1 410
Certificate Evidencing Common Securities
of
WesBanco Capital Trust II
Floating Rate Common Securities
(liquidation amount $1,000 per Common Security)
WesBanco Capital Trust II, a statutory trust created under
the laws of the State of Delaware (the "Trust"), hereby
certifies that WesBanco, Inc., a West Virginia corporation (the
"Holder") is the registered owner of Four Hundred and Ten (410)
common securities of the Trust representing undivided common
beneficial interests in the assets of the Trust and designated
the WesBanco Capital Trust II Floating Rate Common Securities
(liquidation amount $1,000 per Common Security) (the "Common
Securities"). Except in accordance with Section 5.11 of the
Trust Agreement (as defined below), the Common Securities are
not transferable and, to the fullest extent permitted by law,
any attempted transfer hereof other than in accordance therewith
shall be void. The designations, rights, privileges,
restrictions, preferences and other terms and provisions of the
Common Securities are set forth in, and this certificate and the
Common Securities represented hereby are issued and shall in all
respects be subject to the terms and provisions of, the Amended
and Restated Trust Agreement of the Trust, dated as of June 19,
2003 as the same may be amended from time to time (the "Trust
Agreement"), among WesBanco, Inc., as Depositor, The Bank of New
York, as Property Trustee, The Bank of New York (Delaware), as
Delaware Trustee, the Administrative Trustees named therein and
the Holders, from time to time, of Trust Securities. The Trust
will furnish a copy of the Trust Agreement to the Holder without
charge upon written request to the Trust at its principal place
of business or registered office.
Upon receipt of this certificate, the Holder is bound by
the Trust Agreement and is entitled to the benefits thereunder.
B-1
This Common Securities Certificate shall be governed by and
construed in accordance with the laws of the State of Delaware.
Terms used but not defined herein have the meanings set
forth in the Trust Agreement.
IN WITNESS WHEREOF, one of the Administrative Trustees of the
Trust has executed on behalf of the Trust this certificate this
19 day of June, 2003.
WESBANCO CAPITAL TRUST II
By: /s/ Robert H. Young
____________________________
Name: Robert H. Young
Administrative Trustee
B-2
[FORM OF PREFERRED SECURITIES CERTIFICATE]
"THIS PREFERRED SECURITY IS A GLOBAL SECURITY WITHIN THE
MEANING OF THE TRUST AGREEMENT HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY ("DTC")
OR A NOMINEE OF DTC. THIS PREFERRED SECURITY IS EXCHANGEABLE
FOR PREFERRED SECURITIES REGISTERED IN THE NAME OF A PERSON
OTHER THAN DTC OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE TRUST AGREEMENT, AND NO TRANSFER OF THIS
PREFERRED SECURITY (OTHER THAN A TRANSFER OF THIS PREFERRED
SECURITY AS A WHOLE BY 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 PREFERRED SECURITY IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC TO WESBANCO CAPITAL TRUST II OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY PREFERRED 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 ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH
AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]
THE PREFERRED SECURITIES REPRESENTED BY THIS CERTIFICATE
WERE ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND SUCH PREFERRED SECURITIES OR ANY INTEREST THEREIN MAY
NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF ANY PREFERRED SECURITIES IS HEREBY NOTIFIED THAT
THE SELLER OF THE PREFERRED SECURITIES MAY BE RELYING ON THE
EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT
PROVIDED BY RULE 144A UNDER THE SECURITIES ACT.
THE HOLDER OF THE PREFERRED SECURITIES REPRESENTED BY THIS
CERTIFICATE AGREES FOR THE BENEFIT OF THE TRUST AND THE
DEPOSITOR THAT (A) SUCH PREFERRED SECURITIES MAY BE OFFERED,
RESOLD OR OTHERWISE TRANSFERRED ONLY (I) TO THE TRUST, (II) TO A
PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (III) 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 THE SECURITY
FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF AN "ACCREDITED
INVESTOR," FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR
FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF
C-1
THE SECURITIES ACT, (IV) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (V) PURSUANT
TO AN EXEMPTION FROM THE SECURITIES ACT, IN EACH CASE IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND, IN
THE CASE OF (III) OR (V), SUBJECT TO THE RIGHT OF THE TRUST AND
THE DEPOSITOR TO REQUIRE AN OPINION OF COUNSEL AND OTHER
INFORMATION SATISFACTORY TO EACH OF THEM AND (B) THE HOLDER WILL
NOTIFY ANY PURCHASER OF ANY PREFERRED SECURITIES FROM IT OF THE
RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.
THE PREFERRED SECURITIES WILL BE ISSUED AND MAY BE
TRANSFERRED ONLY IN BLOCKS HAVING AN AGGREGATE LIQUIDATION
AMOUNT OF NOT LESS THAN $100,000. ANY ATTEMPTED TRANSFER OF
PREFERRED SECURITIES OR ANY INTEREST THEREIN IN A BLOCK HAVING
AN AGGREGATE LIQUIDATION AMOUNT OF LESS THAN $100,000 AND
MULTIPLES OF $1,000 IN EXCESS THEREOF SHALL BE DEEMED TO BE VOID
AND OF NO LEGAL EFFECT WHATSOEVER. ANY SUCH PURPORTED TRANSFEREE
SHALL BE DEEMED NOT TO BE THE HOLDER OF SUCH PREFERRED
SECURITIES FOR ANY PURPOSE, INCLUDING, BUT NOT LIMITED TO, THE
RECEIPT OF PRINCIPAL OF OR INTEREST ON SUCH PREFERRED SECURITIES
OR ANY INTEREST THEREIN, AND SUCH PURPORTED TRANSFEREE SHALL BE
DEEMED TO HAVE NO INTEREST WHATSOEVER IN SUCH PREFERRED
SECURITIES.
THE HOLDER OF THIS SECURITY OR ANY INTEREST THEREIN BY ITS
ACCEPTANCE HEREOF OR THEREOF ALSO AGREES, REPRESENTS AND
WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT, INDIVIDUAL
RETIREMENT ACCOUNT OR OTHER PLAN OR ARRANGEMENT SUBJECT TO TITLE
I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE") (EACH A "PLAN"), OR AN ENTITY
WHOSE UNDERLYING ASSETS INCLUDE "PLAN ASSETS" BY REASON OF ANY
PLAN'S INVESTMENT IN THE ENTITY, AND NO PERSON INVESTING "PLAN
ASSETS" OF ANY PLAN MAY ACQUIRE OR HOLD THIS PREFERRED SECURITY
OR ANY INTEREST THEREIN. ANY PURCHASER OR HOLDER OF THE
PREFERRED SECURITIES OR ANY INTEREST THEREIN WILL BE DEEMED TO
HAVE REPRESENTED BY ITS PURCHASE AND HOLDING THEREOF THAT IT IS
NOT AN EMPLOYEE BENEFIT PLAN WITHIN THE MEANING OF SECTION 3(3)
OF ERISA, OR A PLAN TO WHICH SECTION 4975 OF THE CODE IS
APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF AN
EMPLOYEE BENEFIT PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY
USING THE ASSETS OF ANY EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE
SUCH PURCHASE.
THIS OBLIGATION IS NOT A DEPOSIT AND IS NOT INSURED BY THE
UNITED STATES OR ANY AGENCY OR FUND OF THE UNITED STATES,
INCLUDING THE FEDERAL DEPOSIT INSURANCE CORPORATION (THE
"FDIC").
C-2
Certificate Number Number of Preferred Securities
CUSIP NO.
_______________
Certificate Evidencing Preferred Securities
of
WesBanco Capital Trust II
Floating Rate Preferred Securities
(liquidation amount $1,000 per Preferred Security)
WesBanco Capital Trust II, a statutory trust created under
the laws of the State of Delaware (the "Trust"), hereby
certifies that _____________, a _________ (the "Holder") is the
registered owner of Thirteen Thousand (13,000) Preferred
Securities of the Trust representing an undivided preferred
beneficial interest in the assets of the Trust and designated
the WesBanco Capital Trust II Floating Rate Preferred
Securities, (liquidation amount $1,000 per Preferred Security)
(the "Preferred Securities"). The Preferred Securities are
transferable on the books and records of the Trust, in person or
by a duly authorized attorney, upon surrender of this
certificate duly endorsed and in proper form for transfer as
provided in Section 5.7 of the Trust Agreement (as defined
below). The designations, rights, privileges, restrictions,
preferences and other terms and provisions of the Preferred
Securities are set forth in, and this certificate and the
Preferred Securities represented hereby are issued and shall in
all respects be subject to the terms and provisions of, the
Amended and Restated Trust Agreement of the Trust, dated as of
June 19, 2003, as the same may be amended from time to time (the
"Trust Agreement"), among WesBanco, Inc., as Depositor, The Bank
of New York, as Property Trustee, The Bank of New York
(Delaware), as Delaware Trustee, the Administrative Trustees
named therein and the Holders, from time to time, of Trust
Securities. The Holder is entitled to the benefits of the
Guarantee Agreement entered into by WesBanco, Inc., a West
Virginia corporation, and The Bank of New York, as Guarantee
Trustee, dated as of June 19, 2003, as the same may be amended
from time to time (the "Guarantee Agreement"), to the extent
provided therein. The Trust will furnish a copy of each of the
Trust Agreement and the Guarantee Agreement to the Holder
without charge upon written request to the Property Trustee at
its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by
the Trust Agreement and is entitled to the benefits thereunder.
This Preferred Securities Certificate shall be governed by
and construed in accordance with the laws of the State of Delaware.
C-3
All capitalized terms used but not defined in this
Preferred Securities Certificate are used with the meanings
specified in the Trust Agreement, including the Schedules and
Exhibits thereto.
IN WITNESS WHEREOF, one of the Administrative Trustees of the
Trust has executed on behalf of the Trust this certificate this
__ day of __________, 2003.
WESBANCO CAPITAL TRUST II
By: ____________________________
Name: Robert H. Young
Administrative Trustee
This is one of the Preferred Securities referred to in the
within-mentioned Trust Agreement.
Dated:
The Bank of New York, not in its
individual capacity, but solely as
Property Trustee
By: ________________________
Authorized officer
C-4
[FORM OF REVERSE OF SECURITY]
The Trust promises to pay Distributions from June 19, 2003,
or from the most recent Distribution Date to which Distributions
have been paid or duly provided for, quarterly (subject to
deferral as set forth herein) in arrears on March 30, June 30,
September 30 and December 30 of each year, commencing on
September 30, 2003, at the fixed rate of 5.80% through the
Distribution Date in June 2008, and a variable rate equal to
LIBOR plus 3.15% of the Liquidation Amount of the Preferred
Securities represented by this Preferred Securities Certificate
thereafter.
Distributions on the Trust Securities shall be made by the
Paying Agent from the Payment Account and shall be payable on
each Distribution Date only to the extent that the Trust has
funds then on hand and available in the Payment Account for the
payment of such Distributions.
In the event (and to the extent) that the Depositor
exercises its right under the Indenture to defer the payment of
interest on the Notes, Distributions on the Preferred Securities
shall be deferred.
Under the Indenture, so long as no Note Event of Default
has occurred and is continuing, the Depositor shall have the
right, at any time and from time to time during the term of the
Notes, to defer the payment of interest on the Notes for a
period of up to twenty (20) consecutive quarterly interest
payment periods (each such extended interest payment period, an
"Extension Period"), during which Extension Period no interest
shall be due and payable (except any Additional Tax Sums that
may be due and payable). No interest on the Notes shall be due
and payable during an Extension Period, except at the end
thereof, but each installment of interest that would otherwise
have been due and payable during such Extension Period shall
bear Additional Interest (to the extent payment of such interest
would be legally enforceable) at the fixed rate of 5.80% per
annum through the Distribution Date in June 2008, and a variable
rate, reset quarterly, equal to LIBOR plus 3.15%per annum
thereafter, compounded quarterly, from the dates on which
amounts would have otherwise been due and payable until paid or
until funds for the payment thereof have been made available for
payment. If Distributions are deferred, the deferred
Distributions (including Additional Interest Amounts) shall be
paid on the date that the related Extension Period terminates to
Holders (as defined in the Trust Agreement) of the Trust
Securities as they appear on the books and records of the Trust
on the record date immediately preceding such termination date.
Distributions on the Securities must be paid on the dates
payable (after giving effect to any Extension Period) to the
extent that the Trust has funds available for the payment of
such Distributions in the Payment Account of the Trust. The
Trust's funds available for Distribution to the Holders of the
Preferred Securities will be limited to payments received from
the Depositor. The payment of Distributions out of moneys held
by the Trust is guaranteed by the Depositor pursuant to the
Guarantee Agreement.
During any such Extension Period, the Depositor shall not
(i) declare or pay any dividends or distributions on, or redeem,
purchase, acquire or make a liquidation payment with respect to,
any of the Depositor's capital stock or (ii) make any payment of
principal of or any
C-5
interest or premium on or repay, repurchase
or redeem any debt securities of the Depositor that rank pari
passu in all respects with or junior in interest to the Notes
(other than (a) repurchases, redemptions or other acquisitions
of shares of capital stock of the Depositor in connection with
(1) any employment contract, benefit plan or other similar
arrangement with or for the benefit of any one or more
employees, officers, directors or consultants, (2) a dividend
reinvestment or stockholder stock purchase plan or (3) the
issuance of capital stock of the Depositor (or securities
convertible into or exercisable for such capital stock) as
consideration in an acquisition transaction entered into prior
to the applicable Extension Period, (b) as a result of an
exchange or conversion of any class or series of the Depositor's
capital stock (or any capital stock of a Subsidiary (as defined
in the Indenture) of the Depositor) for any class or series of
the Depositor's capital stock or of any class or series of the
Depositor's indebtedness for any class or series of the
Depositor's capital stock, (c) the purchase of fractional
interests in shares of the Depositor's capital stock pursuant to
the conversion or exchange provisions of such capital stock or
the security being converted or exchanged, (d) any declaration
of a dividend in connection with any Rights Plan (as defined in
the Indenture), the issuance of rights, stock or other property
under any Rights Plan, or the redemption or repurchase of rights
pursuant thereto or (e) any dividend in the form of stock,
warrants, options or other rights where the dividend stock or
the stock issuable upon exercise of such warrants, options or
other rights is the same stock as that on which the dividend is
being paid or ranks pari passu with or junior to such stock).
On each Note Redemption Date, on the stated maturity (or
any date of principal repayment upon early maturity) of the
Notes and on each other date on (or in respect of) which any
principal on the Notes is repaid, the Trust will be required to
redeem a Like Amount of Trust Securities at the Redemption
Price. Under the Indenture, the Notes may be redeemed by the
Depositor on any Interest Payment Date, at the Depositor's
option, on or after June 15, 2008 in whole or in part from time
to time at a redemption price equal to one hundred percent
(100%) of the principal amount thereof or the redeemed portion
thereof, as applicable, together, in the case of any such
redemption, with accrued interest, including any Additional
Interest, to but excluding the date fixed for redemption;
provided, that the Depositor shall have received the prior
approval of the Federal Reserve if then required. The Notes may
also be redeemed by the Depositor, at its option, at any time,
in whole but not in part, upon the occurrence of a Capital
Disqualification Event, an Investment Company Event or a Tax
Event at the Indenture Redemption Price.
The Trust Securities redeemed on each Redemption Date shall
be redeemed at the Redemption Price with the proceeds from the
contemporaneous redemption or payment at maturity of Notes.
Redemptions of the Trust Securities (or portion thereof) shall
be made and the Redemption Price shall be payable on each
Redemption Date only to the extent that the Trust has funds then
on hand and available in the Payment Account for the payment of
such Redemption Price.
Payments of Distributions (including any Additional
Interest Amounts), the Redemption Price, Liquidation Amount or
any other amounts in respect of the Preferred Securities shall
be made by wire transfer at such place and to such account at a
banking institution in the United States as may be designated in
writing at least ten (10) Business Days prior to the date for
payment by the Person entitled thereto unless proper written
transfer instructions have not been received by the relevant
record date, in which case such payments shall be made by check
mailed to the address of such Person as such address shall
appear in the Security Register. If any
C-6
Preferred Securities are held by a Depositary, such Distributions
shall be made to the Depositary in immediately available funds.
The indebtedness evidenced by the Notes is, to the extent
provided in the Indenture, subordinate and junior in right of
payment to the prior payment in full of all Senior Debt (as
defined in the Indenture), and this Security is issued subject
to the provisions of the Indenture with respect thereto.
C-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Preferred Securities 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 Preferred Securities Certificate on the
books of the Trust. The agent may substitute another to act for
him or her.
Date: ______________
Signature: ____________________________________
(Sign exactly as your name appears on the other side
of this Preferred Securities Certificate)
The signature(s) should be guaranteed by an eligible guarantor
institution (banks, stockbrokers, savings and loan associations
and credit unions with membership in an approved signature
guarantee medallion program), pursuant to S.E.C. Rule 17Ad-15.
C-8
Junior Subordinated Indenture
D-1
Exhibit E
Form of Transferor Certificate
to be Executed by QIBs
__________, [ ]
WesBanco, Inc.
WesBanco Capital Trust II
One Bank Plaza
Wheeling, WV 26003
Re: Purchase of $1,000 stated liquidation amount of Floating
Rate Preferred Securities (the "Preferred Securities")
of WesBanco Capital Trust II
Reference is hereby made to the Amended and Restated Trust
Agreement of WesBanco Capital Trust II, dated as of June 19,
2003 (the "Trust Agreement"), among Robert H. Young, Paul M.
Limbert and Brent E. Richmond, as Administrative Trustees, The
Bank of New York (Delaware), as Delaware Trustee, The Bank of
New York, as Property Trustee, WesBanco, Inc., as Depositor, and
the holders from time to time of undivided beneficial interests
in the assets of WesBanco Capital Trust II. Capitalized terms
used but not defined herein shall have the meanings given them
in the Trust Agreement.
This letter relates to $________________________ aggregate
liquidation amount of Preferred Securities which are held in the
name of [name of transferor] (the "Transferor").
In accordance with Article V of the Trust Agreement, the
Transferor hereby certifies that such Preferred Securities are
being transferred in accordance with (i) the transfer
restrictions set forth in the Preferred Securities and (ii)
Rule 144A under the Securities Act ("Rule 144A"), to a
transferee that the Transferor reasonably believes is purchasing
the Preferred Securities for its own account or an account with
respect to which the transferee exercises sole investment
discretion and the transferee and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A,
in a transaction meeting the requirements of Rule 144A and in
accordance with applicable securities laws of any state of the
United States or any other jurisdiction.
You are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof
to any interested party in any administrative or legal
proceeding or official inquiry with respect to the matters
covered hereby.
(Name of Transferor)
By: ______________________
Name:
Title:
Date: ______________
E-1
Form of Transferee Certificate
to be Executed by Transferees other than QIBs
__________, [ ]
WesBanco, Inc.
WesBanco Capital Trust II
One Bank Plaza
Wheeling, WV 26003
Re: Purchase of $____________ stated liquidation
amount of Floating Rate Preferred Securities (the
"Preferred Securities") of WesBanco Capital Trust II
Ladies and Gentlemen:
In connection with our purchase of the Preferred Securities we
confirm that:
1. We understand that the Floating Rate Preferred
Securities (the "Preferred Securities") of WesBanco Capital
Trust II (the "Trust") (including the guarantee (the
"Guarantee") of WesBanco, Inc. (the "Company") executed in
connection therewith) and the Floating Rate Junior Subordinated
Notes due 2033 of the Company (the "Subordinated Notes") (the
entire amount of the Trust's outstanding Preferred Securities,
the Guarantee and the Subordinated Notes together being referred
to herein as the "Offered Securities"), have not been registered
under the Securities Act of 1933, as amended (the "Securities
Act"), and may not be offered or sold except as permitted in the
following sentence. We agree on our own behalf and on behalf of
any investor account for which we are purchasing the Offered
Securities that, if we decide to offer, sell or otherwise
transfer any such Offered Securities, (i) such offer, sale or
transfer will be made only (a) to the Trust, (b) to a person we
reasonably believe is a "qualified institutional buyer" (a
"QIB") (as defined in Rule 144 under the Securities Act) in a
transaction meeting the requirements of Rule 144A, (c) 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 Offered Securities for its own
account, or for the account of such an "accredited investor,"
for investment purposes and not with a view to, or for offer or
sale in connection with, any distribution thereof in violation
of the Securities Act, (d) pursuant to an effective registration
statement under the Securities Act, or (e) pursuant to an
exemption from the Securities Act, in each case in accordance
with any applicable securities laws of any state of the United
States or any other applicable jurisdiction and, in the case of
(c) or (e), subject to the right of the Trust and the depositor
to require an opinion of counsel and other information
satisfactory to each of them. The foregoing restrictions on
resale will not apply subsequent to the date on which, in the
written opinion of counsel, the Preferred Securities are not
"restricted securities" within the meaning of Rule 144 under the
Securities Act. If any resale or other transfer of the Offered
Securities is proposed to be made pursuant to clause (c) or (e)
above, the transferor shall deliver a letter from the transferee
substantially in the form of this letter to the Property Trustee
as Transfer Agent, which shall provide as applicable, among
other things, that the transferee is an "accredited
F-1
investor" within the meaning of subparagraph (a) (1), (2), (3) or
(7) of Rule 501 under the Securities Act that is acquiring such
Securities for investment purposes and not for distribution in
violation of the Securities Act. We acknowledge on our behalf
and on behalf of any investor account for which we are
purchasing Securities that the Trust and the Company reserve the
right prior to any offer, sale or other transfer pursuant to
clause (c) or (e) to require the delivery of any opinion of
counsel, certifications and/or other information satisfactory to
the Trust and the Company. We understand that the certificates
for any Offered Security that we receive will bear a legend
substantially to the effect of the foregoing.
2. We are an "accredited investor" within the
meaning of subparagraph (a) (1), (2), (3) or (7) of Rule 501
under the Securities Act purchasing for our own account or for
the account of such an "accredited investor," and we are
acquiring the Offered Securities for investment purposes and not
with view to, or for offer or sale in connection with, any
distribution in violation of the Securities Act, and we have
such knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of our
investment in the Offered Securities, and we and any account for
which we are acting are each able to bear the economic risks of
our or its investment.
3. We are acquiring the Offered Securities purchased
by us for our own account (or for one or more accounts as to
each of which we exercise sole investment discretion and have
authority to make, and do make, the statements contained in this
letter) and not with a view to any distribution of the Offered
Securities, subject, nevertheless, to the understanding that the
disposition of our property will at all times be and remain
within our control.
4. In the event that we purchase any Preferred
Securities or any Subordinated Notes, we will acquire such
Preferred Securities having an aggregate stated liquidation
amount of not less than $100,000 or such Subordinated Notes
having an aggregate principal amount not less than $100,000, for
our own account and for each separate account for which we are
acting.
5. We acknowledge that we are not a fiduciary of (i)
an employee benefit, individual retirement account or other plan
or arrangement subject to Title I of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), or Section
4975 of the Internal Revenue Code of 1986, as amended (the
"Code") (each a "Plan"); or (ii) an entity whose underlying
assets include "plan assets" by reason of any Plan's investment
in the entity, and are not purchasing any of the Offered
Securities on behalf of or with "plan assets" by reason of any
Plan's investment in the entity.
6. We acknowledge that the Trust and the Company and
others will rely upon the truth and accuracy of the foregoing
acknowledgments, representations, warranties and agreements and
agree that if any of the acknowledgments, representations,
warranties and agreements deemed to have been made by our
purchase of any of the Offered Securities are no longer
accurate, we shall promptly notify the Company. If we are
acquiring any Offered Securities as a fiduciary or agent for one
or more investor accounts, we represent that we have sole
discretion with respect to each such investor account and that
we have full power to make the foregoing acknowledgments,
representations and agreement on behalf of each such investor
account.
F-2
(Name of Purchaser)
By: _______________________
Date: _____________________
Upon transfer, the Preferred Securities (having a
stated liquidation amount of $_____________) would be registered
in the name of the new beneficial owner as follows.
Name: ______________________________
Address: ___________________________
Taxpayer ID Number: ________________
F-3
Officer's Certificate
The undersigned, the [Chief Financial Officer] [Treasurer]
[Executive Vice President] hereby certifies, pursuant to Section
8.16(b) of the Amended and Restated Trust Agreement, dated as of
June 19, 2003, among WesBanco, Inc. (the "Company"), The Bank of
New York, as property trustee, The Bank of New York (Delaware),
as Delaware trustee, and the administrative trustees named
therein, that, as of [date], [20__], the Company had the
following ratios and balances:
BANK HOLDING COMPANY
As of [Quarterly Financial Dates]
Tier 1 Risk Weighted Assets _________ %
Ratio of Double Leverage _________ %
Non-Performing Assets to Loans and OREO _________ %
Tangible Common Equity as a Percentage of Tangible Assets _________ %
Ratio of Reserves to Non-Performing Loans _________ %
Ratio of Net Charge-Offs to Loans _________ %
Return on Average Assets (annualized) _________ %
Net Interest Margin (annualized) _________ %
Efficiency Ratio _________ %
Ratio of Loans to Assets _________ %
Ratio of Loans to Deposits _________ %
Double Leverage (exclude trust preferred as equity) _________ %
Total Assets $_________
Year to Date Income $_________
* A table describing the quarterly report calculation procedures
is provided on page __
[FOR FISCAL YEAR END: Attached hereto are the audited
consolidated financial statements (including the balance sheet,
income statement and statement of cash flows, and notes thereto,
together with the report of the independent accountants thereon)
of the Company and its consolidated subsidiaries for the three
years ended _______, 20___.]
[FOR FISCAL QUARTER END: Attached hereto are the unaudited
consolidated and consolidating financial statements (including
the balance sheet and income statement) of the Company and its
consolidated subsidiaries for the fiscal quarter] ended [date],
20__.
The financial statements fairly present in all material
respects, in accordance with U.S. generally accepted accounting
principles ("GAAP"), the financial position of the Company and
its consolidated subsidiaries, and the results of operations and
changes in financial condition as of the date, and for the [___
quarter interim] [annual] period ended [date], 20__, and such
financial statements have been prepared in accordance with GAAP
consistently applied throughout the period involved (expect as
otherwise noted therein).
G-1
IN WITNESS WHEREOF, the undersigned has executed this
Officer's Certificate as of this _____ day of _____________,
20__
F-2
DETERMINATION OF LIBOR
With respect to the Trust Securities, the London interbank
offered rate ("LIBOR") shall be determined by the Calculation
Agent in accordance with the following provisions (in each case
rounded to the nearest .000001%):
(1) On the second LIBOR Business Day (as defined below) prior
to a Distribution Date (except with respect to the first
interest payment period, such date shall be June 19, 2003) (each
such day, a "LIBOR Determination Date"), LIBOR for any given
security shall for the following interest payment period equal
the rate, as obtained by the Calculation Agent from Bloomberg
Financial Markets Commodities News, for three-month Eurodollar
deposits that appears on Dow Jones Telerate Page 3750 (as
defined in the International Swaps and Derivatives Association,
Inc. 1991 Interest Rate and Currency Exchange Definitions), or
such other page as may replace such Page 3750, as of 11:00 a.m.
(London time) on such LIBOR Determination Date.
(2) If, on any LIBOR Determination Date, such rate does not
appear on Dow Jones Telerate Page 3750 or such other page as may
replace such Page 3750, the Calculation Agent shall determine
the arithmetic mean of the offered quotations of the Reference
Banks (as defined below) to leading banks in the London
interbank market for three-month Eurodollar deposits in an
amount determined by the Calculation Agent by reference to
requests for quotations as of approximately 11:00 a.m. (London
time) on the LIBOR Determination Date made by the Calculation
Agent to the Reference Banks. If, on any LIBOR Determination
Date, at least two of the Reference Banks provide such
quotations, LIBOR shall equal such arithmetic mean of such
quotations. If, on any LIBOR Determination Date, only one or
none of the Reference Banks provide such quotations, LIBOR shall
be deemed to be the arithmetic mean of the offered quotations
that leading banks in the City of New York selected by the
Calculation Agent are quoting on the relevant LIBOR
Determination Date for three-month Eurodollar deposits in an
amount determined by the Calculation Agent by reference to the
principal London offices of leading banks in the London
interbank market; provided, that if the Calculation Agent is
required but is unable to determine a rate in accordance with at
least one of the procedures provided above, LIBOR shall be LIBOR
as determined on the previous LIBOR Determination Date.
(3) As used herein: "Reference Banks" means four major banks in
the London interbank market selected by the Calculation Agent;
and "LIBOR Business Day" means a day on which commercial banks
are open for business (including dealings in foreign exchange
and foreign currency deposits) in London.
S-A-1