Exhibit 4.7
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AMENDED AND RESTATED DECLARATION
OF TRUST
by and among
U.S. BANK NATIONAL ASSOCIATION,
as Institutional Trustee,
WESBANCO, INC.,
as Sponsor,
and
ROBERT H. YOUNG, PAUL M. LIMBERT and BRENT E. RICHMOND,
as Administrators,
Dated as of June 26, 2003
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TABLE OF CONTENTS
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Page
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ARTICLE I INTERPRETATION AND DEFINITIONS............................... 1
Section 1.1. Definitions........................................ 1
ARTICLE II ORGANIZATION................................................ 7
Section 2.1. Name............................................... 7
Section 2.2. Office............................................. 7
Section 2.3. Purpose............................................ 7
Section 2.4. Authority.......................................... 8
Section 2.5. Title to Property of the Trust..................... 8
Section 2.6. Powers and Duties of the Institutional
Trustee and the Administrators..................... 8
Section 2.7. Prohibition of Actions by the Trust and the
Institutional Trustee.............................. 11
Section 2.8. Powers and Duties of the Institutional Trustee..... 12
Section 2.9. Certain Duties and Responsibilities of the
Institutional Trustee and Administrators........... 13
Section 2.10. Certain Rights of Institutional Trustee............ 14
Section 2.11. Execution of Documents............................. 16
Section 2.12. Not Responsible for Recitals or Issuance of
Securities......................................... 17
Section 2.13. Duration of Trust.................................. 17
Section 2.14. Mergers............................................ 17
ARTICLE III SPONSOR.................................................... 18
Section 3.1. Sponsor's Purchase of Common Securities............ 18
Section 3.2. Responsibilities of the Sponsor.................... 18
Section 3.3. Expenses........................................... 19
Section 3.4. Right to Proceed................................... 19
ARTICLE IV INSTITUTIONAL TRUSTEE AND ADMINISTRATORS.................... 19
Section 4.1. Institutional Trustee; Eligibility................. 19
Section 4.2. Administrators..................................... 20
Section 4.3. Appointment, Removal and Resignation of
Institutional Trustee and Administrators........... 20
Section 4.4. Institutional Trustee Vacancies.................... 21
Section 4.5. Effect of Vacancies................................ 21
Section 4.6. Meetings of the Institutional Trustee and the
Administrators..................................... 21
Section 4.7. Delegation of Power................................ 22
Section 4.8. Conversion, Consolidation or Succession to Business. 22
ARTICLE V DISTRIBUTIONS................................................ 22
Section 5.1. Distributions...................................... 22
ARTICLE VI ISSUANCE OF SECURITIES...................................... 23
Section 6.1. General Provisions Regarding Securities............ 23
Section 6.2. Paying Agent, Transfer Agent and Registrar......... 23
Section 6.3. Form and Dating.................................... 24
Section 6.4. Mutilated, Destroyed, Lost or Stolen Certificates.. 24
Section 6.5. Temporary Securities............................... 24
Section 6.6. Cancellation....................................... 25
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Section 6.7. Rights of Holders; Waivers of Past Defaults........ 25
ARTICLE VII DISSOLUTION AND TERMINATION OF TRUST....................... 26
Section 7.1. Dissolution and Termination of Trust............... 26
ARTICLE VIII TRANSFER OF INTERESTS..................................... 27
Section 8.1. General............................................ 27
Section 8.2. Transfer Procedures and Restrictions............... 28
Section 8.3. Deemed Security Holders............................ 30
ARTICLE IX LIMITATION OF LIABILITY OF HOLDERS OF
SECURITIES, INSTITUTIONAL TRUSTEE OR OTHERS................. 30
Section 9.1. Liability.......................................... 30
Section 9.2. Exculpation........................................ 31
Section 9.3. Fiduciary Duty..................................... 31
Section 9.4. Indemnification.................................... 31
Section 9.5. Outside Businesses................................. 33
Section 9.6. Compensation; Fee.................................. 34
ARTICLE X ACCOUNTING................................................... 34
Section 10.1. Fiscal Year........................................ 34
Section 10.2. Certain Accounting Matters......................... 34
Section 10.3. Banking............................................ 35
Section 10.4. Withholding........................................ 35
ARTICLE XI AMENDMENTS AND MEETINGS..................................... 35
Section 11.1. Amendments......................................... 35
Section 11.2. Meetings of the Holders of Securities; Action by
Written Consent.................................... 36
ARTICLE XII REPRESENTATIONS OF INSTITUTIONAL TRUSTEE................... 38
Section 12.1. Representations and Warranties of Institutional
Trustee............................................ 38
ARTICLE XIII MISCELLANEOUS............................................. 38
Section 13.1. Notices............................................ 38
Section 13.2. Governing Law...................................... 39
Section 13.3. Intention of the Parties........................... 39
Section 13.4. Headings........................................... 40
Section 13.5. Successors and Assigns............................. 40
Section 13.6. Partial Enforceability............................. 40
Section 13.7. Counterparts....................................... 40
Annex I ........Terms of Securities
Exhibit A-1.....Form of Capital Security Certificate
Exhibit A-2.....Form of Common Security Certificate
Exhibit B.......Specimen of Initial Debenture
Exhibit C.......Placement Agreement
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AMENDED AND RESTATED
DECLARATION OF TRUST
OF
WESBANCO, INC. CAPITAL STATUTORY TRUST III
June 26, 2003
AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration")
dated and effective as of June 26, 2003, by the Institutional
Trustee (as defined herein), the Administrators (as defined
herein), the Sponsor (as defined herein) and by the holders,
from time to time, of undivided beneficial interests in the
Trust (as defined herein) to be issued pursuant to this
Declaration;
WHEREAS, the Institutional Trustee, the Administrators and
the Sponsor established Wesbanco, Inc. Capital Statutory
Trust III (the "Trust"), a statutory trust under the Statutory
Trust Act (as defined herein) pursuant to a Declaration of Trust
dated as of June 12, 2003 (the "Original Declaration"), and a
Certificate of Trust filed with the Secretary of State of the
State of Connecticut on June 12, 2003, for the sole purpose of
issuing and selling certain securities representing undivided
beneficial interests in the assets of the Trust and investing
the proceeds thereof in certain debentures of the Debenture
Issuer (as defined herein);
WHEREAS, as of the date hereof, no interests in the Trust
have been issued; and
WHEREAS, the Institutional Trustee, the Administrators and
the Sponsor, by this Declaration, amend and restate each and
every term and provision of the Original Declaration;
NOW, THEREFORE, it being the intention of the parties
hereto to continue the Trust as a statutory trust under the
Statutory Trust Act and that this Declaration constitutes the
governing instrument of such statutory trust, the Institutional
Trustee declares that all assets contributed to the Trust will
be held in trust for the benefit of the holders, from time to
time, of the securities representing undivided beneficial
interests in the assets of the Trust issued hereunder, subject
to the provisions of this Declaration. The parties hereto
hereby agree as follows:
ARTICLE I
INTERPRETATION AND DEFINITIONS
Section 1.1. Definitions. Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not
defined in the preamble above have the respective meanings
assigned to them in this Section 1.1;
(b) a term defined anywhere in this Declaration has the
same meaning throughout;
(c) all references to "the Declaration" or "this
Declaration" are to this Declaration as modified, supplemented
or amended from time to time;
(d) all references in this Declaration to Articles and
Sections and Annexes and Exhibits are to Articles and Sections
of and Annexes and Exhibits to this Declaration unless otherwise
specified; and
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(e) a reference to the singular includes the plural and
vice versa.
"Additional Interest" has the meaning set forth in the Indenture.
"Administrative Action" has the meaning set forth in
paragraph 4(a) of Annex I.
"Administrators" means each of Robert H. Young, Paul M.
Limbert and Brent E. Richmond, solely in such Person's capacity
as Administrator of the Trust created and continued hereunder
and not in such Person's individual capacity, or such
Administrator's successor in interest in such capacity, or any
successor appointed as herein provided.
"Affiliate" has the same meaning as given to that term in
Rule 405 of the Securities Act or any successor rule thereunder.
"Authorized Officer" of a Person means any Person that is
authorized to bind such Person.
"Bankruptcy Event" means, with respect to any Person:
(a) a court having jurisdiction in the premises shall
enter a decree or order for relief in respect of such Person in
an involuntary case under any applicable bankruptcy, insolvency
or other similar law now or hereafter in effect, or appointing a
receiver, liquidator, assignee, custodian, trustee, sequestrator
(or similar official) of such Person or for any substantial part
of its property, or ordering the winding-up or liquidation of
its affairs and such decree or order shall remain unstayed and
in effect for a period of 90 consecutive days; or
(b) such Person shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, shall consent to the entry of an order for
relief in an involuntary case under any such law, or shall
consent to the appointment of or taking possession by a
receiver, liquidator, assignee, trustee, custodian, sequestrator
(or other similar official) of such Person of any substantial
part of its property, or shall make any general assignment for
the benefit of creditors, or shall fail generally to pay its
debts as they become due.
"Business Day" means any day other than Saturday, Sunday or
any other day on which banking institutions in New York City or
Hartford, Connecticut are permitted or required by any
applicable law to close.
"Capital Securities" has the meaning set forth in paragraph
1(a) of Annex I.
"Capital Security Certificate" means a definitive
Certificate in fully registered form representing a Capital
Security substantially in the form of Exhibit A-1.
"Capital Treatment Event" has the meaning set forth in
paragraph 4(a) of Annex I.
"Certificate" means any certificate evidencing Securities.
"Closing Date" has the meaning set forth in the Placement Agreement.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time, or any successor legislation.
"Common Securities" has the meaning set forth in paragraph
1(b) of Annex I.
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"Common Security Certificate" means a definitive
Certificate in fully registered form representing a Common
Security substantially in the form of Exhibit A-2.
"Company Indemnified Person" means (a) any Administrator;
(b) any Affiliate of any Administrator; (c) any officers,
directors, shareholders, members, partners, employees,
representatives or agents of any Administrator; or (d) any
officer, employee or agent of the Trust or its Affiliates.
"Comparable Treasury Issue" has the meaning set forth in
paragraph 4(a) of Annex I.
"Comparable Treasury Price" has the meaning set forth in
paragraph 4(a) of Annex I.
"Corporate Trust Office" means the office of the
Institutional Trustee at which the corporate trust business of
the Institutional Trustee shall, at any particular time, be
principally administered, which office at the date of execution
of this Declaration is located at 225 Asylum Street, Goodwin
Square, Hartford, Connecticut 06103.
"Coupon Rate" has the meaning set forth in paragraph 2(a) of Annex I.
"Covered Person" means: (a) any Administrator, officer,
director, shareholder, partner, member, representative, employee
or agent of (i) the Trust or (ii) any of the Trust's Affiliates;
and (b) any Holder of Securities.
"Creditor" has the meaning set forth in Section 3.3.
"Debenture Issuer" means Wesbanco, Inc., a West Virginia
corporation, in its capacity as issuer of the Debentures under
the Indenture.
"Debenture Trustee" means U.S. Bank National Association,
as trustee under the Indenture until a successor is appointed
thereunder, and thereafter means such successor trustee.
"Debentures" means the Fixed/Floating Rate Junior
Subordinated Deferrable Interest Debentures due 2033 to be
issued by the Debenture Issuer under the Indenture.
"Defaulted Interest" has the meaning set forth in the Indenture.
"Determination Date" has the meaning set forth in paragraph
4(a) of Annex I.
"Direct Action" has the meaning set forth in Section 2.8(d).
"Distribution" means a distribution payable to Holders of
Securities in accordance with Section 5.1.
"Distribution Payment Date" has the meaning set forth in
paragraph 2(b) of Annex I.
"Distribution Period" means the period beginning on (and
including) the date of original issuance and ending on (but
excluding) September 26, 2003 and each successive period
beginning on (and including) September 26, 2003, and each
succeeding Distribution Payment Date, and ending on (but
excluding) the next succeeding Distribution Payment Date.
"Distribution Rate" means, for the period beginning on (and
including) the date of original issuance and ending on (but
excluding) June 26, 2008, the rate per annum of 5.55%, and for
the period beginning on (and including) June 26, 2008 and
thereafter, the Coupon Rate.
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"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
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 an Indenture Event of Default; or
(b) default by the Trust in the payment of any Redemption
Price or Special Redemption Price of any Security when it
becomes due and payable; or
(c) default in the performance, or breach, in any material
respect, of any covenant or warranty of the Institutional
Trustee in this Declaration (other than those specified in
clause (a) or (b) above) and continuation of such default or
breach for a period of 60 days after there has been given, by
registered or certified mail to the Institutional Trustee and to
the Sponsor by the Holders of at least 25% in aggregate
liquidation amount of the outstanding Capital 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
(d) the occurrence of a Bankruptcy Event with respect to
the Institutional Trustee if a successor Institutional Trustee
has not been appointed within 90 days thereof.
"Extension Period" has the meaning set forth in
paragraph 2(b) of Annex I.
"Federal Reserve" has the meaning set forth in paragraph 3
of Annex I.
"Fiduciary Indemnified Person" shall mean the Institutional
Trustee, any Affiliate of the Institutional Trustee and any
officers, directors, shareholders, members, partners, employees,
representatives, custodians, nominees or agents of the
Institutional Trustee.
"Fiscal Year" has the meaning set forth in Section 10.1.
"Fixed Rate Period Remaining Life" has the meaning set
forth in paragraph 4(a) of Annex I.
"Guarantee" means the guarantee agreement to be dated as of
the Closing Date, of the Sponsor in respect of the Capital
Securities.
"Holder" means a Person in whose name a Certificate
representing a Security is registered, such Person being a
beneficial owner within the meaning of the Statutory Trust Act.
"Indemnified Person" means a Company Indemnified Person or
a Fiduciary Indemnified Person.
"Indenture" means the Indenture dated as of the Closing
Date, between the Debenture Issuer and the Debenture Trustee,
and any indenture supplemental thereto pursuant to which the
Debentures are to be issued, as such Indenture and any
supplemental indenture may be amended, supplemented or otherwise
modified from time to time.
"Indenture Event of Default" means an "Event of Default" as
defined in the Indenture.
"Institutional Trustee" means the Trustee meeting the
eligibility requirements set forth in Section 4.1.
"Interest" means any interest due on the Debentures
including any Additional Interest and Defaulted Interest.
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"Investment Company" means an investment company as defined
in the Investment Company Act.
"Investment Company Act" means the Investment Company Act
of 1940, as amended from time to time, or any successor
legislation.
"Investment Company Event" has the meaning set forth in
paragraph 4(a) of Annex I.
"Liquidation" has the meaning set forth in paragraph 3 of Annex I.
"Liquidation Distribution" has the meaning set forth in
paragraph 3 of Annex I.
"Majority in liquidation amount of the Securities" means
Holder(s) of outstanding Securities voting together as a single
class or, as the context may require, Holders of outstanding
Capital Securities or Holders of outstanding Common Securities
voting separately as a class, who are the record owners of more
than 50% of the aggregate liquidation amount (including the
stated amount that would be paid on redemption, liquidation or
otherwise, plus accrued and unpaid Distributions to the date
upon which the voting percentages are determined) of all
outstanding Securities of the relevant class.
"Maturity Date" has the meaning set forth in paragraph 4(a) of Annex I.
"Officers' Certificates" means, with respect to any Person,
a certificate signed by two Authorized Officers of such Person.
Any Officers' Certificate delivered with respect to compliance
with a condition or covenant providing for it in this
Declaration shall include:
(a) a statement that each officer signing the Certificate
has read the covenant or condition and the definitions relating
thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in
rendering the Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion, is
necessary to enable such officer to express an informed opinion
as to whether or not such covenant or condition has been
complied with; and
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"OTS" has the meaning set forth in paragraph 3 of Annex I.
"Paying Agent" has the meaning specified in Section 6.2.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association,
joint stock company, limited liability company, trust,
unincorporated association, or government or any agency or
political subdivision thereof, or any other entity of whatever
nature.
"Placement Agreement" means the Placement Agreement
relating to the offering and sale of Capital Securities in the
form of Exhibit C.
"Primary Treasury Dealer" has the meaning set forth in
paragraph 4(a) of Annex I.
"Property Account" has the meaning set forth in Section 2.8(c).
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"Pro Rata" has the meaning set forth in paragraph 8 of Annex I.
"Quorum" means a majority of the Administrators or, if
there are only two Administrators, both of them.
"Quotation Agent" has the meaning set forth in
paragraph 4(a) of Annex I.
"Redemption Date" has the meaning set forth in paragraph
4(a) of Annex I.
"Redemption/Distribution Notice" has the meaning set forth
in paragraph 4(e) of Annex I.
"Redemption Price" has the meaning set forth in
paragraph 4(a) of Annex I.
"Registrar" has the meaning set forth in Section 6.2.
"Reference Treasury Dealer" has the meaning set forth in
paragraph 4(a) of Annex I.
"Reference Treasury Dealer Quotations" has the meaning set
forth in paragraph 4(a) of Annex I.
"Responsible Officer" means, with respect to the
Institutional Trustee, any officer within the Corporate Trust
Office of the Institutional Trustee, including any vice-
president, any assistant vice-president, any assistant
secretary, the treasurer, any assistant treasurer, any trust
officer or other officer of the Corporate Trust Office of the
Institutional Trustee customarily performing functions similar
to those performed by any of the above designated officers and
also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of
that officer's knowledge of and familiarity with the particular
subject.
"Restricted Securities Legend" has the meaning set forth in
Section 8.2(b).
"Rule 3a-5" means Rule 3a-5 under the Investment Company Act.
"Rule 3a-7" means Rule 3a-7 under the Investment Company Act.
"Securities" means the Common Securities and the Capital Securities.
"Securities Act" means the Securities Act of 1933, as
amended from time to time, or any successor legislation.
"Special Event" has the meaning set forth in paragraph 4(a) of Annex I.
"Special Redemption Date" has the meaning set forth in
paragraph 4(a) of Annex I.
"Special Redemption Price" has the meaning set forth in
paragraph 4(a) of Annex I.
"Sponsor" means Wesbanco, Inc., a West Virginia
corporation, or any successor entity in a merger, consolidation
or amalgamation, in its capacity as sponsor of the Trust.
"Statutory Trust Act" means Chapter 615 of Title 34 of the
Connecticut General Statutes, Sections 500, et seq. as may be
amended from time to time.
"Successor Entity" has the meaning set forth in Section 2.14(b).
"Successor Institutional Trustee" has the meaning set forth
in Section 4.3(a).
6
"Successor Securities" has the meaning set forth in Section 2.14(b).
"Super Majority" has the meaning set forth in paragraph 5(b) of Annex I.
"Tax Event" has the meaning set forth in paragraph 4(a) of Annex I.
"10% in liquidation amount of the Securities" means
Holder(s) of outstanding Securities voting together as a single
class or, as the context may require, Holders of outstanding
Capital Securities or Holders of outstanding Common Securities
voting separately as a class, who are the record owners of 10%
or more of the aggregate liquidation amount (including the
stated amount that would be paid on redemption, liquidation or
otherwise, plus accrued and unpaid Distributions to the date
upon which the voting percentages are determined) of all
outstanding Securities of the relevant class.
"3-Month LIBOR" has the meaning set forth in paragraph 4(a) of Annex I.
"Transfer Agent" has the meaning set forth in Section 6.2.
"Treasury Rate" has the meaning set forth in paragraph 4(a) of Annex I.
"Treasury Regulations" means the income tax regulations,
including temporary and proposed regulations, promulgated under
the Code by the United States Treasury, as such regulations may
be amended from time to time (including corresponding provisions
of succeeding regulations).
"Trust Property" means (a) the Debentures, (b) any cash on
deposit in, or owing to, the Property 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 Institutional Trustee pursuant to the trusts of this
Declaration.
"U.S. Person" means a United States Person as defined in
Section 7701(a)(30) of the Code.
ARTICLE II
ORGANIZATION
Section 2.1. Name. The Trust is named "Wesbanco, Inc. Capital
Statutory Trust III," as such name may be modified from time to
time by the Administrators following written notice to the
Holders of the Securities. The Trust's activities may be
conducted under the name of the Trust or any other name deemed
advisable by the Administrators.
Section 2.2. Office. The address of the principal office of
the Trust is c/o U.S. Bank National Association, 225 Asylum
Street, Goodwin Square, Hartford, Connecticut 06103. On at
least 10 Business Days written notice to the Holders of the
Securities, the Administrators may designate another principal
office, which shall be in a state of the United States or in the
District of Columbia.
Section 2.3. Purpose. The exclusive purposes and functions of
the Trust are (a) to issue and sell the Securities representing
undivided beneficial interests in the assets of the Trust,
(b) to invest the gross proceeds from such sale to acquire the
Debentures, (c) to facilitate direct investment in the assets of
the Trust through issuance of the Common Securities and the
Capital Securities and (d) except as otherwise limited herein,
to engage in only those other activities necessary or incidental
thereto. The Trust shall not borrow money, issue debt or
reinvest proceeds derived from investments, pledge any of its
assets, or otherwise undertake (or permit to be undertaken) any
activity that would cause the Trust not to be classified for
United States federal income tax purposes as a grantor trust.
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Section 2.4. Authority. Except as specifically provided in
this Declaration, the Institutional Trustee shall have exclusive
and complete authority to carry out the purposes of the Trust.
An action taken by the Institutional Trustee in accordance with
its powers shall constitute the act of and serve to bind the
Trust. In dealing with the Institutional Trustee acting on
behalf of the Trust, no Person shall be required to inquire into
the authority of the Institutional Trustee to bind the Trust.
Persons dealing with the Trust are entitled to rely conclusively
on the power and authority of the Institutional Trustee as set
forth in this Declaration. The Administrators shall have only
those ministerial duties set forth herein with respect to
accomplishing the purposes of the Trust and are not intended to
be trustees or fiduciaries with respect to the Trust or the
Holders. The Institutional Trustee shall have the right, but
shall not be obligated except as provided in Section 2.6, to
perform those duties assigned to the Administrators.
Section 2.5. Title to Property of the Trust. Except as
provided in Section 2.8 with respect to the Debentures and the
Property Account or as otherwise provided in this Declaration,
legal title to all assets of the Trust shall be vested in the
Trust. The Holders shall not have legal title to any part of
the assets of the Trust, but shall have an undivided beneficial
interest in the assets of the Trust.
Section 2.6. Powers and Duties of the Institutional Trustee
and the Administrators.
(a) The Institutional Trustee and the Administrators
shall conduct the affairs of the Trust in accordance with the
terms of this Declaration. Subject to the limitations set forth
in paragraph (b) of this Section, and in accordance with the
following provisions (i) and (ii), the Institutional Trustee and
the Administrators shall have the authority to enter into all
transactions and agreements determined by the Institutional
Trustee to be appropriate in exercising the authority, express
or implied, otherwise granted to the Institutional Trustee or
the Administrators, as the case may be, under this Declaration,
and to perform all acts in furtherance thereof, including
without limitation, the following:
(i) Each Administrator shall have the power and
authority to act on behalf of the Trust with respect to the
following matters:
(A) the issuance and sale of the Securities;
(B) to cause the Trust to enter into, and to
execute and deliver on behalf of the Trust, such
agreements as may be necessary or desirable in
connection with the purposes and function of the
Trust, including agreements with the Paying Agent;
(C) ensuring compliance with the Securities Act,
applicable state securities or blue sky laws;
(D) the sending of notices (other than notices
of default), and other information regarding the
Securities and the Debentures to the Holders in
accordance with this Declaration;
(E) the consent to the appointment of a Paying
Agent, Transfer Agent and Registrar in accordance with
this Declaration, which consent shall not be
unreasonably withheld or delayed;
(F) execution and delivery of the Securities in
accordance with this Declaration;
(G) execution and delivery of closing
certificates pursuant to the Placement Agreement and
the application for a taxpayer identification number;
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(H) unless otherwise determined by the Holders
of a Majority in liquidation amount of the Securities
or as otherwise required by the Statutory Trust Act,
to execute on behalf of the Trust (either acting alone
or together with any or all of the Administrators) any
documents that the Administrators have the power to
execute pursuant to this Declaration;
(I) the taking of any action incidental to the
foregoing as the Institutional Trustee may from time
to time determine is necessary or advisable to give
effect to the terms of this Declaration for the
benefit of the Holders (without consideration of the
effect of any such action on any particular Holder);
(J) to establish a record date with respect to
all actions to be taken hereunder that require a
record date be established, including Distributions,
voting rights, redemptions and exchanges, and to issue
relevant notices to the Holders of Capital Securities
and Holders of Common Securities as to such actions
and applicable record dates; and
(K) to duly prepare and file all applicable tax
returns and tax information reports that are required
to be filed with respect to the Trust on behalf of the
Trust.
(ii) As among the Institutional Trustee and the
Administrators, the Institutional Trustee shall have the
power, duty and authority to act on behalf of the Trust
with respect to the following matters:
(A) the establishment of the Property Account;
(B) the receipt of the Debentures;
(C) the collection of interest, principal and
any other payments made in respect of the Debentures
in the Property Account;
(D) the distribution through the Paying Agent of
amounts owed to the Holders in respect of the Securities;
(E) the exercise of all of the rights, powers
and privileges of a holder of the Debentures;
(F) the sending of notices of default and other
information regarding the Securities and the
Debentures to the Holders in accordance with this
Declaration;
(G) the distribution of the Trust Property in
accordance with the terms of this Declaration;
(H) to the extent provided in this Declaration,
the winding up of the affairs of and liquidation of
the Trust and the preparation, execution and filing of
the certificate of cancellation with the Secretary of
State of the State of Connecticut;
(I) after any Event of Default (provided that
such Event of Default is not by or with respect to the
Institutional Trustee) the taking of any action
incidental to the foregoing as the Institutional
Trustee may from time to time determine is necessary
or advisable to give effect to the terms of this
Declaration 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); and
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(J) to take all action that may be necessary for
the preservation and the continuation of the Trust's
valid existence, rights, franchises and privileges as
a statutory trust under the laws of the State of
Connecticut and of each other jurisdiction in which
such existence is necessary to protect the limited
liability of the Holders of the Capital Securities or
to enable the Trust to effect the purposes for which
the Trust was created.
(iii) The Institutional Trustee shall have the
power and authority to act on behalf of the Trust with
respect to any of the duties, liabilities, powers or the
authority of the Administrators set forth in
Section 2.6(a)(i)(D), (E) and (F) herein but shall not have
a duty to do any such act unless specifically requested to
do so in writing by the Sponsor, and shall then be fully
protected in acting pursuant to such written request; and
in the event of a conflict between the action of the
Administrators and the action of the Institutional Trustee,
the action of the Institutional Trustee shall prevail.
(b) So long as this Declaration remains in effect, the
Trust (or the Institutional Trustee or Administrators acting on
behalf of the Trust) shall not undertake any business,
activities or transaction except as expressly provided herein or
contemplated hereby. In particular, neither the Institutional
Trustee nor the Administrators may cause the Trust to
(i) acquire any investments or engage in any activities not
authorized by this Declaration, (ii) sell, assign, transfer,
exchange, mortgage, pledge, set-off or otherwise dispose of any
of the Trust Property or interests therein, including to
Holders, except as expressly provided herein, (iii) take any
action that would reasonably be expected (x) to cause the Trust
to fail or cease to qualify as a "grantor trust" for United
States federal income tax purposes or (y) to require the trust
to register as an Investment Company under the Investment
Company Act, (iv) incur any indebtedness for borrowed money or
issue any other debt or (v) take or consent to any action that
would result in the placement of a lien on any of the Trust
Property. The Institutional Trustee shall, at the sole cost and
expense of the Trust, defend all claims and demands of all
Persons at any time claiming any lien on any of the Trust
Property adverse to the interest of the Trust or the Holders in
their capacity as Holders.
(c) In connection with the issuance and sale of the
Capital Securities, the Sponsor 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
Sponsor in furtherance of the following prior to the date of
this Declaration are hereby ratified and confirmed in all
respects):
(i) the taking of any action necessary to obtain an
exemption from the Securities Act;
(ii) the determination of the States in which to
take appropriate action to qualify or register for sale all
or part of the Capital Securities and the determination of
any and all such acts, other than actions which must be
taken by or on behalf of the Trust, and the advice to the
Administrators of actions they must take on behalf of the
Trust, and the preparation for execution and filing of any
documents to be executed and filed by the Trust or on
behalf of the Trust, as the Sponsor deems necessary or
advisable in order to comply with the applicable laws of
any such States in connection with the sale of the Capital
Securities;
(iii) the negotiation of the terms of, and the
execution and delivery of, the Placement Agreement
providing for the sale of the Capital Securities; and
(iv) the taking of any other actions necessary or
desirable to carry out any of the foregoing activities.
10
(d) Notwithstanding anything herein to the contrary, the
Administrators and the Holders of a Majority in liquidation
amount of the Common Securities are authorized and directed to
conduct the affairs of the Trust and to operate the Trust so
that the Trust will not (i) be deemed to be an Investment
Company required to be registered under the Investment Company
Act, and (ii) fail to be classified as a "grantor trust" for
United States federal income tax purposes. The Administrators
and the Holders of a Majority in liquidation amount of the
Common Securities shall not take any action inconsistent with
the treatment of the Debentures as indebtedness of the Debenture
Issuer for United States federal income tax purposes. In this
connection, the Administrators and the Holders of a Majority in
liquidation amount of the Common Securities are authorized to
take any action, not inconsistent with applicable laws, the
Certificate of Trust or this Declaration, as amended from time
to time, that each of the Administrators and the Holders of a
Majority in liquidation amount of the Common Securities
determines in their discretion to be necessary or desirable for
such purposes.
(e) All expenses incurred by the Administrators or the
Institutional Trustee pursuant to this Section 2.6 shall be
reimbursed by the Sponsor, and the Institutional Trustee and the
Administrators shall have no obligations with respect to such
expenses.
(f) The assets of the Trust shall consist of the Trust Property.
(g) Legal title to all Trust Property shall be vested at
all times in the Institutional Trustee (in its capacity as such)
and shall be held and administered by the Institutional Trustee
and the Administrators for the benefit of the Trust in
accordance with this Declaration.
(h) If the Institutional Trustee or any Holder has
instituted any proceeding to enforce any right or remedy under
this Declaration and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to
the Institutional Trustee or to such Holder, then and in every
such case the Sponsor, the Institutional Trustee and the Holders
shall, subject to any determination in such proceeding, be
restored severally and respectively to their former positions
hereunder, and thereafter all rights and remedies of the
Institutional Trustee and the Holders shall continue as though
no such proceeding had been instituted.
Section 2.7. Prohibition of Actions by the Trust and the
Institutional Trustee.
(a) The Trust shall not, and the Institutional Trustee
shall cause the Trust not to, engage in any activity other than
as required or authorized by this Declaration. In particular,
the Trust shall not and the Institutional Trustee shall cause
the Trust not to:
(i) invest any proceeds received by the Trust from
holding the Debentures, but shall distribute all such
proceeds to Holders of the Securities pursuant to the terms
of this Declaration and of the Securities;
(ii) acquire any assets other than as expressly
provided herein;
(iii) possess Trust Property for other than a Trust purpose;
(iv) make any loans or incur any indebtedness other
than loans represented by the Debentures;
(v) possess any power or otherwise act in such a
way as to vary the Trust assets or the terms of the
Securities in any way whatsoever other than as expressly
provided herein;
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(vi) issue any securities or other evidences of
beneficial ownership of, or beneficial interest in, the
Trust other than the Securities;
(vii) carry on any "trade or business" as that
phrase is used in the Code; or
(viii) other than as provided in this Declaration
(including Annex I), (A) direct the time, method and place
of exercising any trust or power conferred upon the
Debenture Trustee with respect to the Debentures, (B) waive
any past default that is waivable under the Indenture,
(C) exercise any right to rescind or annul any declaration
that the principal of all the Debentures shall be due and
payable, or (D) consent to any amendment, modification or
termination of the Indenture or the Debentures where such
consent shall be required unless the Trust shall have
received a written opinion of counsel to the effect that
such modification will not cause the Trust to cease to be
classified as a "grantor trust" for United States federal
income tax purposes.
.. Section 2.8. Powers and Duties of the Institutional Trustee.
(a) The legal title to the Debentures shall be owned by
and held of record in the name of the Institutional Trustee in
trust for the benefit of the Trust and the Holders of the
Securities. The right, title and interest of the Institutional
Trustee to the Debentures shall vest automatically in each
Person who may hereafter be appointed as Institutional Trustee
in accordance with Section 4.3. Such vesting and cessation of
title shall be effective whether or not conveyancing documents
with regard to the Debentures have been executed and delivered.
(b) The Institutional Trustee shall not transfer its
right, title and interest in the Debentures to the
Administrators.
(c) The Institutional Trustee shall:
(i) establish and maintain a segregated non-
interest bearing trust account (the "Property Account") in
the name of and under the exclusive control of the
Institutional Trustee, and maintained in the Institutional
Trustee's trust department, on behalf of the Holders of the
Securities and, upon the receipt of payments of funds made
in respect of the Debentures held by the Institutional
Trustee, deposit such funds into the Property Account and
make payments, or cause the Paying Agent to make payments,
to the Holders of the Capital Securities and Holders of the
Common Securities from the Property Account in accordance
with Section 5.1. Funds in the Property Account shall be
held uninvested until disbursed in accordance with this
Declaration;
(ii) engage in such ministerial activities as shall
be necessary or appropriate to effect the redemption of the
Capital Securities and the Common Securities to the extent
the Debentures are redeemed or mature; and
(iii) upon written notice of distribution issued
by the Administrators in accordance with the terms of the
Securities, engage in such ministerial activities as shall
be necessary or appropriate to effect the distribution of
the Debentures to Holders of Securities upon the occurrence
of certain circumstances pursuant to the terms of the
Securities.
(d) The Institutional Trustee may bring or defend, pay,
collect, compromise, arbitrate, resort to legal action with
respect to, or otherwise adjust claims or demands of or against,
the Trust which arises out of or in connection with an Event of
Default of which a Responsible Officer of the Institutional
Trustee has actual knowledge or arises out of the Institutional
Trustee's duties and obligations under this Declaration;
provided, however, that if an Event of Default has occurred and
is continuing and such event is attributable to the failure of
the Debenture Issuer to pay interest or principal on the
Debentures on the
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date such interest or principal is otherwise payable
(or in the case of redemption, on the redemption date),
then a Holder of the Capital Securities may directly institute a
proceeding for enforcement of payment to such Holder of the
principal of or interest on the Debentures having a principal
amount equal to the aggregate liquidation amount of the Capital
Securities of such Holder (a "Direct Action") on or after the
respective due date specified in the Debentures. In connection
with such Direct Action, the rights of the Holders of the Common
Securities will be subrogated to the rights of such Holder of
the Capital Securities to the extent of any payment made by the
Debenture Issuer to such Holder of the Capital Securities in
such Direct Action; provided, however, that no Holder of the
Common Securities may exercise such right of subrogation so long
as an Event of Default with respect to the Capital Securities
has occurred and is continuing.
(e) The Institutional Trustee shall continue to serve as
a Trustee until either:
(i) the Trust has been completely liquidated and
the proceeds of the liquidation distributed to the Holders
of the Securities pursuant to the terms of the Securities
and this Declaration; or
(ii) a Successor Institutional Trustee has been
appointed and has accepted that appointment in accordance
with Section 4.3.
(f) The Institutional Trustee shall have the legal power
to exercise all of the rights, powers and privileges of a Holder
of the Debentures under the Indenture and, if an Event of
Default occurs and is continuing, the Institutional Trustee may,
for the benefit of Holders of the Securities, enforce its rights
as holder of the Debentures subject to the rights of the Holders
pursuant to this Declaration (including Annex I) and the terms
of the Securities.
The Institutional Trustee must exercise the powers set
forth in this Section 2.8 in a manner that is consistent with
the purposes and functions of the Trust set out in Section 2.3,
and the Institutional Trustee shall not take any action that is
inconsistent with the purposes and functions of the Trust set
out in Section 2.3.
Section 2.9. Certain Duties and Responsibilities of the
Institutional Trustee and Administrators.
(a) The Institutional Trustee, before the occurrence of
any Event of Default and after the curing or waiving of all such
Events of Default that may have occurred, shall undertake to
perform only such duties as are specifically set forth in this
Declaration and no implied covenants shall be read into this
Declaration against the Institutional Trustee. In case an Event
of Default has occurred (that has not been cured or waived
pursuant to Section 6.7), the Institutional Trustee shall
exercise such of the rights and powers vested in it by this
Declaration, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(b) The duties and responsibilities of the Institutional
Trustee and the Administrators shall be as provided by this
Declaration. Notwithstanding the foregoing, no provision of
this Declaration shall require the Institutional Trustee or
Administrators to expend or risk their own funds or otherwise
incur any financial liability in the performance of any of their
duties hereunder, or in the exercise of any of their rights or
powers if it shall have reasonable grounds to believe that
repayment of such funds or adequate protection against such risk
of liability is not reasonably assured to it. Whether or not
therein expressly so provided, every provision of this
Declaration relating to the conduct or affecting the liability
of or affording protection to the Institutional Trustee or
Administrators shall be subject to the provisions of this
Article. Nothing in this Declaration shall be construed to
relieve an Administrator or the Institutional Trustee from
liability for its own negligent act, its own negligent failure
to act, or its own willful
13
misconduct. To the extent that, at law or in equity, the Institutional
Trustee or an Administrator has duties and liabilities relating to the
Trust or to the Holders, the Institutional Trustee or such Administrator
shall not be liable to the Trust or to any Holder for the
Institutional Trustee's or such Administrator's good faith
reliance on the provisions of this Declaration. The provisions
of this Declaration, to the extent that they restrict the duties
and liabilities of the Administrators or the Institutional
Trustee otherwise existing at law or in equity, are agreed by
the Sponsor and the Holders to replace such other duties and
liabilities of the Administrators or the Institutional Trustee.
(c) All payments made by the Institutional Trustee or a
Paying Agent in respect of the 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 Institutional Trustee or a
Paying Agent to make payments in accordance with the terms
hereof. Each Holder, by its acceptance of a 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 Institutional Trustee and
the Administrators are not personally liable to it for any
amount distributable in respect of any Security or for any other
liability in respect of any Security. This Section 2.9(c) does
not limit the liability of the Institutional Trustee expressly
set forth elsewhere in this Declaration.
(d) The Institutional Trustee shall not be liable for
its own acts or omissions hereunder except as a result of its
own negligent action, its own negligent failure to act, or its
own willful misconduct, except that:
(i) the Institutional Trustee shall not be liable
for any error of judgment made in good faith by an
Authorized Officer of the Institutional Trustee, unless it
shall be proved that the Institutional Trustee was
negligent in ascertaining the pertinent facts;
(ii) the Institutional Trustee shall not be liable
with respect to any action taken or omitted to be taken by
it in good faith in accordance with the direction of the
Holders of not less than a Majority in liquidation amount
of the Capital Securities or the Common Securities, as
applicable, relating to the time, method and place of
conducting any proceeding for any remedy available to the
Institutional Trustee, or exercising any trust or power
conferred upon the Institutional Trustee under this
Declaration;
(iii) the Institutional Trustee's sole duty with
respect to the custody, safekeeping and physical
preservation of the Debentures and the Property Account
shall be to deal with such property in a similar manner as
the Institutional Trustee deals with similar property for
its fiduciary accounts generally, subject to the
protections and limitations on liability afforded to the
Institutional Trustee under this Declaration;
(iv) the Institutional Trustee shall not be liable
for any interest on any money received by it except as it
may otherwise agree in writing with the Sponsor; and money
held by the Institutional Trustee need not be segregated
from other funds held by it except in relation to the
Property Account maintained by the Institutional Trustee
pursuant to Section 2.8(c)(i) and except to the extent
otherwise required by law; and
(v) the Institutional Trustee shall not be
responsible for monitoring the compliance by the
Administrators or the Sponsor with their respective duties
under this Declaration, nor shall the Institutional Trustee
be liable for any default or misconduct of the
Administrators or the Sponsor.
Section 2.10. Certain Rights of Institutional Trustee. Subject
to the provisions of Section 2.9:
14
(a) the Institutional Trustee may conclusively rely and
shall fully be protected in acting or refraining from acting in
good faith upon any resolution, opinion of counsel, certificate,
written representation of a Holder or transferee, certificate of
auditors or any other certificate, statement, instrument,
opinion, report, notice, request, 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, sent or presented by the proper party or
parties;
(b) if (i) in performing its duties under this
Declaration, the Institutional Trustee is required to decide
between alternative courses of action, (ii) in construing any of
the provisions of this Declaration, the Institutional Trustee
finds the same ambiguous or inconsistent with any other
provisions contained herein, or (iii) the Institutional Trustee
is unsure of the application of any provision of this
Declaration, then, except as to any matter as to which the
Holders of Capital Securities are entitled to vote under the
terms of this Declaration, the Institutional Trustee may deliver
a notice to the Sponsor requesting the Sponsor's written
instructions as to the course of action to be taken and the
Institutional Trustee shall take such action, or refrain from
taking such action, as the Institutional Trustee shall be
instructed in writing, in which event the Institutional Trustee
shall have no liability except for its own negligence or willful
misconduct;
(c) any direction or act of the Sponsor or the
Administrators contemplated by this Declaration shall be
sufficiently evidenced by an Officers' Certificate;
(d) whenever in the administration of this Declaration,
the Institutional Trustee shall deem it desirable that a matter
be proved or established before undertaking, suffering or
omitting any action hereunder, the Institutional Trustee (unless
other evidence is herein specifically prescribed) may request
and conclusively rely upon an Officers' Certificate as to
factual matters which, upon receipt of such request, shall be
promptly delivered by the Sponsor or the Administrators;
(e) the Institutional Trustee shall have no duty to see
to any recording, filing or registration of any instrument
(including any financing or continuation statement or any filing
under tax or securities laws) or any rerecording, refiling or
reregistration thereof;
(f) the Institutional Trustee may consult with counsel
of its selection (which counsel may be counsel to the Sponsor or
any of its Affiliates) 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
Institutional Trustee shall have the right at any time to seek
instructions concerning the administration of this Declaration
from any court of competent jurisdiction;
(g) the Institutional Trustee shall be under no
obligation to exercise any of the rights or powers vested in it
by this Declaration at the request or direction of any of the
Holders pursuant to this Declaration, unless such Holders shall
have offered to the Institutional Trustee security or indemnity
reasonably satisfactory to it against the costs, expenses and
liabilities which might be incurred by it in compliance with
such request or direction; provided, that nothing contained in
this Section 2.10(g) shall be taken to relieve the Institutional
Trustee, subject to Section 2.9(b), upon the occurrence of an
Event of Default (that has not been cured or waived pursuant to
Section 6.7), to exercise such of the rights and powers vested
in it by this Declaration, and use the same degree of care and
skill in their exercise, as a prudent person would exercise or
use under the circumstances in the conduct of his or her own
affairs;
(h) the Institutional Trustee shall not be bound to make
any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond, debenture, note
or other evidence of indebtedness or other paper or
15
document, unless requested in writing to do so by one or more Holders,
but the Institutional Trustee may make such further inquiry or
investigation into such facts or matters as it may see fit;
(i) the Institutional Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder
either directly or by or through its agents or attorneys and the
Institutional Trustee shall not be responsible for any
misconduct or negligence on the part of or for the supervision
of, any such agent or attorney appointed with due care by it
hereunder;
(j) whenever in the administration of this Declaration
the Institutional Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right or
taking any other action hereunder the Institutional Trustee
(i) may request instructions from the Holders of the Capital
Securities which instructions may only be given by the Holders
of the same proportion in liquidation amount of the Capital
Securities as would be entitled to direct the Institutional
Trustee under the terms of the Capital Securities in respect of
such remedy, right or action, (ii) may refrain from enforcing
such remedy or right or taking such other action until such
instructions are received, and (iii) shall be fully protected in
acting in accordance with such instructions;
(k) except as otherwise expressly provided in this
Declaration, the Institutional Trustee shall not be under any
obligation to take any action that is discretionary under the
provisions of this Declaration;
(l) when the Institutional Trustee incurs expenses or
renders services in connection with a Bankruptcy Event, such
expenses (including the fees and expenses of its 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;
(m) the Institutional Trustee shall not be charged with
knowledge of an Event of Default unless a Responsible Officer of
the Institutional Trustee obtains actual knowledge of such event
or the Institutional Trustee receives written notice of such
event from any Holder, the Sponsor or the Debenture Trustee;
(n) any action taken by the Institutional Trustee or its
agents hereunder shall bind the Trust and the Holders of the
Securities, and the signature of the Institutional Trustee or
its agents alone shall be sufficient and effective to perform
any such action and no third party shall be required to inquire
as to the authority of the Institutional Trustee to so act or as
to its compliance with any of the terms and provisions of this
Declaration, both of which shall be conclusively evidenced by
the Institutional Trustee's or its agent's taking such action;
and
(o) no provision of this Declaration shall be deemed to
impose any duty or obligation on the Institutional Trustee to
perform any act or acts or exercise any right, power, duty or
obligation conferred or imposed on it, in any jurisdiction in
which it shall be illegal, or in which the Institutional Trustee
shall be unqualified or incompetent in accordance with
applicable law, to perform any such act or acts, or to exercise
any such right, power, duty or obligation. No permissive power
or authority available to the Institutional Trustee shall be
construed to be a duty.
Section 2.11. Execution of Documents. Unless otherwise
determined in writing by the Institutional Trustee, and except
as otherwise required by the Statutory Trust Act, the
Institutional Trustee, or any one or more of the Administrators,
as the case may be, is authorized to execute on behalf of the
Trust any documents that the Institutional Trustee or the
Administrators, as the case may be, have the power and authority
to execute pursuant to Section 2.6.
16
Section 2.12. Not Responsible for Recitals or Issuance of
Securities. The recitals contained in this Declaration and the
Securities shall be taken as the statements of the Sponsor, and
the Institutional Trustee does not assume any responsibility for
their correctness. The Institutional Trustee makes no
representations as to the value or condition of the property of
the Trust or any part thereof. The Institutional Trustee makes
no representations as to the validity or sufficiency of this
Declaration, the Debentures or the Securities.
Section 2.13. Duration of Trust. The Trust, unless earlier
dissolved pursuant to the provisions of Article VII hereof,
shall be in existence for 35 years from the Closing Date.
Section 2.14. Mergers.
(a) The Trust may not 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
corporation or other body, except as described in Section
2.14(b) and (c) and except in connection with the liquidation of
the Trust and the distribution of the Debentures to Holders of
Securities pursuant to Section 7.1(a)(iv) of the Declaration or
Section 4 of Annex I.
(b) The Trust may, with the consent of the Institutional
Trustee and without the consent of the Holders of the Capital
Securities, consolidate, amalgamate, merge with or into, or be
replaced by a trust organized as such under the laws of any
state; provided that:
(i) if the Trust is not the surviving entity, such
successor entity (the "Successor Entity") either:
(A) expressly assumes all of the obligations of
the Trust under the Securities; or
(B) substitutes for the Securities other
securities having substantially the same terms as the
Securities (the "Successor Securities") so that the
Successor Securities rank the same as the Securities
rank with respect to Distributions and payments upon
Liquidation, redemption and otherwise;
(ii) the Sponsor expressly appoints a trustee of the
Successor Entity that possesses substantially the same
powers and duties as the Institutional Trustee as the
Holder of the Debentures;
(iii) such merger, consolidation, amalgamation
or replacement does not adversely affect the rights,
preferences and privileges of the Holders of the Securities
(including any Successor Securities) in any material
respect;
(iv) the Institutional Trustee receives written
confirmation from Moody's Investor Services, Inc. and any
other nationally recognized statistical rating organization
that rates securities issued by the initial purchaser of
the Capital Securities that it will not reduce or withdraw
the rating of any such securities because of such merger,
conversion, consolidation, amalgamation or replacement;
(v) such Successor Entity has a purpose
substantially identical to that of the Trust;
(vi) prior to such merger, consolidation,
amalgamation or replacement, the Trust has received an
opinion of a nationally recognized independent counsel to
the Trust experienced in such matters to the effect that:
17
(A) such merger, consolidation, amalgamation or
replacement does not adversely affect the rights,
preferences and privileges of the Holders of the
Securities (including any Successor Securities) in any
material respect;
(B) following such merger, consolidation,
amalgamation or replacement, neither the Trust nor the
Successor Entity will be required to register as an
Investment Company; and
(C) following such merger, consolidation,
amalgamation or replacement, the Trust (or the
Successor Entity) will continue to be classified as a
"grantor trust" for United States federal income tax
purposes;
(vii) the Sponsor guarantees the obligations of
such Successor Entity under the Successor Securities at
least to the extent provided by the Guarantee;
(viii) the Sponsor owns 100% of the common
securities of any Successor Entity; and
(ix) prior to such merger, consolidation,
amalgamation or replacement, the Institutional Trustee
shall have received an Officers' Certificate of the
Administrators and an opinion of counsel, each to the
effect that all conditions precedent under this Section
2.14(b) to such transaction have been satisfied.
(c) Notwithstanding Section 2.14(b), the Trust shall
not, except with the consent of Holders of 100% in aggregate
liquidation amount of the Securities, consolidate, amalgamate,
merge with or into, or be replaced by any other entity or permit
any other entity to consolidate, amalgamate, merge with or into,
or replace it if such consolidation, amalgamation, merger or
replacement would cause the Trust or Successor Entity to be
classified as other than a grantor trust for United States
federal income tax purposes.
ARTICLE III
SPONSOR
Section 3.1. Sponsor's Purchase of Common Securities. On the
Closing Date, the Sponsor will purchase all of the Common
Securities issued by the Trust in an amount at least equal to 3%
of the capital of the Trust, at the same time as the Capital
Securities are sold.
Section 3.2. Responsibilities of the Sponsor. In connection
with the issue and sale of the Capital Securities, the Sponsor
shall have the exclusive right and responsibility to engage in,
or direct the Administrators to engage in, the following
activities:
(a) to determine the States in which to take appropriate
action to qualify or register for sale all or part of the
Capital Securities and to do any and all such acts, other than
actions which must be taken by the Trust, and advise the Trust
of actions it must take, and prepare for execution and filing
any documents to be executed and filed by the Trust, as the
Sponsor deems necessary or advisable in order to comply with the
applicable laws of any such States; and
(b) to negotiate the terms of and/or execute on behalf
of the Trust, the Placement Agreement and other related
agreements providing for the sale of the Capital Securities.
18
Section 3.3. Expenses. In connection with the offering, sale
and issuance of the Debentures to the Trust and in connection
with the sale of the Securities by the Trust, the Sponsor, in
its capacity as Debenture Issuer, shall:
(a) pay all reasonable costs and expenses owing to the
Debenture Trustee pursuant to Section 6.6 of the Indenture;
(b) be responsible for and shall pay all debts and
obligations (other than with respect to the Securities) and all
costs and expenses of the Trust, the offering, sale and issuance
of the Securities (including fees to the placement agents in
connection therewith), the costs and expenses (including
reasonable counsel fees and expenses) of the Institutional
Trustee and the Administrators, the costs and expenses relating
to the operation of the Trust, including, without limitation,
costs and expenses of accountants, attorneys, statistical or
bookkeeping services, expenses for printing and engraving and
computing or accounting equipment, Paying Agents, Registrars,
Transfer Agents, duplicating, travel and telephone and other
telecommunications expenses and costs and expenses incurred in
connection with the acquisition, financing, and disposition of
Trust assets and the enforcement by the Institutional Trustee of
the rights of the Holders (for purposes of clarification, this
Section 3.3(b) does not contemplate the payment by the Sponsor
of acceptance or annual administration fees owing to the
Institutional Trustee pursuant to the services to be provided by
the Institutional Trustee under this Declaration or the fees and
expenses of the Institutional Trustee's counsel in connection
with the closing of the transactions contemplated by this
Declaration); and
(c) pay any and all taxes (other than United States
withholding taxes attributable to the Trust or its assets) and
all liabilities, costs and expenses with respect to such taxes
of the Trust.
The Sponsor's obligations under this Section 3.3 shall be
for the benefit of, and shall be enforceable by, any Person to
whom such debts, obligations, costs, expenses and taxes are owed
(a "Creditor") whether or not such Creditor has received notice
hereof. Any such Creditor may enforce the Sponsor's obligations
under this Section 3.3 directly against the Sponsor and the
Sponsor irrevocably waives any right or remedy to require that
any such Creditor take any action against the Trust or any other
Person before proceeding against the Sponsor. The Sponsor
agrees to execute such additional agreements as may be necessary
or desirable in order to give full effect to the provisions of
this Section 3.3.
Section 3.4. Right to Proceed. The Sponsor acknowledges the
rights of Holders to institute a Direct Action as set forth in
Section 2.8(d) hereto.
ARTICLE IV
INSTITUTIONAL TRUSTEE AND ADMINISTRATORS
Section 4.1. Institutional Trustee; Eligibility.
(a) There shall at all times be one Institutional Trustee which shall:
(i) not be an Affiliate of the Sponsor;
(ii) not offer or provide credit or credit
enhancement to the Trust; and
(iii) be a banking corporation or trust company
organized and doing business under the laws of the United
States of America or any state thereof or the District of
Columbia, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at
least 50 million U.S. dollars ($50,000,000.00), and subject
to supervision or
19
examination by Federal, state, or
District of Columbia authority. If such corporation
publishes reports of condition at least annually, pursuant
to law or to the requirements of the supervising or
examining authority referred to above, then for the
purposes of this Section 4.1(a)(iii), the combined capital
and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most
recent report of condition so published.
(b) If at any time the Institutional Trustee shall cease
to be eligible to so act under Section 4.1(a), the Institutional
Trustee shall immediately resign in the manner and with the
effect set forth in Section 4.3(a).
(c) If the Institutional Trustee has or shall acquire
any "conflicting interest" within the meaning of Section 310(b)
of the Trust Indenture Act of 1939, as amended, the
Institutional Trustee shall either eliminate such interest or
resign, to the extent and in the manner provided by, and subject
to this Declaration.
(d) The initial Institutional Trustee shall be U.S. Bank
National Association.
Section 4.2. Administrators. Each Administrator shall be a
U.S. Person, 21 years of age or older and authorized to bind the
Sponsor. The initial Administrators shall be Robert H. Young,
Paul M. Limbert and Brent E. Richmond. There shall at all times
be at least one Administrator. Except where a requirement for
action by a specific number of Administrators is expressly set
forth in this Declaration and except with respect to any action
the taking of which is the subject of a meeting of the
Administrators, any action required or permitted to be taken by
the Administrators may be taken by, and any power of the
Administrators may be exercised by, or with the consent of, any
one such Administrator.
Section 4.3. Appointment, Removal and Resignation of
Institutional Trustee and Administrators.
(a) Notwithstanding anything to the contrary in this
Declaration, no resignation or removal of the Institutional
Trustee and no appointment of a Successor Institutional Trustee
pursuant to this Article shall become effective until the
acceptance of appointment by the Successor Institutional Trustee
in accordance with the applicable requirements of this Section 4.3.
Subject to the immediately preceding paragraph, the
Institutional Trustee may resign at any time by giving written
notice thereof to the Holders of the Securities and by
appointing a Successor Institutional Trustee. Upon the
resignation of the Institutional Trustee, the Institutional
Trustee shall appoint a successor by requesting from at least
three Persons meeting the eligibility requirements, its expenses
and charges to serve as the successor Institutional Trustee on a
form provided by the Administrators, and selecting the Person
who agrees to the lowest expense and charges (the "Successor
Institutional Trustee"). If the instrument of acceptance by the
Successor Institutional Trustee required by this Section 4.3
shall not have been delivered to the Institutional Trustee
within 60 days after the giving of such notice of resignation or
delivery of the instrument of removal, the Institutional Trustee
may petition, at the expense of the Trust, any Federal, state or
District of Columbia court of competent jurisdiction for the
appointment of a Successor Institutional Trustee. Such court
may thereupon, after prescribing such notice, if any, as it may
deem proper, appoint a Successor Institutional Trustee. The
Institutional Trustee shall have no liability for the selection
of such successor pursuant to this Section 4.3.
The Institutional Trustee may be removed by the act of the
Holders of a Majority in liquidation amount of the Capital
Securities, delivered to the Institutional Trustee (in its
individual capacity and on behalf of the Trust) if an Event of
Default shall have occurred and be continuing. If the
Institutional Trustee shall be so removed, the Holders of
Capital Securities, by act of the Holders of a Majority in
liquidation amount of the Capital Securities then outstanding
delivered to the Institutional Trustee, shall
20
promptly appoint a Successor Institutional Trustee, and such
Successor Institutional Trustee shall comply with the applicable
requirements of this Section 4.3. If no Successor Institutional
Trustee shall have been so appointed by the Holders of a
Majority in liquidation amount of the Capital Securities and
accepted appointment in the manner required by this Section 4.3,
within 30 days after delivery of an instrument of removal, any
Holder who has been a Holder of the Securities for at least
6 months may, on behalf of himself and all others similarly
situated, petition any Federal, state or District of Columbia
court of competent jurisdiction for the appointment of the
Successor Institutional Trustee. Such court may thereupon,
after prescribing such notice, if any, as it may deem proper,
appoint a Successor Institutional Trustee.
The Institutional Trustee shall give notice of its
resignation and removal and each appointment of a Successor
Institutional Trustee to all Holders in the manner provided in
Section 13.1(d) and shall give notice to the Sponsor. Each
notice shall include the name of the Successor Institutional
Trustee and the address of its Corporate Trust Office.
(b) In case of the appointment hereunder of a Successor
Institutional Trustee, the retiring Institutional Trustee and
the Successor Institutional Trustee shall execute and deliver an
amendment hereto wherein the Successor Institutional Trustee
shall accept such appointment and which (i) shall contain such
provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, the Successor Institutional Trustee
all the rights, powers, trusts and duties of the retiring
Institutional Trustee with respect to the Securities and the
Trust and (ii) shall add to or change any of the provisions of
this Declaration as shall be necessary to provide for or
facilitate the administration of the Trust by more than one
Institutional Trustee, it being understood that nothing herein
or in such amendment shall constitute such Institutional
Trustees co-trustees and upon the execution and delivery of such
amendment the resignation or removal of the retiring
Institutional Trustee shall become effective to the extent
provided therein and each Successor Institutional Trustee,
without any further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the retiring
Institutional Trustee; but, on request of the Trust or any
Successor Institutional Trustee such retiring Institutional
Trustee shall duly assign, transfer and deliver to such
Successor Institutional Trustee all Trust Property, all proceeds
thereof and money held by such retiring Institutional Trustee
hereunder with respect to the Securities and the Trust.
(c) No Institutional Trustee shall be liable for the
acts or omissions to act of any Successor Institutional Trustee.
(d) The Holders of the Capital Securities will have no
right to vote to appoint, remove or replace the Administrators,
which voting rights are vested exclusively in the Holder of the
Common Securities.
Section 4.4. Institutional Trustee Vacancies. If the
Institutional Trustee ceases to hold office for any reason a
vacancy shall occur. A resolution certifying the existence of
such vacancy by the Institutional Trustee shall be conclusive
evidence of the existence of such vacancy. The vacancy shall be
filled with a trustee appointed in accordance with Section 4.3.
Section 4.5. Effect of Vacancies. The death, resignation,
retirement, removal, bankruptcy, dissolution, liquidation,
incompetence or incapacity to perform the duties of the
Institutional Trustee shall not operate to dissolve, terminate
or annul the Trust or terminate this Declaration.
Section 4.6. Meetings of the Institutional Trustee and the
Administrators. Meetings of the Administrators shall be held
from time to time upon the call of an Administrator. Regular
meetings of the Administrators may be held in person in the
United States or by telephone, at a place (if applicable) and
time fixed by resolution of the Administrators. Notice of any
in-person meetings of the Institutional
21
Trustee with the Administrators or meetings of the Administrators shall
be hand delivered or otherwise delivered in writing (including by
facsimile, with a hard copy by overnight courier) not less than
48 hours before such meeting. Notice of any telephonic meetings
of the Institutional Trustee with the Administrators or meetings
of the Administrators or any committee thereof shall be hand
delivered or otherwise delivered in writing (including by
facsimile, with a hard copy by overnight courier) not less than
24 hours before a meeting. Notices shall contain a brief
statement of the time, place and anticipated purposes of the
meeting. The presence (whether in person or by telephone) of
the Institutional Trustee or an Administrator, as the case may
be, at a meeting shall constitute a waiver of notice of such
meeting except where the Institutional Trustee or an
Administrator, as the case may be, attends a meeting for the
express purpose of objecting to the transaction of any activity
on the grounds that the meeting has not been lawfully called or
convened. Unless provided otherwise in this Declaration, any
action of the Institutional Trustee or the Administrators, as
the case may be, may be taken at a meeting by vote of the
Institutional Trustee or a majority vote of the Administrators
present (whether in person or by telephone) and eligible to vote
with respect to such matter, provided that a Quorum is present,
or without a meeting by the unanimous written consent of the
Institutional Trustee or the Administrators. Meetings of the
Institutional Trustee and the Administrators together shall be
held from time to time upon the call of the Institutional
Trustee or an Administrator.
Section 4.7. Delegation of Power.
(a) Any Administrator may, by power of attorney
consistent with applicable law, delegate to any other natural
person over the age of 21 that is a U.S. Person his or her power
for the purpose of executing any documents contemplated in
Section 2.6; and
(b) the Administrators shall have power to delegate from
time to time to such of their number the doing of such things
and the execution of such instruments either in the name of the
Trust or the names of the Administrators or otherwise as the
Administrators may deem expedient, to the extent such delegation
is not prohibited by applicable law or contrary to the
provisions of the Trust, as set forth herein.
Section 4.8. Conversion, Consolidation or Succession to
Business. Any Person into which the Institutional 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 the Institutional Trustee shall be a
party, or any Person succeeding to all or substantially all the
corporate trust business of the Institutional Trustee shall be
the successor of the Institutional Trustee hereunder, provided
such Person shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any
further act on the part of any of the parties hereto.
ARTICLE V
DISTRIBUTIONS
Section 5.1. Distributions. Holders shall receive
Distributions in accordance with the applicable terms of the
relevant Holder's Securities. Distributions shall be made on the
Capital Securities and the Common Securities in accordance with
the preferences set forth in their respective terms. If and to
the extent that the Debenture Issuer makes a payment of Interest
or any principal on the Debentures held by the Institutional
Trustee, the Institutional Trustee shall and is directed, to the
extent funds are available for that purpose, to make a
distribution (a "Distribution") of such amounts to Holders.
22
ARTICLE VI
ISSUANCE OF SECURITIES
Section 6.1. General Provisions Regarding Securities.
(a) The Administrators shall, on behalf of the Trust,
issue one series of capital securities substantially in the form
of Exhibit A-1 representing undivided beneficial interests in
the assets of the Trust having such terms as are set forth in
Annex I and one series of common securities representing
undivided beneficial interests in the assets of the Trust having
such terms as are set forth in Annex I. The Trust shall issue
no securities or other interests in the assets of the Trust
other than the Capital Securities and the Common Securities.
The Capital Securities rank pari passu to, and payment thereon
shall be made Pro Rata with, the Common Securities except that,
where an Event of Default has occurred and is continuing, the
rights of Holders of the Common Securities to payment in respect
of Distributions and payments upon liquidation, redemption and
otherwise are subordinated to the rights to payment of the
Holders of the Capital Securities as set forth in Annex I.
(b) The Certificates shall be signed on behalf of the
Trust by one or more Administrators. Such signature shall be the
facsimile or manual signature of any Administrator. In case any
Administrator of the Trust who shall have signed any of the
Securities shall cease to be such Administrator before the
Certificates so signed shall be delivered by the Trust, such
Certificates nevertheless may be delivered as though the person
who signed such Certificates had not ceased to be such
Administrator, and any Certificate may be signed on behalf of
the Trust by such persons who, at the actual date of execution
of such Security, shall be an Administrator of the Trust,
although at the date of the execution and delivery of the
Declaration any such person was not such an Administrator. A
Capital Security shall not be valid until authenticated by the
facsimile or manual signature of an Authorized Officer of the
Institutional Trustee. Such signature shall be conclusive
evidence that the Capital Security has been authenticated under
this Declaration. Upon written order of the Trust signed by one
Administrator, the Institutional Trustee shall authenticate the
Capital Securities for original issue. The Institutional
Trustee may appoint an authenticating agent that is a U.S.
Person acceptable to the Trust to authenticate the Capital
Securities. A Common Security need not be so authenticated.
(c) The consideration received by the Trust for the
issuance of the Securities shall constitute a contribution to
the capital of the Trust and shall not constitute a loan to the
Trust.
(d) Upon issuance of the Securities as provided in this
Declaration, the Securities so issued shall be deemed to be
validly issued, fully paid and, except as provided in
Section 9.1(b) with respect to the Common Securities, non-
assessable.
(e) Every Person, by virtue of having become a Holder in
accordance with the terms of this Declaration, shall be deemed
to have expressly assented and agreed to the terms of, and shall
be bound by, this Declaration and the Guarantee.
Section 6.2. Paying Agent, Transfer Agent and Registrar. The
Trust shall maintain in Hartford, Connecticut, an office or
agency where the Capital Securities may be presented for payment
("Paying Agent"), and an office or agency where Securities may
be presented for registration of transfer or exchange (the
"Transfer Agent"). The Trust shall keep or cause to be kept at
such office or agency a register for the purpose of registering
Securities, transfers and exchanges of Securities, such register
to be held by a registrar (the "Registrar"). The Administrators
may appoint the Paying Agent, the Registrar and the Transfer
Agent and may appoint one or more additional Paying Agents or
one or more co-Registrars, or one or more co-Transfer Agents in
such other locations as it shall determine. The term "Paying
Agent" includes any additional paying agent, the term
"Registrar" includes any additional registrar
23
or co-Registrar and the term "Transfer Agent" includes any additional
transfer agent. The Administrators may change any Paying Agent, Transfer
Agent or Registrar at any time without prior notice to any
Holder. The Administrators shall notify the Institutional
Trustee of the name and address of any Paying Agent, Transfer
Agent and Registrar not a party to this Declaration. The
Administrators hereby initially appoint the Institutional
Trustee to act as Paying Agent, Transfer Agent and Registrar for
the Capital Securities and the Common Securities. The
Institutional Trustee or any of its Affiliates in the United
States may act as Paying Agent, Transfer Agent or Registrar.
Section 6.3. Form and Dating. The Capital Securities and the
Institutional Trustee's certificate of authentication thereon
shall be substantially in the form of Exhibit A-1, and the
Common Securities shall be substantially in the form of
Exhibit A-2, each of which is hereby incorporated in and
expressly made a part of this Declaration. Certificates may be
typed, printed, lithographed or engraved or may be produced in
any other manner as is reasonably acceptable to the
Administrators, as conclusively evidenced by their execution
thereof. The Securities may have letters, numbers, notations or
other marks of identification or designation and such legends or
endorsements required by law, stock exchange rule, agreements to
which the Trust is subject if any, or usage (provided that any
such notation, legend or endorsement is in a form acceptable to
the Sponsor). The Trust at the direction of the Sponsor shall
furnish any such legend not contained in Exhibit A-1 to the
Institutional Trustee in writing. Each Capital Security shall
be dated on or before the date of its authentication. The terms
and provisions of the Securities set forth in Annex I and the
forms of Securities set forth in Exhibits A-1 and A-2 are part
of the terms of this Declaration and to the extent applicable,
the Institutional Trustee, the Administrators and the Sponsor,
by their execution and delivery of this Declaration, expressly
agree to such terms and provisions and to be bound thereby.
Capital Securities will be issued only in blocks having a stated
liquidation amount of not less than $100,000.00 and any multiple
of $1,000.00 in excess thereof.
The Capital Securities are being offered and sold by the
Trust pursuant to the Placement Agreement in definitive,
registered form without coupons and with the Restricted
Securities Legend.
Section 6.4. Mutilated, Destroyed, Lost or Stolen Certificates.
If:
(a) any mutilated Certificates should be surrendered to
the Registrar, or if the Registrar shall receive evidence to its
satisfaction of the destruction, loss or theft of any
Certificate; and
(b) there shall be delivered to the Registrar, the
Administrators and the Institutional Trustee such security or
indemnity as may be required by them to keep each of them
harmless;
then, in the absence of notice that such Certificate shall have
been acquired by a protected purchaser, an Administrator on
behalf of the Trust shall execute (and in the case of a Capital
Security Certificate, the Institutional Trustee shall
authenticate) and deliver, in exchange for or in lieu of any
such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of like denomination. In connection with the
issuance of any new Certificate under this Section 6.4, the
Registrar or the Administrators may require the payment of a sum
sufficient to cover any tax or other governmental charge that
may be imposed in connection therewith. Any duplicate
Certificate issued pursuant to this Section shall constitute
conclusive evidence of an ownership interest in the relevant
Securities, as if originally issued, whether or not the lost,
stolen or destroyed Certificate shall be found at any time.
Section 6.5. Temporary Securities. Until definitive
Securities are ready for delivery, the Administrators may
prepare and, in the case of the Capital Securities, the
Institutional Trustee shall authenticate, temporary Securities.
Temporary Securities shall be substantially in the form of
definitive Securities but may have variations that the
Administrators consider appropriate for temporary Securities.
24
Without unreasonable delay, the Administrators shall prepare
and, in the case of the Capital Securities, the Institutional
Trustee shall authenticate, definitive Securities in exchange
for temporary Securities.
Section 6.6. Cancellation. The Administrators at any time may
deliver Securities to the Institutional Trustee for
cancellation. The Registrar shall forward to the Institutional
Trustee any Securities surrendered to it for registration of
transfer, redemption or payment. The Institutional Trustee
shall promptly cancel all Securities surrendered for
registration of transfer, payment, replacement or cancellation
and shall dispose of such canceled Securities as the
Administrators direct. The Administrators may not issue new
Securities to replace Securities that have been paid or that
have been delivered to the Institutional Trustee for
cancellation.
Section 6.7. Rights of Holders; Waivers of Past Defaults.
(a) The legal title to the Trust Property is vested
exclusively in the Institutional Trustee (in its capacity as
such) in accordance with Section 2.5, and the Holders shall not
have any right or title therein other than the undivided
beneficial interest in the assets of the Trust conferred by
their 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 Securities shall be
personal property giving only the rights specifically set forth
therein and in this Declaration. The Securities shall have no
preemptive or similar rights.
(b) For so long as any Capital Securities remain
outstanding, if upon an Indenture Event of Default, the
Debenture Trustee fails or the holders of not less than 25% in
principal amount of the outstanding Debentures fail to declare
the principal of all of the Debentures to be immediately due and
payable, the Holders of a Majority in liquidation amount of the
Capital Securities then outstanding shall have the right to make
such declaration by a notice in writing to the Institutional
Trustee, the Sponsor and the Debenture Trustee.
At any time after a declaration of acceleration with
respect to the Debentures has been made and before a judgment or
decree for payment of the money due has been obtained by the
Debenture Trustee as provided in the Indenture, if the
Institutional Trustee, subject to the provisions hereof, fails
to annul any such declaration and waive such default, the
Holders of a Majority in liquidation amount of the Capital
Securities, by written notice to the Institutional Trustee, the
Sponsor and the Debenture Trustee, may rescind and annul such
declaration and its consequences if:
(i) the Debenture Issuer has paid or deposited with
the Debenture Trustee a sum sufficient to pay
(A) all overdue installments of interest on all
of the Debentures,
(B) any accrued Additional Interest on all of
the Debentures,
(C) the principal of (and premium, if any, on)
any Debentures that have become due otherwise than by
such declaration of acceleration and interest and
Additional Interest thereon at the rate borne by the
Debentures, and
(D) all sums paid or advanced by the Debenture
Trustee under the Indenture and the reasonable
compensation, expenses, disbursements and advances of
the Debenture Trustee and the Institutional Trustee,
their agents and counsel; and
(ii) all Events of Default with respect to the
Debentures, other than the non-payment of the principal of
the Debentures that has become due solely by such
acceleration, have been cured or waived as provided in
Section 5.7 of the Indenture.
25
The Holders of at least a Majority in liquidation amount of
the Capital Securities may, on behalf of the Holders of all the
Capital Securities, waive any past default under the Indenture
or any Indenture Event of Default, except a default or Indenture
Event of Default in the payment of principal or interest on the
Debentures (unless such default or Indenture Event of Default
has been cured and a sum sufficient to pay all matured
installments of interest and principal due otherwise than by
acceleration has been deposited with the Debenture Trustee) or a
default under the Indenture or an Indenture 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 Debenture. No such rescission shall affect
any subsequent default or impair any right consequent thereon.
Upon receipt by the Institutional Trustee of written notice
declaring such an acceleration, or rescission and annulment
thereof, by Holders of any part of the Capital Securities, a
record date shall be established for determining Holders of
outstanding Capital Securities entitled to join in such notice,
which record date shall be at the close of business on the day
the Institutional 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 90 days after such record
date, such notice of declaration of acceleration, or rescission
and annulment, as the case may be, shall automatically and
without further action by any Holder be canceled and of no
further effect. Nothing in this paragraph shall prevent a
Holder, or a proxy of a Holder, from giving, after expiration of
such 90-day period, a new written notice of declaration of
acceleration, or rescission and annulment thereof, as the case
may be, that is identical to a written notice 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 6.7.
(c) Except as otherwise provided in paragraphs (a) and
(b) of this Section 6.7, the Holders of at least a Majority in
liquidation amount of the Capital Securities may, on behalf of
the Holders of all the Capital Securities, waive any past
default or Event of Default and its consequences. Upon such
waiver, any such default or Event of Default shall cease to
exist, and any default or Event of Default arising therefrom
shall be deemed to have been cured, for every purpose of this
Declaration, but no such waiver shall extend to any subsequent
or other default or Event of Default or impair any right
consequent thereon.
ARTICLE VII
DISSOLUTION AND TERMINATION OF TRUST
Section 7.1. Dissolution and Termination of Trust.
(a) The Trust shall dissolve on the first to occur of:
(i) unless earlier dissolved, on June 26, 2038, the
expiration of the term of the Trust;
(ii) upon a Bankruptcy Event with respect to the
Sponsor, the Trust or the Debenture Issuer;
(iii) upon the filing of a certificate of
dissolution or its equivalent with respect to the Sponsor
(other than in connection with a merger, consolidation or
similar transaction not prohibited by the Indenture, this
Declaration or the Guarantee, as the case may be) or upon the
26
revocation of the charter of the Sponsor and the
expiration of 90 days after the date of revocation without
a reinstatement thereof;
(iv) upon the distribution of the Debentures to the
Holders of the Securities, upon exercise of the right of
the Holder of all of the outstanding Common Securities to
dissolve the Trust as provided in Annex I hereto;
(v) upon the entry of a decree of judicial
dissolution of the Holder of the Common Securities, the
Sponsor, the Trust or the Debenture Issuer;
(vi) when all of the Securities shall have been
called for redemption and the amounts necessary for
redemption thereof shall have been paid to the Holders in
accordance with the terms of the Securities; or
(vii) before the issuance of any Securities,
with the consent of the Institutional Trustee and the
Sponsor.
(b) As soon as is practicable after the occurrence of an
event referred to in Section 7.1(a), and after satisfaction of
liabilities to creditors of the Trust as required by applicable
law, including of the Statutory Trust Act, and subject to the
terms set forth in Annex I, the Institutional Trustee shall
terminate the Trust by filing a certificate of cancellation with
the Secretary of State of the State of Connecticut.
(c) The provisions of Section 2.9 and Article IX shall
survive the termination of the Trust.
ARTICLE VIII
TRANSFER OF INTERESTS
Section 8.1. General.
(a) Subject to Section 8.1(c), where Capital Securities
are presented to the Registrar or a co-registrar with a request
to register a transfer or to exchange them for an equal number
of Capital Securities represented by different certificates, the
Registrar shall register the transfer or make the exchange if
its requirements for such transactions are met. To permit
registrations of transfer and exchanges, the Trust shall issue
and the Institutional Trustee shall authenticate Capital
Securities at the Registrar's request.
(b) Upon issuance of the Common Securities, the Sponsor
shall acquire and retain beneficial and record ownership of the
Common Securities and for so long as the Securities remain
outstanding, the Sponsor shall maintain 100% ownership of the
Common Securities; provided, however, that any permitted
successor of the Sponsor, in its capacity as Debenture Issuer,
under the Indenture that is a U.S. Person may succeed to the
Sponsor's ownership of the Common Securities.
(c) Capital Securities may only be transferred, in whole
or in part, in accordance with the terms and conditions set
forth in this Declaration and in the terms of the Securities.
To the fullest extent permitted by applicable law, any transfer
or purported transfer of any Security not made in accordance
with this Declaration shall be null and void and will be deemed
to be of no legal effect whatsoever and any such transferee
shall be deemed not to be the holder of such Capital Securities
for any purpose, including but not limited to the receipt of
Distributions on such Capital Securities, and such transferee
shall be deemed to have no interest whatsoever in such Capital
Securities.
27
(d) The Registrar shall provide for the registration of
Securities and of transfers of Securities, which will be
effected without charge but only upon payment (with such
indemnity as the Registrar may require) in respect of any tax or
other governmental charges that may be imposed in relation to
it. Upon surrender for registration of transfer of any
Securities, the Registrar shall cause one or more new Securities
of the same tenor to be issued in the name of the designated
transferee or transferees. Every Security surrendered for
registration of transfer shall be accompanied by a written
instrument of transfer in form satisfactory to the Registrar
duly executed by the Holder or such Holder's attorney duly
authorized in writing. Each Security surrendered for
registration of transfer shall be canceled by the Institutional
Trustee pursuant to Section 6.6. A transferee of a Security
shall be entitled to the rights and subject to the obligations
of a Holder hereunder upon the receipt by such transferee of a
Security. By acceptance of a Security, each transferee shall be
deemed to have agreed to be bound by this Declaration.
(e) The Trust shall not be required (i) to issue,
register the transfer of, or exchange any Securities during a
period beginning at the opening of business 15 days before the
day of any selection of Securities for redemption and ending at
the close of business on the earliest date on which the relevant
notice of redemption is deemed to have been given to all Holders
of the Securities to be redeemed, or (ii) to register the
transfer or exchange of any Security so selected for redemption
in whole or in part, except the unredeemed portion of any
Security being redeemed in part.
Section 8.2. Transfer Procedures and Restrictions.
(a) The Capital Securities shall bear the Restricted
Securities Legend, which shall not be removed unless there is
delivered to the Trust such satisfactory evidence, which may
include an opinion of counsel satisfactory to the Trustee, as
may be reasonably required by the Trust, that neither the legend
nor the restrictions on transfer set forth therein are required
to ensure that transfers thereof comply with the provisions of
the Securities Act. Upon provision of such satisfactory
evidence, the Institutional Trustee, at the written direction of
the Trust, shall authenticate and deliver Capital Securities
that do not bear the legend.
(b) Except as permitted by Section 8.2(a), each Capital
Security shall bear a legend (the "Restricted Securities
Legend") in substantially the following form and a Capital
Security shall not be transferred except in compliance with such
legend, unless otherwise determined by the Sponsor, upon the
advice of counsel expert in securities law, in accordance with
applicable law:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), ANY STATE SECURITIES LAWS OR ANY OTHER
APPLICABLE SECURITIES LAW. NEITHER THIS SECURITY NOR
ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT
FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT AND ANY APPLICABLE STATE
SECURITIES LAWS. THE HOLDER OF THIS SECURITY BY ITS
ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE
TRANSFER THIS SECURITY ONLY (A) TO THE SPONSOR OR THE
TRUST, (B) PURSUANT TO A REGISTRATION STATEMENT THAT
HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT,
(C) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS
A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A SO LONG AS THIS
SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A
IN ACCORDANCE WITH RULE 144A, (D) TO A
28
NON-U.S. PERSON IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH
RULE 903 OR RULE 904 (AS APPLICABLE) OF REGULATION S UNDER THE
SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (A) OF
RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING
THIS CAPITAL SECURITY FOR ITS OWN ACCOUNT, OR FOR THE
ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR,
FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR
OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN
VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO
ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE
SPONSOR'S AND THE TRUST'S RIGHT PRIOR TO ANY SUCH
OFFER, SALE OR TRANSFER TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM IN ACCORDANCE
WITH THE DECLARATION OF TRUST, A COPY OF WHICH MAY BE
OBTAINED FROM THE SPONSOR OR THE TRUST. HEDGING
TRANSACTIONS INVOLVING THIS SECURITY MAY NOT BE
CONDUCTED UNLESS IN COMPLIANCE WITH THE SECURITIES ACT.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE
HEREOF 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 THE SECURITIES OR ANY
INTEREST THEREIN, UNLESS SUCH PURCHASER OR HOLDER IS
ELIGIBLE FOR EXEMPTIVE RELIEF AVAILABLE UNDER U.S.
DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS
EXEMPTION 96-23, 95-60, 91-38, 90-1 OR 84-14 OR
ANOTHER APPLICABLE EXEMPTION OR ITS PURCHASE AND
HOLDING OF THIS SECURITY IS NOT PROHIBITED BY SECTION
406 OF ERISA OR SECTION 4975 OF THE CODE WITH RESPECT
TO SUCH PURCHASE OR HOLDING. ANY PURCHASER OR HOLDER
OF THE SECURITIES OR ANY INTEREST THEREIN WILL BE
DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING
THEREOF THAT EITHER (i) 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, OR (ii) SUCH
PURCHASE WILL NOT RESULT IN A PROHIBITED TRANSACTION
UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE
FOR WHICH THERE IS NO APPLICABLE STATUTORY OR
ADMINISTRATIVE EXEMPTION.
THIS SECURITY WILL BE ISSUED AND MAY BE
TRANSFERRED ONLY IN BLOCKS HAVING A LIQUIDATION AMOUNT
OF NOT LESS THAN $100,000.00 (100 SECURITIES) AND
MULTIPLES OF $1,000.00 IN EXCESS THEREOF. ANY
ATTEMPTED TRANSFER OF SECURITIES IN A
29
BLOCK HAVING A LIQUIDATION AMOUNT OF LESS THAN $100,000.00
SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER.
THE HOLDER OF THIS SECURITY AGREES THAT IT WILL
COMPLY WITH THE FOREGOING RESTRICTIONS.
(c) To permit registrations of transfers and exchanges,
the Trust shall execute and the Institutional Trustee shall
authenticate Capital Securities at the Registrar's request.
(d) Registrations of transfers or exchanges will be
effected without charge, but only upon payment (with such
indemnity as the Registrar or the Sponsor may require) in
respect of any tax or other governmental charge that may be
imposed in relation to it.
(e) All Capital Securities issued upon any registration
of transfer or exchange pursuant to the terms of this
Declaration shall evidence the same security and shall be
entitled to the same benefits under this Declaration as the
Capital Securities surrendered upon such registration of
transfer or exchange.
Section 8.3. Deemed Security Holders. The Trust, the
Administrators, the Institutional Trustee, the Paying Agent, the
Transfer Agent or the Registrar may treat the Person in whose
name any Certificate shall be registered on the books and
records of the Trust as the sole holder of such Certificate and
of the Securities represented by such Certificate for purposes
of receiving Distributions and for all other purposes whatsoever
and, accordingly, shall not be bound to recognize any equitable
or other claim to or interest in such Certificate or in the
Securities represented by such Certificate on the part of any
Person, whether or not the Trust, the Administrators, the
Institutional Trustee, the Paying Agent, the Transfer Agent or
the Registrar shall have actual or other notice thereof.
ARTICLE IX
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, INSTITUTIONAL TRUSTEE OR OTHERS
Section 9.1. Liability.
(a) Except as expressly set forth in this Declaration,
the Guarantee and the terms of the Securities, the Sponsor shall
not be:
(i) personally liable for the return of any portion
of the capital contributions (or any return thereon) of the
Holders of the Securities which shall be made solely from
assets of the Trust; or
(ii) required to pay to the Trust or to any Holder
of the Securities any deficit upon dissolution of the Trust
or otherwise.
(b) The Holder of the Common Securities shall be liable
for all of the debts and obligations of the Trust (other than
with respect to the Securities) to the extent not satisfied out
of the Trust's assets.
(c) Pursuant to the Statutory Trust Act, the Holders of
the Capital Securities shall be entitled to the same limitation
of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation
Law of the State of Connecticut.
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Section 9.2. Exculpation.
(a) No Indemnified Person shall be liable, responsible
or accountable in damages or otherwise to the Trust or any
Covered Person for any loss, damage or claim incurred by reason
of any act or omission performed or omitted by such Indemnified
Person in good faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of
the authority conferred on such Indemnified Person by this
Declaration or by law, except that an Indemnified Person shall
be liable for any such loss, damage or claim incurred by reason
of such Indemnified Person's negligence or willful misconduct
with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in
relying in good faith upon the records of the Trust and upon
such information, opinions, reports or statements presented to
the Trust by any Person as to matters the Indemnified Person
reasonably believes are within such other Person's professional
or expert competence and, if selected by such Indemnified
Person, has been selected by such Indemnified Person with
reasonable care by or on behalf of the Trust, including
information, opinions, reports or statements as to the value and
amount of the assets, liabilities, profits, losses, or any other
facts pertinent to the existence and amount of assets from which
Distributions to Holders of Securities might properly be paid.
Section 9.3. Fiduciary Duty.
(a) To the extent that, at law or in equity, an
Indemnified Person has duties (including fiduciary duties) and
liabilities relating thereto to the Trust or to any other
Covered Person, an Indemnified Person acting under this
Declaration shall not be liable to the Trust or to any other
Covered Person for its good faith reliance on the provisions of
this Declaration. The provisions of this Declaration, to the
extent that they restrict the duties and liabilities of an
Indemnified Person otherwise existing at law or in equity, are
agreed by the parties hereto to replace such other duties and
liabilities of the Indemnified Person.
(b) Whenever in this Declaration an Indemnified Person
is permitted or required to make a decision:
(i) in its "discretion" or under a grant of similar
authority, the Indemnified Person shall be entitled to
consider such interests and factors as it desires,
including its own interests, and shall have no duty or
obligation to give any consideration to any interest of or
factors affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express
standard, the Indemnified Person shall act under such
express standard and shall not be subject to any other or
different standard imposed by this Declaration or by
applicable law.
Section 9.4. Indemnification.
(a) The Sponsor shall indemnify, to the full extent
permitted by law, any Indemnified Person who was or is a party
or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action
by or in the right of the Trust) arising out of or in connection
with the acceptance or administration of this Declaration by
reason of the fact that he is or was an Indemnified Person
against expenses (including reasonable attorneys' fees and
expenses), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the
best interests of the Trust, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his
conduct was
31
unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that the Indemnified Person did not act in
good faith and in a manner which he reasonably believed to be in
or not opposed to the best interests of the Trust, and, with
respect to any criminal action or proceeding, had reasonable
cause to believe that his conduct was unlawful.
(b) The Sponsor shall indemnify, to the full extent
permitted by law, any Indemnified Person who was or is a party
or is threatened to be made a party to any threatened, pending
or completed action or suit by or in the right of the Trust to
procure a judgment in its favor arising out of or in connection
with the acceptance or administration of this Declaration by
reason of the fact that he is or was an Indemnified Person
against expenses (including reasonable attorneys' fees and
expenses) actually and reasonably incurred by him in connection
with the defense or settlement of such action or suit if he
acted in good faith and in a manner he reasonably believed to be
in or not opposed to the best interests of the Trust; provided,
however, that no such indemnification shall be made in respect
of any claim, issue or matter as to which such Indemnified
Person shall have been adjudged to be liable to the Trust unless
and only to the extent that the court in which such action or
suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which such court shall
deem proper.
(c) To the extent that an Indemnified Person shall be
successful on the merits or otherwise (including dismissal of an
action without prejudice or the settlement of an action without
admission of liability) in defense of any action, suit or
proceeding referred to in paragraphs (a) and (b) of this Section
9.4, or in defense of any claim, issue or matter therein, he
shall be indemnified, to the full extent permitted by law,
against expenses (including attorneys' fees and expenses)
actually and reasonably incurred by him in connection therewith.
(d) Any indemnification of an Administrator under
paragraphs (a) and (b) of this Section 9.4 (unless ordered by a
court) shall be made by the Sponsor only as authorized in the
specific case upon a determination that indemnification of the
Indemnified Person is proper in the circumstances because he has
met the applicable standard of conduct set forth in
paragraphs (a) and (b). Such determination shall be made (i) by
the Administrators by a majority vote of a Quorum consisting of
such Administrators who were not parties to such action, suit or
proceeding, (ii) if such a Quorum is not obtainable, or, even if
obtainable, if a Quorum of disinterested Administrators so
directs, by independent legal counsel in a written opinion, or
(iii) by the Common Security Holder of the Trust.
(e) To the fullest extent permitted by law, expenses
(including reasonable attorneys' fees and expenses) incurred by
an Indemnified Person in defending a civil, criminal,
administrative or investigative action, suit or proceeding
referred to in paragraphs (a) and (b) of this Section 9.4 shall
be paid by the Sponsor in advance of the final disposition of
such action, suit or proceeding upon receipt of an undertaking
by or on behalf of such Indemnified Person to repay such amount
if it shall ultimately be determined that he is not entitled to
be indemnified by the Sponsor as authorized in this Section 9.4.
Notwithstanding the foregoing, no advance shall be made by the
Sponsor if a determination is reasonably and promptly made
(i) by the Administrators by a majority vote of a Quorum of
disinterested Administrators, (ii) if such a Quorum is not
obtainable, or, even if obtainable, if a quorum of disinterested
Administrators so directs, by independent legal counsel in a
written opinion or (iii) by the Common Security Holder of the
Trust, that, based upon the facts known to the Administrators,
counsel or the Common Security Holder at the time such
determination is made, such Indemnified Person acted in bad
faith or in a manner that such Indemnified Person did not
believe to be in the best interests of the Trust, or, with
respect to any criminal proceeding, that such Indemnified Person
believed or had reasonable cause to believe his conduct was
unlawful. In no event shall any advance be made in instances
where the Administrators, independent legal counsel or the
Common Security Holder reasonably determine that
32
such Indemnified Person deliberately breached his duty to the Trust
or its Common or Capital Security Holders.
(f) The Institutional Trustee, at the sole cost and
expense of the Sponsor, retains the right to representation by
counsel of its own choosing in any action, suit or any other
proceeding for which it is indemnified under paragraphs (a) and
(b) of this Section 9.4, without affecting its right to
indemnification hereunder or waiving any rights afforded to it
under this Declaration or applicable law.
(g) The indemnification and advancement of expenses
provided by, or granted pursuant to, the other paragraphs of
this Section 9.4 shall not be deemed exclusive of any other
rights to which those seeking indemnification and advancement of
expenses may be entitled under any agreement, vote of
stockholders or disinterested directors of the Sponsor or
Capital Security Holders of the Trust or otherwise, both as to
action in his official capacity and as to action in another
capacity while holding such office. All rights to
indemnification under this Section 9.4 shall be deemed to be
provided by a contract between the Sponsor and each Indemnified
Person who serves in such capacity at any time while this
Section 9.4 is in effect. Any repeal or modification of this
Section 9.4 shall not affect any rights or obligations then
existing.
(h) The Sponsor or the Trust may purchase and maintain
insurance on behalf of any Person who is or was an Indemnified
Person against any liability asserted against him and incurred
by him in any such capacity, or arising out of his status as
such, whether or not the Sponsor would have the power to
indemnify him against such liability under the provisions of
this Section 9.4.
(i) For purposes of this Section 9.4, references to "the
Trust" shall include, in addition to the resulting or surviving
entity, any constituent entity (including any constituent of a
constituent) absorbed in a consolidation or merger, so that any
Person who is or was a director, trustee, officer or employee of
such constituent entity, or is or was serving at the request of
such constituent entity as a director, trustee, officer,
employee or agent of another entity, shall stand in the same
position under the provisions of this Section 9.4 with respect
to the resulting or surviving entity as he would have with
respect to such constituent entity if its separate existence had
continued.
(j) The indemnification and advancement of expenses
provided by, or granted pursuant to, this Section 9.4 shall,
unless otherwise provided when authorized or ratified,
(i) continue as to a Person who has ceased to be an Indemnified
Person and shall inure to the benefit of the heirs, executors
and administrators of such a Person; and (ii) survive the
termination or expiration of this Declaration or the earlier
removal or resignation of an Indemnified Person.
Section 9.5. Outside Businesses. Any Covered Person, the
Sponsor and the Institutional Trustee may engage in or possess
an interest in other business ventures of any nature or
description, independently or with others, similar or dissimilar
to the business of the Trust, and the Trust and the Holders of
Securities shall have no rights by virtue of this Declaration in
and to such independent ventures or the income or profits
derived therefrom, and the pursuit of any such venture, even if
competitive with the business of the Trust, shall not be deemed
wrongful or improper. None of any Covered Person, the Sponsor
or the Institutional Trustee shall be obligated to present any
particular investment or other opportunity to the Trust even if
such opportunity is of a character that, if presented to the
Trust, could be taken by the Trust, and any Covered Person, the
Sponsor and the Institutional Trustee shall have the right to
take for its own account (individually or as a partner or
fiduciary) or to recommend to others any such particular
investment or other opportunity. Any Covered Person and the
Institutional Trustee may engage or be interested in any
financial or other transaction with the Sponsor or any Affiliate
of the Sponsor, or may act as depositary for, trustee or agent
for, or act on any committee or body of holders of, securities
or other obligations of the Sponsor or its Affiliates.
33
Section 9.6. Compensation; Fee. The Sponsor agrees:
(a) to pay to the Institutional Trustee from time to
time such compensation for all services rendered by it hereunder
as the parties shall agree 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); and
(b) except as otherwise expressly provided herein, to
reimburse the Institutional Trustee upon request for all
reasonable expenses, disbursements and advances incurred or made
by the Institutional Trustee in accordance with any provision of
this Declaration (including the reasonable compensation and the
expenses and disbursements of their respective agents and
counsel), except any such expense, disbursement or advance as
may be attributable to its negligence, bad faith or willful
misconduct.
The provisions of this Section 9.6 shall survive the
dissolution of the Trust and the termination of this Declaration
and the removal or resignation of the Institutional Trustee.
No Institutional Trustee may claim any lien or charge on
any property of the Trust as a result of any amount due pursuant
to this Section 9.6.
ARTICLE X
ACCOUNTING
Section 10.1. Fiscal Year. The fiscal year ("Fiscal Year") of
the Trust shall be the calendar year, or such other year as is
required by the Code.
Section 10.2. Certain Accounting Matters.
(a) At all times during the existence of the Trust, the
Administrators 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, at the Sponsor's expense,
in accordance with generally accepted accounting principles,
consistently applied. The books of account and the records of
the Trust shall be examined by and reported upon (either
separately or as part of the Sponsor's regularly prepared
consolidated financial report) as of the end of each Fiscal Year
of the Trust by a firm of independent certified public
accountants selected by the Administrators.
(b) The Administrators shall cause to be duly prepared
and delivered to each of the Holders of Securities Form 1099 or
such other annual United States federal income tax information
statement required by the Code, containing such information with
regard to the Securities held by each Holder as is required by
the Code and the Treasury Regulations. Notwithstanding any
right under the Code to deliver any such statement at a later
date, the Administrators shall endeavor to deliver all such
statements within 30 days after the end of each Fiscal Year of
the Trust.
(c) The Administrators, at the Sponsor's expense, shall
cause to be duly prepared at the principal office of the Sponsor
in the United States, as `United States' is defined in
Section 7701(a)(9) of the Code (or at the principal office of
the Trust if the Sponsor has no such principal office in the
United States), and filed an annual United States federal income
tax return on a Form 1041 or such other form required by United
States federal income tax law, and any other annual income tax
returns required to be filed by the Administrators on behalf of
the Trust with any state or local taxing authority.
34
Section 10.3. Banking. The Trust shall maintain in the United
States, as defined for purposes of Treasury Regulations section
301.7701-7, one or more bank accounts in the name and for the
sole benefit of the Trust; provided, however, that all payments
of funds in respect of the Debentures held by the Institutional
Trustee shall be made directly to the Property Account and no
other funds of the Trust shall be deposited in the Property
Account. The sole signatories for such accounts (including the
Property Account) shall be designated by the Institutional
Trustee.
Section 10.4. Withholding. The Institutional Trustee or any
Paying Agent and the Administrators shall comply with all
withholding requirements under United States federal, state and
local law. The Institutional Trustee or any Paying Agent shall
request, and each Holder shall provide to the Institutional
Trustee or any Paying Agent, such forms or certificates as are
necessary to establish an exemption from withholding with
respect to the Holder, and any representations and forms as
shall reasonably be requested by the Institutional Trustee or
any Paying Agent to assist it in determining the extent of, and
in fulfilling, its withholding obligations. The Administrators
shall file required forms with applicable jurisdictions and,
unless an exemption from withholding is properly established by
a Holder, shall remit amounts withheld with respect to the
Holder to applicable jurisdictions. To the extent that the
Institutional Trustee or any Paying Agent is required to
withhold and pay over any amounts to any authority with respect
to distributions or allocations to any Holder, the amount
withheld shall be deemed to be a Distribution in the amount of
the withholding to the Holder. In the event of any claimed
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
Institutional Trustee or any Paying Agent may reduce subsequent
Distributions by the amount of such withholding.
ARTICLE XI
AMENDMENTS AND MEETINGS
Section 11.1. Amendments.
(a) Except as otherwise provided in this Declaration or
by any applicable terms of the Securities, this Declaration may
only be amended by a written instrument approved and executed by
the Institutional Trustee.
(b) Notwithstanding any other provision of this
Article XI, an amendment may be made, and any such purported
amendment shall be valid and effective only if:
(i) the Institutional Trustee shall have first received
(A) an Officers' Certificate from each of the
Trust and the Sponsor that such amendment is permitted
by, and conforms to, the terms of this Declaration
(including the terms of the Securities); and
(B) an opinion of counsel (who may be counsel to
the Sponsor or the Trust) that such amendment is
permitted by, and conforms to, the terms of this
Declaration (including the terms of the Securities);
and
(ii) the result of such amendment would not be to
(A) cause the Trust to cease to be classified
for purposes of United States federal income taxation
as a grantor trust; or
35
(B) cause the Trust to be deemed to be an
Investment Company required to be registered under the
Investment Company Act.
(c) Except as provided in Section 11.1(d), (e) or (h),
no amendment shall be made, and any such purported amendment
shall be void and ineffective, unless the Holders of a Majority
in liquidation amount of the Capital Securities shall have
consented to such amendment.
(d) In addition to and notwithstanding any other
provision in this Declaration, without the consent of each
affected Holder, this Declaration may not be amended to
(i) change the amount or timing of any Distribution on the
Securities or otherwise adversely affect the amount of any
Distribution required to be made in respect of the Securities as
of a specified date or change any conversion or exchange
provisions or (ii) restrict the right of a Holder to institute
suit for the enforcement of any such payment on or after such
date.
(e) Sections 9.1(b) and 9.1(c) and this Section 11.1
shall not be amended without the consent of all of the Holders
of the Securities.
(f) Article III shall not be amended without the consent
of the Holders of a Majority in liquidation amount of the Common
Securities.
(g) The rights of the Holders of the Capital Securities
under Article IV to appoint and remove the Institutional Trustee
shall not be amended without the consent of the Holders of a
Majority in liquidation amount of the Capital Securities.
(h) This Declaration may be amended by the Institutional
Trustee and the Holders of a Majority in liquidation amount of
the Common Securities without the consent of the Holders of the
Capital Securities to:
(i) cure any ambiguity;
(ii) correct or supplement any provision in this
Declaration that may be defective or inconsistent with any
other provision of this Declaration;
(iii) add to the covenants, restrictions or
obligations of the Sponsor; or
(iv) modify, eliminate or add to any provision of
this Declaration to such extent as may be necessary to
ensure that the Trust will be classified for United States
federal income tax purposes at all times as a grantor trust
and will not be required to register as an Investment
Company (including without limitation to conform to any
change in Rule 3a-5, Rule 3a-7 or any other applicable rule
under the Investment Company Act or written change in
interpretation or application thereof by any legislative
body, court, government agency or regulatory authority)
which amendment does not have a material adverse effect on
the rights, preferences or privileges of the Holders of
Securities;
provided, however, that no such modification, elimination
or addition referred to in clauses (i), (ii), (iii) or (iv)
shall adversely affect in any material respect the powers,
preferences or special rights of Holders of Capital Securities.
Section 11.2. Meetings of the Holders of Securities; Action by
Written Consent.
(a) Meetings of the Holders of any class of Securities
may be called at any time by the Administrators (or as provided
n the terms of the Securities) to consider and act on any matter on which
36
Holders of such class of Securities are entitled
to act under the terms of this Declaration or the terms of the
Securities. The Administrators shall call a meeting of the
Holders of such class if directed to do so by the Holders of at
least 10% in liquidation amount of such class of Securities.
Such direction shall be given by delivering to the
Administrators one or more calls in a writing stating that the
signing Holders of the Securities wish to call a meeting and
indicating the general or specific purpose for which the meeting
is to be called. Any Holders of the Securities calling a
meeting shall specify in writing the Certificates held by the
Holders of the Securities exercising the right to call a meeting
and only those Securities represented by such Certificates shall
be counted for purposes of determining whether the required
percentage set forth in the second sentence of this paragraph
has been met.
(b) Except to the extent otherwise provided in the terms
of the Securities, the following provisions shall apply to
meetings of Holders of the Securities:
(i) notice of any such meeting shall be given to
all the Holders of the Securities having a right to vote
thereat at least 7 days and not more than 60 days before
the date of such meeting. Whenever a vote, consent or
approval of the Holders of the Securities is permitted or
required under this Declaration, such vote, consent or
approval may be given at a meeting of the Holders of the
Securities. Any action that may be taken at a meeting of
the Holders of the Securities may be taken without a
meeting if a consent in writing setting forth the action so
taken is signed by the Holders of the Securities owning not
less than the minimum amount of Securities in liquidation
amount that would be necessary to authorize or take such
action at a meeting at which all Holders of the Securities
having a right to vote thereon were present and voting.
Prompt notice of the taking of action without a meeting
shall be given to the Holders of the Securities entitled to
vote who have not consented in writing. The Administrators
may specify that any written ballot submitted to the
Holders of the Securities for the purpose of taking any
action without a meeting shall be returned to the Trust
within the time specified by the Administrators;
(ii) each Holder of a Security may authorize any
Person to act for it by proxy on all matters in which a
Holder of Securities is entitled to participate, including
waiving notice of any meeting, or voting or participating
at a meeting. No proxy shall be valid after the expiration
of 11 months from the date thereof unless otherwise
provided in the proxy. Every proxy shall be revocable at
the pleasure of the Holder of the Securities executing it.
Except as otherwise provided herein, all matters relating
to the giving, voting or validity of proxies shall be
governed by the General Corporation Law of the State of
Connecticut relating to proxies, and judicial
interpretations thereunder, as if the Trust were a
Connecticut corporation and the Holders of the Securities
were stockholders of a Connecticut corporation; each
meeting of the Holders of the Securities shall be conducted
by the Administrators or by such other Person that the
Administrators may designate; and
(iii) unless the Statutory Trust Act, this
Declaration, or the terms of the Securities otherwise
provides, the Administrators, in their sole discretion,
shall establish all other provisions relating to meetings
of Holders of Securities, including notice of the time,
place or purpose of any meeting at which any matter is to
be voted on by any Holders of the Securities, waiver of any
such notice, action by consent without a meeting, the
establishment of a record date, quorum requirements, voting
in person or by proxy or any other matter with respect to
the exercise of any such right to vote; provided, however,
that each meeting shall be conducted in the United States
(as that term is defined in Treasury Regulations section
301.7701-7).
37
ARTICLE XII
REPRESENTATIONS OF INSTITUTIONAL TRUSTEE
Section 12.1. Representations and Warranties of Institutional
Trustee. The initial Institutional Trustee represents and
warrants to the Trust and to the Sponsor at the date of this
Declaration, and each Successor Institutional Trustee represents
and warrants to the Trust and the Sponsor at the time of the
Successor Institutional Trustee's acceptance of its appointment
as Institutional Trustee, that:
(a) the Institutional Trustee is a national banking
association with trust powers, duly organized and validly
existing under the laws of the United States of America with
trust power and authority to execute and deliver, and to carry
out and perform its obligations under the terms of, this
Declaration;
(b) the execution, delivery and performance by the
Institutional Trustee of this Declaration has been duly
authorized by all necessary corporate action on the part of the
Institutional Trustee. This Declaration has been duly executed
and delivered by the Institutional Trustee, and it constitutes a
legal, valid and binding obligation of the Institutional
Trustee, enforceable against it in accordance with its terms,
subject to applicable bankruptcy, reorganization, moratorium,
insolvency, and other similar laws affecting creditors' rights
generally and to general principles of equity (regardless of
whether considered in a proceeding in equity or at law);
(c) the execution, delivery and performance of this
Declaration by the Institutional Trustee does not conflict with
or constitute a breach of the charter or by-laws of the
Institutional Trustee; and
(d) no consent, approval or authorization of, or
registration with or notice to, any state or federal banking
authority is required for the execution, delivery or performance
by the Institutional Trustee of this Declaration.
ARTICLE XIII
MISCELLANEOUS
Section 13.1. Notices. All notices provided for in this
Declaration shall be in writing, duly signed by the party giving
such notice, and shall be delivered, telecopied (which telecopy
shall be followed by notice delivered or mailed by first class
mail) or mailed by first class mail, as follows:
(a) if given to the Trust, in care of the Administrators
at the Trust's mailing address set forth below (or such other
address as the Trust may give notice of to the Holders of the
Securities):
Wesbanco, Inc. Capital Statutory Trust III
c/o Wesbanco, Inc.
One Bank Plaza
Wheeling, West Virginia 26003
Attention: Robert H. Young
Telecopy: 304-234-9450
(b) if given to the Institutional Trustee, at the
Institutional Trustee's mailing address set forth below (or such
other address as the Institutional Trustee may give notice of to
the Holders of the Securities):
38
U.S. Bank National Association
225 Asylum Street, Goodwin Square
Hartford, Connecticut 06103
Attention: Vice President, Corporate Trust Services Division
Telecopy: 860-241-6889
With a copy to:
U.S. Bank National Association
1 Federal Street - 3rd Floor
Boston, Massachusetts 02110
Attention: Paul D. Allen, Corporate Trust Services Division
Telecopy: 617-603-6665
(c) if given to the Holder of the Common Securities, at
the mailing address of the Sponsor set forth below (or such
other address as the Holder of the Common Securities may give
notice of to the Trust):
Wesbanco, Inc.
One Bank Plaza
Wheeling, West Virginia 26003
Attention: Robert H. Young
Telecopy: 304-234-9450
(d) if given to any other Holder, at the address set
forth on the books and records of the Trust.
All such notices shall be deemed to have been given when
received in person, telecopied with receipt confirmed, or mailed
by first class mail, postage prepaid except that if a notice or
other document is refused delivery or cannot be delivered
because of a changed address of which no notice was given, such
notice or other document shall be deemed to have been delivered
on the date of such refusal or inability to deliver.
Section 13.2. Governing Law. This Declaration and the rights
of the parties hereunder shall be governed by and interpreted in
accordance with the law of the State of Connecticut and all
rights and remedies shall be governed by such laws without
regard to the principles of conflict of laws of the State of
Connecticut or any other jurisdiction that would call for the
application of the law of any jurisdiction other than the State
of Connecticut; provided, however, that there shall not be
applicable to the Trust, the Institutional Trustee or this
Declaration any provision of the laws (statutory or common) of
the State of Connecticut pertaining to trusts that relate to or
regulate, in a manner inconsistent with the terms hereof (a) the
filing with any court or governmental body or agency of trustee
accounts or schedules of trustee fees and charges,
(b) affirmative requirements to post bonds for trustees,
officers, agents or employees of a trust, (c) the necessity for
obtaining court or other governmental approval concerning the
acquisition, holding or disposition of real or personal
property, (d) fees or other sums payable to trustees, officers,
agents or employees of a trust, (e) the allocation of receipts
and expenditures to income or principal, or (f) restrictions or
limitations on the permissible nature, amount or concentration
of trust investments or requirements relating to the titling,
storage or other manner of holding or investing trust assets.
Section 13.3. Intention of the Parties. It is the intention of
the parties hereto that the Trust be classified for United
States federal income tax purposes as a grantor trust. The
provisions of this Declaration shall be interpreted to further
this intention of the parties.
39
Section 13.4. Headings. Headings contained in this Declaration
are inserted for convenience of reference only and do not affect
the interpretation of this Declaration or any provision hereof.
Section 13.5. Successors and Assigns. Whenever in this
Declaration any of the parties hereto is named or referred to,
the successors and assigns of such party shall be deemed to be
included, and all covenants and agreements in this Declaration
by the Sponsor and the Institutional Trustee shall bind and
inure to the benefit of their respective successors and assigns,
whether or not so expressed.
Section 13.6. Partial Enforceability. If any provision of this
Declaration, or the application of such provision to any Person
or circumstance, shall be held invalid, the remainder of this
Declaration, or the application of such provision to persons or
circumstances other than those to which it is held invalid,
shall not be affected thereby.
Section 13.7. Counterparts. This Declaration may contain more
than one counterpart of the signature page and this Declaration
may be executed by the affixing of the signature of each of the
Institutional Trustee and Administrators to any of such
counterpart signature pages. All of such counterpart signature
pages shall be read as though one, and they shall have the same
force and effect as though all of the signers had signed a
single signature page.
Signatures appear on the following page
40
IN WITNESS WHEREOF, the undersigned have caused these
presents to be executed as of the day and year first above written.
U.S. BANK NATIONAL ASSOCIATION,
as Institutional Trustee
By /s/ Paul D. Allen
---------------------------------
Name: Paul D. Allen
Title: Vice President
WESBANCO, INC., as Sponsor
By: /s/ Robert H. Young
--------------------------------
Name: Robert H. Young
Title: Executive Vice President
and Chief Executive Officer
WESBANCO, INC. CAPITAL STATUTORY
TRUST III
By: /s/ Robert H. Young
--------------------------------
Administrator
By: /s/ Brent E. Richmond
--------------------------------
Administrator
By: /s/ Paul M. Limbert
--------------------------------
Administrator
41
ANNEX I
TERMS OF SECURITIES
Pursuant to Section 6.1 of the Amended and Restated
Declaration of Trust, dated as of June 26, 2003 (as amended from
time to time, the "Declaration"), the designation, rights,
privileges, restrictions, preferences and other terms and
provisions of the Capital Securities and the Common Securities
are set out below (each capitalized term used but not defined
herein has the meaning set forth in the Declaration):
1. Designation and Number.
(a) 17,000 Fixed/Floating Rate Capital Securities of
Wesbanco, Inc. Capital Statutory Trust III (the "Trust"), with
an aggregate stated liquidation amount with respect to the
assets of the Trust of seventeen million dollars
($17,000,000.00) and a stated liquidation amount with respect to
the assets of the Trust of $1,000.00 per Capital Security, are
hereby designated for the purposes of identification only as the
"Capital Securities". The Capital Security Certificates
evidencing the Capital Securities shall be substantially in the
form of Exhibit A-1 to the Declaration, with such changes and
additions thereto or deletions therefrom as may be required by
ordinary usage, custom or practice.
(b) 526 Fixed/Floating Rate Common Securities of the
Trust (the "Common Securities") will be evidenced by Common
Security Certificates substantially in the form of Exhibit A-2
to the Declaration, with such changes and additions thereto or
deletions therefrom as may be required by ordinary usage, custom
or practice.
2. Distributions.
(a) Distributions will be payable on each Security
for the period beginning on (and including) the date of original
issuance and ending on (but excluding) June 26, 2008 at a rate
per annum of 5.55% and shall bear interest for each successive
Distribution Period beginning on (and including) June 26, 2008,
and each succeeding Distribution Payment Date, and ending on
(but excluding) the next succeeding Distribution Payment Date at
a rate per annum equal to the 3-Month LIBOR, determined as
described below, plus 3.10% (the "Coupon Rate"), applied to the
stated liquidation amount thereof, such rate being the rate of
interest payable on the Debentures to be held by the
Institutional Trustee. Distributions in arrears will bear
interest thereon compounded quarterly at the applicable
Distribution Rate (to the extent permitted by law).
Distributions, as used herein, include cash distributions and
any such compounded distributions unless otherwise noted. A
Distribution is payable only to the extent that payments are
made in respect of the Debentures held by the Institutional
Trustee and to the extent the Institutional Trustee has funds
available therefor. In the event that any date on which a
Distribution is payable on the Securities is not a Business Day,
then payment of the Distribution payable on such date shall be
made on the next succeeding day which is a Business Day (and
without any interest or other payment in respect of any such
delay), except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same
force and effect as if made on the date such payment was
originally payable. The amount of the Distribution payable
(i) for any Distribution Period commencing on or after the date
of original issuance but before June 26, 2008 will be computed
on the basis of a 360-day year of twelve 30-day months, and
(ii) for the Distribution Period commencing on June 26, 2008 and
each succeeding Distribution Period will be calculated by
applying the Distribution Rate to the stated liquidation amount
outstanding at the commencement of the Distribution Period and
multiplying each such amount by the actual number of days in the
Distribution Period concerned divided by 360. All percentages
resulting from any calculations on the Capital Securities will
be rounded, if necessary, to the nearest one hundred-thousandth
of a
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percentage point, with five one-millionths of a percentage
point rounded upward (e.g., 9.876545% (or .09876545) being
rounded to 9.87655% (or .0987655), and all dollar amounts used
in or resulting from such calculation will be rounded to the
nearest cent (with one-half cent being rounded upward)).
(b) Distributions on the Securities will be
cumulative, will accrue from the date of original issuance, and
will be payable, subject to extension of distribution payment
periods as described herein, quarterly in arrears on March 26,
June 26, September 26 and December 26 of each year, commencing
on September 26, 2003 (each a "Distribution Payment Date") when,
as and if available for payment. The Debenture Issuer has the
right under the Indenture to defer payments of interest on the
Debentures, so long as no Indenture Event of Default has
occurred and is continuing, by deferring the payment of interest
on the Debentures for up to 20 consecutive quarterly periods
(each an "Extension Period") at any time and from time to time,
subject to the conditions described below, during which
Extension Period no interest shall be due and payable. During
any Extension Period, interest will continue to accrue on the
Debentures, and interest on such accrued interest will accrue at
an annual rate equal to the Distribution Rate in effect for each
such Extension Period, compounded quarterly from the date such
interest would have been payable were it not for the Extension
Period, to the extent permitted by law (such interest referred
to herein as "Additional Interest"). No Extension Period may
end on a date other than a Distribution Payment Date. At the
end of any such Extension Period, the Debenture Issuer shall pay
all interest then accrued and unpaid on the Debentures (together
with Additional Interest thereon); provided, however, that no
Extension Period may extend beyond the Maturity Date and
provided further, however, that during any such Extension
Period, the Debenture Issuer and its Affiliates 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 Debenture Issuer's or its Affiliates' capital
stock (other than payments of dividends or distributions to the
Debenture Issuer) or make any guarantee payments with respect to
the foregoing, or (ii) make any payment of principal of or
interest or premium, if any, on or repay, repurchase or redeem
any debt securities of the Debenture Issuer or any Affiliate
that rank pari passu in all respects with or junior in interest
to the Debentures (other than, with respect to clauses (i) and
(ii) above, (a) repurchases, redemptions or other acquisitions
of shares of capital stock of the Debenture Issuer in connection
with any employment contract, benefit plan or other similar
arrangement with or for the benefit of one or more employees,
officers, directors or consultants, in connection with a
dividend reinvestment or stockholder stock purchase plan or in
connection with the issuance of capital stock of the Debenture
Issuer (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 any exchange or conversion of any class or series of
the Debenture Issuer's capital stock (or any capital stock of a
subsidiary of the Debenture Issuer) for any class or series of
the Debenture Issuer's capital stock or of any class or series
of the Debenture Issuer's indebtedness for any class or series
of the Debenture Issuer's capital stock, (c) the purchase of
fractional interests in shares of the Debenture Issuer'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
stockholders' rights plan, or the issuance of rights, stock or
other property under any stockholders' rights plan, or the
redemption or repurchase of rights pursuant thereto, (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 and any cash payments in lieu of fractional
shares issued in connection therewith, or (f) payments under
the Capital Securities Guarantee). Prior to the termination of
any Extension Period, the Debenture Issuer may further extend
such period, provided that such period together with all such
previous and further consecutive extensions thereof shall not
exceed 20 consecutive quarterly periods, or extend beyond the
Maturity Date. Upon the termination of any Extension Period and
upon the payment of all accrued and unpaid interest and
Additional Interest, the Debenture Issuer may commence a new
Extension Period, subject to the foregoing requirements. No
interest or Additional Interest shall be due and payable during
an Extension Period, except at the end thereof, but each
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installment of interest that would otherwise have been due and
payable during such Extension Period shall bear Additional
Interest. During any Extension Period, Distributions on the
Securities shall be deferred for a period equal to the Extension
Period. If Distributions are deferred, the Distributions due
shall be paid on the date that the related Extension Period
terminates to Holders of the Securities as they appear on the
books and records of the Trust on the record date immediately
preceding such 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 Property Account of the
Trust. The Trust's funds available for Distribution to the
Holders of the Securities will be limited to payments received
from the Debenture Issuer. The payment of Distributions out of
moneys held by the Trust is guaranteed by the Guarantor pursuant
to the Guarantee.
(c) Distributions on the Securities will be payable
to the Holders thereof as they appear on the books and records
of the Trust on the relevant record dates. The relevant record
dates shall be 15 days before the relevant Distribution Payment
Date. Distributions payable on any Securities that are not
punctually paid on any Distribution Payment Date, as a result of
the Debenture Issuer having failed to make a payment under the
Debentures, as the case may be, when due (taking into account
any Extension Period), will cease to be payable to the Person in
whose name such Securities are registered on the relevant record
date, and such defaulted Distribution will instead be payable to
the Person in whose name such Securities are registered on the
special record date or other specified date determined in
accordance with the Indenture. If any date on which
Distributions are payable on the Securities is not a Business
Day, then payment of the Distribution payable on such date will
be made on the next succeeding day that is a Business Day (and
without any interest or other payment in respect of any such
delay) except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same
force and effect as if made on such payment date.
(d) In the event that there is any money or other
property held by or for the Trust that is not accounted for
hereunder, such property shall be distributed Pro Rata (as
defined herein) among the Holders of the Securities.
3. Liquidation Distribution Upon Dissolution. In the
event of the voluntary or involuntary liquidation, dissolution,
winding-up or termination of the Trust (each a "Liquidation")
other than in connection with a redemption of the Debentures,
the Holders of the Securities will be entitled to receive out of
the assets of the Trust available for distribution to Holders of
the Securities, after satisfaction of liabilities to creditors
of the Trust (to the extent not satisfied by the Debenture
Issuer), distributions equal to the aggregate of the stated
liquidation amount of $1,000.00 per Security plus accrued and
unpaid Distributions thereon to the date of payment (such amount
being the "Liquidation Distribution"), unless in connection with
such Liquidation, the Debentures in an aggregate stated
principal amount equal to the aggregate stated liquidation
amount of such Securities, with an interest rate equal to the
Distribution Rate of, and bearing accrued and unpaid interest in
an amount equal to the accrued and unpaid Distributions on, and
having the same record date as, such Securities, after paying or
making reasonable provision to pay all claims and obligations of
the Trust in accordance with the Statutory Trust Act, shall be
distributed on a Pro Rata basis to the Holders of the Securities
in exchange for such Securities.
The Sponsor, as the Holder of all of the Common Securities,
has the right at any time to dissolve the Trust (including,
without limitation, upon the occurrence of a Special Event),
subject to the receipt by the Debenture Issuer of prior approval
from the Board of Governors of the Federal Reserve System and
any successor federal agency that is primarily responsible for
regulating the activities of the Sponsor (the "Federal
Reserve"), if the Sponsor is a bank holding company, or from the
Office of Thrift Supervision and any successor federal agency
that is primarily responsible for regulating the activities of
Sponsor, (the "OTS") if the Sponsor is a savings and loan
holding company, in either case if then required under
I-3
applicable capital guidelines or policies of the Federal Reserve
or OTS, as applicable, and, after satisfaction of liabilities to
creditors of the Trust, cause the Debentures to be distributed
to the Holders of the Securities on a Pro Rata basis in
accordance with the aggregate stated liquidation amount thereof.
If a Liquidation of the Trust occurs as described in
clause (i), (ii), (iii) or (v) in Section 7.1(a) of the
Declaration, the Trust shall be liquidated by the Institutional
Trustee as expeditiously as it determines to be possible by
distributing, after satisfaction of liabilities to creditors of
the Trust, to the Holders of the Securities, the Debentures on a
Pro Rata basis to the extent not satisfied by the Debenture
Issuer, unless such distribution is determined by the
Institutional Trustee not to be practical, in which event such
Holders will be entitled to receive out of the assets of the
Trust available for distribution to the Holders, after
satisfaction of liabilities of creditors of the Trust to the
extent not satisfied by the Debenture Issuer, an amount equal to
the Liquidation Distribution. An early Liquidation of the Trust
pursuant to clause (iv) of Section 7.1(a) of the Declaration
shall occur if the Institutional Trustee determines that such
Liquidation is possible by distributing, after satisfaction of
liabilities to creditors of the Trust, to the Holders of the
Securities on a Pro Rata basis, the Debentures, and such
distribution occurs.
If, upon any such Liquidation 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 the amounts payable directly by the Trust on
such Capital Securities shall be paid to the Holders of the
Trust Securities on a Pro Rata basis, except that if an Event of
Default has occurred and is continuing, the Capital Securities
shall have a preference over the Common Securities with regard
to such distributions.
After the date for any distribution of the Debentures upon
dissolution of the Trust (i) the Securities of the Trust will be
deemed to be no longer outstanding, (ii) upon surrender of a
Holder's Securities certificate, such Holder of the Securities
will receive a certificate representing the Debentures to be
delivered upon such distribution, (iii) any certificates
representing the Securities still outstanding will be deemed to
represent undivided beneficial interests in such of the
Debentures as have an aggregate principal amount equal to the
aggregate stated liquidation amount with an interest rate
identical to the Distribution Rate of, and bearing accrued and
unpaid interest equal to accrued and unpaid distributions on,
the Securities until such certificates are presented to the
Debenture Issuer or its agent for transfer or reissuance (and
until such certificates are so surrendered, no payments of
interest or principal shall be made to Holders of Securities in
respect of any payments due and payable under the Debentures;
provided, however that such failure to pay shall not be deemed
to be an Event of Default and shall not entitle the Holder to
the benefits of the Guarantee), and (iv) all rights of Holders
of Securities under the Declaration shall cease, except the
right of such Holders to receive Debentures upon surrender of
certificates representing such Securities.
4. Redemption and Distribution.
(a) The Debentures will mature on June 26, 2033. The
Debentures may be redeemed by the Debenture Issuer, in whole or
in part, at any Distribution Payment Date on or after June 26,
2008, at the Redemption Price. In addition, the Debentures may
be redeemed by the Debenture Issuer at the Special Redemption
Price, in whole but not in part, at any Distribution Payment
Date, upon the occurrence and continuation of a Special Event
within 120 days following the occurrence of such Special Event
at the Special Redemption Price, upon not less than 30 nor more
than 60 days' notice to holders of such Debentures so long as
such Special Event is continuing. In each case, the right of the
Debenture Issuer to redeem the Debentures is subject to the
Debenture Issuer having received prior approval from the Federal
Reserve (if the Debenture Issuer is a bank holding company) or
prior approval from the OTS (if the Debenture Issuer is a
savings and loan holding company), in each case if then required
under applicable capital guidelines or policies of the
applicable federal agency. The Sponsor shall appoint a
Quotation Agent, which initially shall be U.S. Bank National
Association, for the purpose of performing
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the services contemplated in or by reference in, the definition of
Special Redemption Price. Any error in the calculation of the Special
Redemption Price by the Quotation Agent or the Debenture Trustee
may be corrected at any time by notice delivered to the Sponsor
and the holders of the Capital Securities. Subject to the
corrective rights set forth above, all certificates,
communications, opinions, determinations, calculations,
quotations and decisions given, expressed, made or obtained for
the purposes of the provisions relating to the payment and
calculation of the Special Redemption Price on the Debentures or
the Capital Securities by the Debenture Trustee, the Quotation
Agent or the Institutional Trustee, as the case may be, shall
(in the absence of willful default, bad faith or manifest error)
be final, conclusive and binding on the holders of the
Debentures and the Capital Securities, the Trust and the
Sponsor, and no liability shall attach (except as provided
above) to the Debenture Trustee, the Quotation Agent or the
Institutional Trustee in connection with the exercise or non-
exercise by any of them of their respective powers, duties and
discretion.
"3-Month LIBOR" means the London interbank offered interest
rate for three-month, U.S. dollar deposits determined by the
Debenture Trustee in the following order of priority:
(1) the rate (expressed as a percentage per annum)
for U.S. dollar deposits having a three-month maturity that
appears on Telerate Page 3750 as of 11:00 a.m. (London
time) on the related Determination Date (as defined below).
"Telerate Page 3750" means the display designated as
"Page 3750" on the Dow Jones Telerate Service or such other
page as may replace Page 3750 on that service or such other
service or services as may be nominated by the British
Bankers' Association as the information vendor for the
purpose of displaying London interbank offered rates for
U.S. dollar deposits;
(2) if such rate cannot be identified on the related
Determination Date, the Debenture Trustee will request the
principal London offices of four leading banks in the
London interbank market to provide such banks' offered
quotations (expressed as percentages per annum) to prime
banks in the London interbank market for U.S. dollar
deposits having a three-month maturity as of 11:00 a.m.
(London time) on such Determination Date. If at least two
quotations are provided, 3-Month LIBOR will be the
arithmetic mean of such quotations;
(3) if fewer than two such quotations are provided as
requested in clause (2) above, the Debenture Trustee will
request four major New York City banks to provide such
banks' offered quotations (expressed as percentages per
annum) to leading European banks for loans in U.S. dollars
as of 11:00 a.m. (London time) on such Determination Date.
If at least two such quotations are provided, 3-Month LIBOR
will be the arithmetic mean of such quotations; and
(4) if fewer than two such quotations are provided as
requested in clause (3) above, 3-Month LIBOR will be a
3-Month LIBOR determined with respect to the Distribution
Period immediately preceding such current Distribution
Period.
If the rate for U.S. dollar deposits having a three-month
maturity that initially appears on Telerate Page 3750 as of
11:00 a.m. (London time) on the related Determination Date is
superseded on the Telerate Page 3750 by a corrected rate by
12:00 noon (London time) on such Determination Date, then the
corrected rate as so substituted on the applicable page will be
the applicable 3-Month LIBOR for such Determination Date.
The Distribution Rate for any Distribution Period will at
no time be higher than the maximum rate then permitted by New
York law as the same may be modified by United States law.
"Capital Treatment Event" means the receipt by the
Debenture Issuer and the Trust of an opinion of counsel
experienced in such matters to the effect that, as a result of
the occurrence of any amendment
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to, or change (including any announced prospective change) in, the
laws, rules or regulations of the United States or any political
subdivision thereof or therein, or as the result of any official or
administrative pronouncement or action or decision interpreting or
applying such laws, rules or regulations, which amendment or change
is effective or which pronouncement, action or decision is
announced on or after the date of original issuance of the
Debentures, there is more than an insubstantial risk that the
Sponsor will not, within 90 days of the date of such opinion, be
entitled to treat an amount equal to the aggregate liquidation
amount of the Capital Securities as "Tier 1 Capital" (or its
then equivalent) for purposes of the capital adequacy guidelines
of the Federal Reserve, as then in effect and applicable to the
Sponsor (or if the Sponsor is not a bank holding company, such
guidelines applied to the Sponsor as if the Sponsor were subject
to such guidelines); provided, however, that the inability of
the Sponsor to treat all or any portion of the liquidation
amount of the Capital Securities as Tier l Capital shall not
constitute the basis for a Capital Treatment Event, if such
inability results from the Sponsor having cumulative preferred
stock, minority interests in consolidated subsidiaries, or any
other class of security or interest which the Federal Reserve or
OTS, as applicable, may now or hereafter accord Tier 1 Capital
treatment in excess of the amount which may now or hereafter
qualify for treatment as Tier 1 Capital under applicable capital
adequacy guidelines; provided further, however, that the
distribution of Debentures in connection with the Liquidation of
the Trust shall not in and of itself constitute a Capital
Treatment Event unless such Liquidation shall have occurred in
connection with a Tax Event or an Investment Company Event.
"Comparable Treasury Issue" means with respect to any
Special Redemption Date the United States Treasury security
selected by the Quotation Agent as having a maturity comparable
to the Fixed Rate Period Remaining Life that would be utilized,
at the time of selection and in accordance with customary
financial practice, in pricing new issues of corporate debt
securities of comparable maturity to the Fixed Rate Period
Remaining Life. If no United States Treasury security has a
maturity which is within a period from 3 months before to 3
months after June 26, 2008, the two most closely corresponding
United States Treasury securities as selected by the Quotation
Agent shall be used as the Comparable Treasury Issue, and the
Treasury Rate shall be interpolated and extrapolated on a
straight-line basis, rounding to the nearest month using such
securities.
"Comparable Treasury Price" means (a) the average of 5
Reference Treasury Dealer Quotations for such Special Redemption
Date, after excluding the highest and lowest such Reference
Treasury Dealer Quotations, or (b) if the Quotation Agent
obtains fewer than 5 such Reference Treasury Dealer Quotations,
the average of all such Quotations.
"Determination Date" means the date that is two London
Banking Days (i.e., a business day in which dealings in deposits
in U.S. dollars are transacted in the London interbank market)
preceding the particular Distribution Period for which a Coupon
Rate is being determined.
"Fixed Rate Period Remaining Life" means, with respect to
any Debenture, the period from the Special Redemption Date for
such Debenture to June 26, 2008.
"Investment Company Event" means the receipt by the
Debenture Issuer and the Trust of an opinion of counsel
experienced in such matters to the effect that, as a result of
the occurrence of a change in law or regulation or written
change (including any announced prospective change) in
interpretation or application of law or regulation by any
legislative body, court, governmental agency or regulatory
authority, there is more than an insubstantial risk that the
Trust is or, within 90 days of the date of such opinion, will be
considered an Investment Company that is required to be
registered under the Investment Company Act which change or
prospective change becomes effective or would become effective,
as the case may be, on or after the date of the issuance of the
Debentures.
"Maturity Date" means June 26, 2033.
I-6
"Primary Treasury Dealer" shall mean either a primary
United States Government securities dealer or an entity of
nationally recognized standing in matters pertaining to the
quotation of treasury securities that is reasonably acceptable
to the Sponsor and the Institutional Trustee.
"Quotation Agent" means U.S. Bank National Association, or
its designee, and its successors; provided, however, that if the
foregoing shall cease to be a Primary Treasury Dealer, the
Sponsor shall substitute therefor another Primary Treasury
Dealer.
"Redemption Date" shall mean the date fixed for the
redemption of Capital Securities, which shall be any March 26,
June 26, September 26 or December 26 commencing June 26, 2008.
"Redemption Price" means 100% of the principal amount of
the Debentures being redeemed, plus accrued and unpaid Interest
on such Debentures to the Redemption Date.
"Reference Treasury Dealer" means (i) the Quotation Agent
and (ii) any other Primary Treasury Dealer selected by the
Debenture Trustee after consultation with the Debenture Issuer.
"Reference Treasury Dealer Quotations" means, with respect
to each Reference Treasury Dealer and any Special Redemption
Date, the average, as determined by the Quotation Agent, of the
bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount)
quoted in writing to the Debenture Trustee by such Reference
Treasury Dealer at 5:00 p.m., New York City time, on the third
Business Day preceding such Redemption Date.
"Special Event" means a Tax Event, an Investment Company
Event or a Capital Treatment Event.
"Special Redemption Date" means a date on which a Special
Event redemption occurs, which shall be any March 26, June 26,
September 26 or December 26.
"Special Redemption Price" means (a) if the Special
Redemption Date occurs before June 26, 2008, the greater of
(i) 107.5% of the principal amount of the Debentures, plus
accrued and unpaid Interest on the Debentures to the Special
Redemption Date, or (ii) as determined by the Quotation Agent,
(A) the sum of the present values of the scheduled payments of
principal and Interest on the Debentures during the Fixed Rate
Period Remaining Life of the Debentures (assuming the Debentures
matured on June 26, 2008) discounted to the Special Redemption
Date on a quarterly basis (assuming a 360-day year consisting of
twelve 30-day months) at the Treasury Rate, plus (B) accrued and
unpaid Interest on the Debentures to such Special Redemption
Date, or (b) if the Special Redemption Date occurs on or after
June 26, 2008, 100% of the principal amount of the Debentures
being redeemed, plus accrued and unpaid Interest on such
Debentures to the Special Redemption Date.
"Tax Event" means the receipt by the Debenture Issuer and
the Trust of an opinion of counsel experienced in such matters
to the effect that, as a result of any amendment to or change
(including any announced prospective change) in the laws or any
regulations thereunder of the United States or any political
subdivision or taxing authority thereof or therein, or as a
result of any official administrative pronouncement (including
any private letter ruling, technical advice memorandum, field
service advice, regulatory procedure, notice or announcement
including any notice or announcement of intent to adopt such
procedures or regulations) (an "Administrative Action") or
judicial decision interpreting or applying such laws or
regulations, regardless of whether such Administrative Action or
judicial decision is issued to or in connection with a
proceeding involving the Debenture Issuer or the Trust and
whether or not subject to review or appeal, which amendment,
clarification, change, Administrative Action or decision is
enacted, promulgated or announced, in each case on or after the
date of original issuance of the Debentures, there is more than
an insubstantial risk that: (i) the Trust is, or will be within
90 days of the date of such opinion, subject to United States
federal income tax with respect to income received or
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accrued on the Debentures; (ii) interest payable by the Debenture
Issuer on the Debentures is not, or within 90 days of the date of
such opinion, will not be, deductible by the Debenture Issuer, in
whole or in part, for United States federal income tax purposes;
or (iii) the Trust is, or will be within 90 days of the date of
such opinion, subject to more than a de minimis amount of other
taxes, duties or other governmental charges.
"Treasury Rate" means (i) the yield, under the heading
which represents the average for the week immediately prior to
the date of calculation, appearing in the most recently
published statistical release designated H.15 (519) or any
successor publication which is published weekly by the Federal
Reserve and which establishes yields on actively traded United
States Treasury securities adjusted to constant maturity under
the caption "Treasury Constant Maturities," for the maturity
corresponding to the Fixed Rate Period Remaining Life (if no
maturity is within three months before or after the Fixed Rate
Period Remaining Life, yields for the two published maturities
most closely corresponding to the Fixed Rate Period Remaining
Life shall be determined and the Treasury Rate shall be
interpolated or extrapolated from such yields on a straight-line
basis, rounding to the nearest month) or (ii) if such release
(or any successor release) is not published during the week
preceding the calculation date or does not contain such yields,
the rate per annum equal to the semi-annual equivalent yield to
maturity of the Comparable Treasury Issue, calculated using a
price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable
Treasury Price for such Special Redemption Date. The Treasury
Rate shall be calculated by the Quotation Agent on the third
Business Day preceding the Special Redemption Date.
(b) Upon the repayment in full at maturity or
redemption in whole or in part of the Debentures (other than
following the distribution of the Debentures to the Holders of
the Securities), the proceeds from such repayment or payment
shall concurrently be applied to redeem Pro Rata at the
applicable Redemption Price or Special Redemption Price, as
applicable, Securities having an aggregate liquidation amount
equal to the aggregate principal amount of the Debentures so
repaid or redeemed; provided, however, that holders of such
Securities shall be given not less than 30 nor more than 60
days' notice of such redemption (other than at the scheduled
maturity of the Debentures).
(c) If fewer than all the outstanding Securities are
to be so redeemed, the Common Securities and the Capital
Securities will be redeemed Pro Rata and the Capital Securities
to be redeemed will be redeemed Pro Rata from each Holder of
Capital Securities.
(d) The Trust may not redeem fewer than all the
outstanding Capital Securities unless all accrued and unpaid
Distributions have been paid on all Capital Securities for all
quarterly Distribution periods terminating on or before the date
of redemption.
(e) Redemption or Distribution Procedures.
(i) Notice of any redemption of, or notice of
distribution of the Debentures in exchange for, the
Securities (a "Redemption/Distribution Notice") will be
given by the Trust by mail to each Holder of Securities to
be redeemed or exchanged not fewer than 30 nor more than 60
days before the date fixed for redemption or exchange
thereof which, in the case of a redemption, will be the
date fixed for redemption of the Debentures. For purposes
of the calculation of the date of redemption or exchange
and the dates on which notices are given pursuant to this
paragraph 4(e)(i), a Redemption/Distribution Notice shall
be deemed to be given on the day such notice is first
mailed by first-class mail, postage prepaid, to Holders of
such Securities. Each Redemption/Distribution Notice shall
be addressed to the Holders of such Securities at the
address of each such Holder appearing on the books and
records of the Trust. No defect in the
Redemption/Distribution Notice or in the mailing thereof
with respect to any Holder
I-8
shall affect the validity of the redemption or exchange proceedings
with respect to any other Holder.
(ii) If the Securities are to be redeemed and the
Trust gives a Redemption/ Distribution Notice, which notice
may only be issued if the Debentures are redeemed as set
out in this paragraph 4 (which notice will be irrevocable),
then, provided that the Institutional Trustee has a
sufficient amount of cash in connection with the related
redemption or maturity of the Debentures, the Institutional
Trustee will pay the relevant Redemption Price or Special
Redemption Price, as applicable, to the Holders of such
Securities by check mailed to the address of each such
Holder appearing on the books and records of the Trust on
the Redemption Date. If a Redemption/Distribution Notice
shall have been given and funds deposited as required then
immediately prior to the close of business on the date of
such deposit Distributions will cease to accrue on the
Securities so called for redemption and all rights of
Holders of such Securities so called for redemption will
cease, except the right of the Holders of such Securities
to receive the applicable Redemption Price or Special
Redemption Price specified in paragraph 4(a), but without
interest on such Redemption Price or Special Redemption
Price. If any date fixed for redemption of Securities is
not a Business Day, then payment of any such Redemption
Price or Special Redemption Price payable on such date will
be made on the next succeeding day that is a Business Day
(and without any interest or other payment in respect of
any such delay) except that, if such Business Day falls in
the next calendar year, such payment will be made on the
immediately preceding Business Day, in each case with the
same force and effect as if made on such date fixed for
redemption. If payment of the Redemption Price or Special
Redemption Price in respect of any Securities is improperly
withheld or refused and not paid either by the Trust or by
the Debenture Issuer as guarantor pursuant to the
Guarantee, Distributions on such Securities will continue
to accrue at the Distribution Rate from the original
Redemption Date to the actual date of payment, in which
case the actual payment date will be considered the date
fixed for redemption for purposes of calculating the
Redemption Price or Special Redemption Price. In the event
of any redemption of the Capital Securities issued by the
Trust in part, the Trust shall not be required to
(i) issue, register the transfer of or exchange any
Security during a period beginning at the opening of
business 15 days before any selection for redemption of the
Capital Securities and ending at the close of business on
the earliest date on which the relevant notice of
redemption is deemed to have been given to all Holders of
the Capital Securities to be so redeemed or (ii) register
the transfer of or exchange any Capital Securities so
selected for redemption, in whole or in part, except for
the unredeemed portion of any Capital Securities being
redeemed in part.
(iii) Redemption/Distribution Notices shall be
sent by the Administrators on behalf of the Trust to (A) in
respect of the Capital Securities, the Holders thereof and
(B) in respect of the Common Securities, the Holder
thereof.
(iv) Subject to the foregoing and applicable law
(including, without limitation, United States federal
securities laws), and provided that the acquiror is not the
Holder of the Common Securities or the obligor under the
Indenture, the Sponsor or any of its subsidiaries may at
any time and from time to time purchase outstanding Capital
Securities by tender, in the open market or by private
agreement.
5. Voting Rights - Capital Securities.
(a) Except as provided under paragraphs 5(b) and 7
and as otherwise required by law and the Declaration, the
Holders of the Capital Securities will have no voting rights.
The Administrators are required to call a meeting of the Holders
of the Capital Securities if directed to do so by Holders of at
least 10% in liquidation amount of the Capital Securities.
I-9
(b) Subject to the requirements of obtaining a tax
opinion by the Institutional Trustee in certain circumstances
set forth in the last sentence of this paragraph, the Holders of
a Majority in liquidation amount of the Capital Securities,
voting separately as a class, have the right to direct the time,
method, and place of conducting any proceeding for any remedy
available to the Institutional Trustee, or exercising any trust
or power conferred upon the Institutional Trustee under the
Declaration, including the right to direct the Institutional
Trustee, as holder of the Debentures, to (i) exercise the
remedies available under the Indenture as the holder of the
Debentures, (ii) waive any past default that is waivable under
the Indenture, (iii) exercise any right to rescind or annul a
declaration that the principal of all the Debentures shall be
due and payable or (iv) consent on behalf of all the Holders of
the Capital Securities to any amendment, modification or
termination of the Indenture or the Debentures where such
consent shall be required; provided, however, that, where a
consent or action under the Indenture would require the consent
or act of the holders of greater than a simple majority in
aggregate principal amount of Debentures (a "Super Majority")
affected thereby, the Institutional Trustee may only give such
consent or take such action at the written direction of the
Holders of at least the proportion in liquidation amount of the
Capital Securities outstanding which the relevant Super Majority
represents of the aggregate principal amount of the Debentures
outstanding. If the Institutional Trustee fails to enforce its
rights under the Debentures after the Holders of a Majority in
liquidation amount of such Capital Securities have so directed
the Institutional Trustee, to the fullest extent permitted by
law, a Holder of the Capital Securities may institute a legal
proceeding directly against the Debenture Issuer to enforce the
Institutional Trustee's rights under the Debentures without
first instituting any legal proceeding against the Institutional
Trustee or any other person or entity. Notwithstanding the
foregoing, if an Event of Default has occurred and is continuing
and such event is attributable to the failure of the Debenture
Issuer to pay interest or principal on the Debentures on the
date the interest or principal is payable (or in the case of
redemption, the Redemption Date or the Special Redemption Date,
as applicable), then a Holder of record of the Capital
Securities may directly institute a proceeding for enforcement
of payment, on or after the respective due dates specified in
the Debentures, to such Holder directly of the principal of or
interest on the Debentures having an aggregate principal amount
equal to the aggregate liquidation amount of the Capital
Securities of such Holder. The Institutional Trustee shall
notify all Holders of the Capital Securities of any default
actually known to the Institutional Trustee with respect to the
Debentures unless (x) such default has been cured prior to the
giving of such notice or (y) the Institutional Trustee
determines in good faith that the withholding of such notice is
in the interest of the Holders of such Capital Securities,
except where the default relates to the payment of principal of
or interest on any of the Debentures. Such notice shall state
that such Indenture Event of Default also constitutes an Event
of Default hereunder. Except with respect to directing the time,
method and place of conducting a proceeding for a remedy, the
Institutional Trustee shall not take any of the actions
described in clauses (i), (ii) or (iii) above unless the
Institutional Trustee has obtained an opinion of tax counsel to
the effect that, as a result of such action, the Trust will not
be classified as other than a grantor trust for United States
federal income tax purposes.
In the event the consent of the Institutional Trustee, as
the holder of the Debentures, is required under the Indenture
with respect to any amendment, modification or termination of
the Indenture, the Institutional Trustee shall request the
direction of the Holders of the Securities with respect to such
amendment, modification or termination and shall vote with
respect to such amendment, modification or termination as
directed by a Majority in liquidation amount of the Securities
voting together as a single class; provided, however, that where
a consent under the Indenture would require the consent of a
Super-Majority, the Institutional Trustee may only give such
consent at the direction of the Holders of at least the
proportion in liquidation amount of the Securities outstanding
which the relevant Super-Majority represents of the aggregate
principal amount of the Debentures outstanding. The
Institutional Trustee shall not take any such action in
accordance with the directions of the Holders of the Securities
unless the Institutional Trustee has obtained an opinion of tax
counsel to the effect that, as a result of such action, the
Trust will not be classified as other than a grantor trust for
United States federal income tax purposes.
I-10
A waiver of an Indenture Event of Default will constitute a
waiver of the corresponding Event of Default hereunder. Any
required approval or direction of Holders of the Capital
Securities may be given at a separate meeting of Holders of the
Capital Securities convened for such purpose, at a meeting of
all of the Holders of the Securities in the Trust or pursuant to
written consent. The Institutional Trustee will cause a notice
of any meeting at which Holders of the Capital Securities are
entitled to vote, or of any matter upon which action by written
consent of such Holders is to be taken, to be mailed to each
Holder of record of the Capital Securities. Each such notice
will include a statement setting forth the following information
(i) the date of such meeting or the date by which such action is
to be taken, (ii) a description of any resolution proposed for
adoption at such meeting on which such Holders are entitled to
vote or of such matter upon which written consent is sought and
(iii) instructions for the delivery of proxies or consents. No
vote or consent of the Holders of the Capital Securities will be
required for the Trust to redeem and cancel Capital Securities
or to distribute the Debentures in accordance with the
Declaration and the terms of the Securities.
Notwithstanding that Holders of the Capital Securities are
entitled to vote or consent under any of the circumstances
described above, any of the Capital Securities that are owned by
the Sponsor or any Affiliate of the Sponsor shall not entitle
the Holder thereof to vote or consent and shall, for purposes of
such vote or consent, be treated as if such Capital Securities
were not outstanding.
In no event will Holders of the Capital Securities have the
right to vote to appoint, remove or replace the Administrators,
which voting rights are vested exclusively in the Sponsor as the
Holder of all of the Common Securities of the Trust. Under
certain circumstances as more fully described in the
Declaration, Holders of Capital Securities have the right to
vote to appoint, remove or replace the Institutional Trustee.
6. Voting Rights - Common Securities.
(a) Except as provided under paragraphs 6(b), 6(c)
and 7 and as otherwise required by law and the Declaration, the
Common Securities will have no voting rights.
(b) The Holders of the Common Securities are
entitled, in accordance with Article IV of the Declaration, to
vote to appoint, remove or replace any Administrators.
(c) Subject to Section 6.7 of the Declaration and
only after each Event of Default (if any) with respect to the
Capital Securities has been cured, waived, or otherwise
eliminated and subject to the requirements of the second to last
sentence of this paragraph, the Holders of a Majority in
liquidation amount of the Common Securities, voting separately
as a class, may direct the time, method, and place of conducting
any proceeding for any remedy available to the Institutional
Trustee, or exercising any trust or power conferred upon the
Institutional Trustee under the Declaration, including
(i) directing the time, method, place of conducting any
proceeding for any remedy available to the Debenture Trustee, or
exercising any trust or power conferred on the Debenture Trustee
with respect to the Debentures, (ii) waiving any past default
and its consequences that is waivable under the Indenture, or
(iii) exercising any right to rescind or annul a declaration
that the principal of all the Debentures shall be due and
payable; provided, however, that, where a consent or action
under the Indenture would require a Super Majority, the
Institutional Trustee may only give such consent or take such
action at the written direction of the Holders of at least the
proportion in liquidation amount of the Common Securities which
the relevant Super Majority represents of the aggregate
principal amount of the Debentures outstanding. Notwithstanding
this paragraph 6(c), the Institutional Trustee shall not revoke
any action previously authorized or approved by a vote or
consent of the Holders of the Capital Securities. Other than
with respect to directing the time, method and place of
conducting any proceeding for any remedy available to the
Institutional Trustee or the Debenture Trustee as set forth
above, the Institutional Trustee shall not take any action
described in (i), (ii) or (iii) above, unless the Institutional
Trustee has obtained an opinion
I-11
of tax counsel to the effect that for the purposes of United States
federal income tax the Trust will not be classified as other than a
grantor trust on account of such action. If the Institutional Trustee
fails to enforce its rights under the Declaration to the fullest extent
permitted by law, any Holder of the Common Securities may
institute a legal proceeding directly against any Person to
enforce the Institutional Trustee's rights under the
Declaration, without first instituting a legal proceeding
against the Institutional Trustee or any other Person.
Any approval or direction of Holders of the Common
Securities may be given at a separate meeting of Holders of the
Common Securities convened for such purpose, at a meeting of all
of the Holders of the Securities in the Trust or pursuant to
written consent. The Administrators will cause a notice of any
meeting at which Holders of the Common Securities are entitled
to vote, or of any matter upon which action by written consent
of such Holders is to be taken, to be mailed to each Holder of
the Common Securities. Each such notice will include a statement
setting forth (i) the date of such meeting or the date by which
such action is to be taken, (ii) a description of any resolution
proposed for adoption at such meeting on which such Holders are
entitled to vote or of such matter upon which written consent is
sought and (iii) instructions for the delivery of proxies or
consents.
No vote or consent of the Holders of the Common Securities
will be required for the Trust to redeem and cancel Common
Securities or to distribute the Debentures in accordance with
the Declaration and the terms of the Securities.
7. Amendments to Declaration and Indenture.
(a) In addition to any requirements under
Section 11.1 of the Declaration, if any proposed amendment to
the Declaration provides for, or the Institutional Trustee,
Sponsor or Administrators otherwise propose to effect, (i) any
action that would adversely affect the powers, preferences or
special rights of the Securities, whether by way of amendment to
the Declaration or otherwise, or (ii) the Liquidation of the
Trust, other than as described in Section 7.1 of the
Declaration, then the Holders of outstanding Securities, voting
together as a single 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 Securities, affected
thereby; provided, however, if any amendment or proposal
referred to in clause (i) above would adversely affect only the
Capital Securities or only the Common Securities, then only the
affected 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 a Majority in liquidation amount of
such class of Securities.
(b) In the event the consent of the Institutional
Trustee as the holder of the Debentures is required under the
Indenture with respect to any amendment, modification or
termination of the Indenture or the Debentures, the
Institutional Trustee shall request the written direction of the
Holders of the Securities with respect to such amendment,
modification or termination and shall vote with respect to such
amendment, modification, or termination as directed by a
Majority in liquidation amount of the Securities voting together
as a single class; provided, however, that where a consent under
the Indenture would require a Super Majority, the Institutional
Trustee may only give such consent at the direction of the
Holders of at least the proportion in liquidation amount of the
Securities which the relevant Super Majority represents of the
aggregate principal amount of the Debentures outstanding.
(c) Notwithstanding the foregoing, no amendment or
modification may be made to the Declaration if such amendment or
modification would (i) cause the Trust to be classified for
purposes of United States federal income taxation as other than
a grantor trust, (ii) reduce or otherwise adversely affect the
powers of the Institutional Trustee or (iii) cause the Trust to
be deemed an Investment Company which is required to be
registered under the Investment Company Act.
I-12
(d) Notwithstanding any provision of the Declaration,
the right of any Holder of the Capital Securities to receive
payment of distributions and other payments upon redemption or
otherwise, on or after their respective due dates, or to
institute a suit for the enforcement of any such payment on or
after such respective dates, shall not be impaired or affected
without the consent of such Holder. For the protection and
enforcement of the foregoing provision, each and every Holder of
the Capital Securities shall be entitled to such relief as can
be given either at law or equity.
8. Pro Rata. A reference in these terms of the
Securities to any payment, distribution or treatment as being
"Pro Rata" shall mean pro rata to each Holder of the Securities
according to the aggregate liquidation amount of the Securities
held by the relevant Holder in relation to the aggregate
liquidation amount of all Securities then outstanding unless, in
relation to a payment, an Event of Default has occurred and is
continuing, in which case any funds available to make such
payment shall be paid first to each Holder of the Capital
Securities Pro Rata according to the aggregate liquidation
amount of the Capital Securities held by the relevant Holder
relative to the aggregate liquidation amount of all Capital
Securities outstanding, and only after satisfaction of all
amounts owed to the Holders of the Capital Securities, to each
Holder of the Common Securities Pro Rata according to the
aggregate liquidation amount of the Common Securities held by
the relevant Holder relative to the aggregate liquidation amount
of all Common Securities outstanding.
9. Ranking. The Capital Securities rank pari passu with
and payment thereon shall be made Pro Rata with the Common
Securities except that, where an Event of Default has occurred
and is continuing, the rights of Holders of the Common
Securities to receive payment of Distributions and payments upon
liquidation, redemption and otherwise are subordinated to the
rights of the Holders of the Capital Securities with the result
that no payment of any Distribution on, or Redemption Price (or
Special Redemption Price) of, any Common Security, and no other
payment on account of redemption, liquidation or other
acquisition of Common Securities, shall be made unless payment
in full in cash of all accumulated and unpaid Distributions on
all outstanding Capital Securities for all distribution periods
terminating on or prior thereto, or in the case of payment of
the Redemption Price (or Special Redemption Price) the full
amount of such Redemption Price (or Special Redemption Price) on
all outstanding Capital Securities then called for redemption,
shall have been made or provided for, and all funds immediately
available to the Institutional Trustee shall first be applied to
the payment in full in cash of all Distributions on, or the
Redemption Price (or Special Redemption Price) of, the Capital
Securities then due and payable.
10. Acceptance of Guarantee and Indenture. Each Holder of
the Capital Securities and the Common Securities, by the
acceptance of such Securities, agrees to the provisions of the
Guarantee, including the subordination provisions therein and to
the provisions of the Indenture.
11. No Preemptive Rights. The Holders of the Securities
shall have no preemptive or similar rights to subscribe for any
additional securities.
12. Miscellaneous. These terms constitute a part of the
Declaration. The Sponsor will provide a copy of the Declaration,
the Guarantee, and the Indenture to a Holder without charge on
written request to the Sponsor at its principal place of
business.
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EXHIBIT A-1
FORM OF CAPITAL SECURITY CERTIFICATE
[FORM OF FACE OF SECURITY]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), ANY STATE
SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES LAW. NEITHER
THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND ANY
APPLICABLE STATE SECURITIES LAWS. THE HOLDER OF THIS SECURITY
BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE
TRANSFER THIS SECURITY ONLY (A) TO THE SPONSOR OR THE TRUST,
(B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) TO A PERSON WHOM THE
SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER IN
A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A SO LONG AS
THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A IN
ACCORDANCE WITH RULE 144A, (D) TO A NON-U.S. PERSON IN AN
OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 (AS
APPLICABLE) OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF
SUBPARAGRAPH (A) OF RULE 501 UNDER THE SECURITIES ACT THAT IS
ACQUIRING THIS CAPITAL SECURITY FOR ITS OWN ACCOUNT, OR FOR THE
ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE
IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT, OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO THE SPONSOR'S AND THE TRUST'S RIGHT PRIOR TO ANY SUCH
OFFER, SALE OR TRANSFER TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO
EACH OF THEM IN ACCORDANCE WITH THE DECLARATION OF TRUST, A COPY
OF WHICH MAY BE OBTAINED FROM THE SPONSOR OR THE TRUST. HEDGING
TRANSACTIONS INVOLVING THIS SECURITY MAY NOT BE CONDUCTED UNLESS
IN COMPLIANCE WITH THE SECURITIES ACT.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF 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
THE SECURITIES OR ANY INTEREST THEREIN, UNLESS SUCH PURCHASER OR
HOLDER IS ELIGIBLE FOR EXEMPTIVE RELIEF AVAILABLE UNDER U.S.
DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 96-
23, 95-60, 91-38, 90-1 OR 84-14 OR ANOTHER APPLICABLE EXEMPTION
OR ITS PURCHASE AND HOLDING OF THIS SECURITY IS NOT PROHIBITED
BY SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE WITH RESPECT
TO SUCH PURCHASE OR HOLDING. ANY PURCHASER OR HOLDER OF THE
SECURITIES OR ANY INTEREST THEREIN WILL BE DEEMED TO HAVE
REPRESENTED BY ITS PURCHASE AND HOLDING THEREOF THAT EITHER (i)
IT IS NOT AN EMPLOYEE BENEFIT PLAN WITHIN THE
A-1-1
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, OR (ii) SUCH PURCHASE WILL NOT RESULT IN A
PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION
4975 OF THE CODE FOR WHICH THERE IS NO APPLICABLE STATUTORY OR
ADMINISTRATIVE EXEMPTION.
THIS SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN
BLOCKS HAVING A LIQUIDATION AMOUNT OF NOT LESS THAN $100,000.00
(100 SECURITIES) AND MULTIPLES OF $1,000.00 IN EXCESS THEREOF.
ANY ATTEMPTED TRANSFER OF SECURITIES IN A BLOCK HAVING A
LIQUIDATION AMOUNT OF LESS THAN $100,000.00 SHALL BE DEEMED TO
BE VOID AND OF NO LEGAL EFFECT WHATSOEVER.
THE HOLDER OF THIS SECURITY AGREES THAT IT WILL COMPLY WITH
THE FOREGOING RESTRICTIONS.
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO
THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER
INFORMATION AS MAY BE REQUIRED BY THE DECLARATION TO CONFIRM
THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.
Certificate Number P-1 17,000 Capital Securities
June 26, 2003
Certificate Evidencing Fixed/Floating Rate Capital Securities
of
Wesbanco, Inc. Capital Statutory Trust III
(liquidation amount $1,000.00 per Capital Security)
Wesbanco, Inc. Capital Statutory Trust III, a statutory
trust created under the laws of the State of Connecticut (the
"Trust"), hereby certifies that Hare & Co. (the "Holder"), as
the nominee of The Bank of New York, indenture trustee under the
Indenture dated as of June 26, 2003 among Preferred Term
Securities X, Ltd., Preferred Term Securities X, Inc. and The
Bank of New York, is the registered owner of capital securities
of the Trust representing undivided beneficial interests in the
assets of the Trust, (liquidation amount $1,000.00 per capital
security) (the "Capital Securities"). Subject to the Declaration
(as defined below), the Capital Securities are transferable on
the books and records of the Trust in person or by a duly
authorized attorney, upon surrender of this Certificate duly
endorsed and in proper form for transfer. The Capital
Securities represented hereby are issued pursuant to, and the
designation, rights, privileges, restrictions, preferences and
other terms and provisions of the Capital Securities shall in
all respects be subject to, the provisions of the Amended and
Restated Declaration of Trust of the Trust dated as of June 26,
2003, among Robert H. Young, Paul M. Limbert and Brent E.
Richmond, as Administrators, U.S. Bank National Association, as
Institutional Trustee, Wesbanco, Inc., as Sponsor, and the
holders from time to time of undivided beneficial interests in
the assets of the Trust, including the designation of the terms
of the Capital Securities as set forth in Annex I to such
amended and restated declaration as the same may be amended from
time to time (the "Declaration"). Capitalized terms used herein
but not defined shall have the meaning given them in the
Declaration. The Holder is entitled to the benefits of the
Guarantee to the extent provided therein. The Sponsor will
provide a copy of the Declaration, the Guarantee, and the
Indenture to the Holder without charge upon written request to
the Sponsor at its principal place of business.
A-1-2
Upon receipt of this Security, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance of this Security, the Holder agrees to treat,
for United States federal income tax purposes, the Debentures as
indebtedness and the Capital Securities as evidence of
beneficial ownership in the Debentures.
This Capital Security is governed by, and construed in
accordance with, the laws of the State of Connecticut, without
regard to principles of conflict of laws.
Signatures appear on following page
A-1-3
IN WITNESS WHEREOF, the Trust has duly executed this certificate.
WESBANCO, INC. CAPITAL STATUTORY TRUST III
By:
-----------------------------------
Name:
Title: Administrator
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Capital Securities referred to in the within-mentioned
Declaration.
U.S. BANK NATIONAL ASSOCIATION,
as the Institutional Trustee
By:
--------------------------------
Authorized Officer
A-1-4
[FORM OF REVERSE OF CAPITAL SECURITY]
Distributions payable on each Capital Security will be
payable at an annual rate equal to 5.55% beginning on (and
including) the date of original issuance and ending on (but
excluding) June 26, 2008 and at an annual rate for each
successive Distribution Period beginning on (and including)
June 26, 2008, and each succeeding Distribution Payment Date,
and ending on (but excluding) the next succeeding Distribution
Payment Date, equal to 3-Month LIBOR, determined as described
below, plus 3.10% (the "Coupon Rate"), applied to the stated
liquidation amount of $1,000.00 per Capital Security, such rate
being the rate of interest payable on the Debentures to be held
by the Institutional Trustee. Distributions in arrears will bear
interest thereon compounded quarterly at the Distribution Rate
(to the extent permitted by applicable law). The term
"Distributions" as used herein includes cash distributions and
any such compounded distributions unless otherwise noted. A
Distribution is payable only to the extent that payments are
made in respect of the Debentures held by the Institutional
Trustee and to the extent the Institutional Trustee has funds
available therefor. As used herein, "Determination Date" means
the date that is two London Banking Days (i.e., a business day
in which dealings in deposits in U.S. dollars are transacted in
the London interbank market) preceding the commencement of the
relevant Distribution Period. In the event that any date on
which a Distribution is payable on this Capital Security is not
a Business Day, then a payment of the Distribution payable on
such date will be made on the next succeeding day which is a
Business Day (and without any interest or other payment in
respect of any such delay), except that, if such Business Day is
in the next succeeding calendar year, such payment shall be made
on the immediately preceding Business Day, in each case with the
same force and effect as if made on the date the payment was
originally payable. The amount of the Distribution payable
(i) for any Distribution Period commencing on or after the date
of original issuance but before June 26, 2008 will be computed
on the basis of a 360-day year of twelve 30-day months, and
(ii) for the Distribution Period commencing on June 26, 2008 and
each succeeding Distribution Period will be calculated by
applying the Distribution Rate to the stated liquidation amount
outstanding at the commencement of the Distribution Period and
multiplying each such amount by the actual number of days in the
Distribution Period concerned divided by 360.
"3-Month LIBOR" as used herein, means the London interbank
offered interest rate for three-month U.S. dollar deposits
determined by the Debenture Trustee in the following order of
priority: (i) the rate (expressed as a percentage per annum)
for U.S. dollar deposits having a three-month maturity that
appears on Telerate Page 3750 as of 11:00 a.m. (London time) on
the related Determination Date ("Telerate Page 3750" means the
display designated as "Page 3750" on the Dow Jones Telerate
Service or such other page as may replace Page 3750 on that
service or such other service or services as may be nominated by
the British Bankers' Association as the information vendor for
the purpose of displaying London interbank offered rates for
U.S. dollar deposits); (ii) if such rate cannot be identified on
the related Determination Date, the Debenture Trustee will
request the principal London offices of four leading banks in
the London interbank market to provide such banks' offered
quotations (expressed as percentages per annum) to prime banks
in the London interbank market for U.S. dollar deposits having a
three-month maturity as of 11:00 a.m. (London time) on such
Determination Date. If at least two quotations are provided,
3-Month LIBOR will be the arithmetic mean of such quotations;
(iii) if fewer than two such quotations are provided as
requested in clause (ii) above, the Debenture Trustee will
request four major New York City banks to provide such banks'
offered quotations (expressed as percentages per annum) to
leading European banks for loans in U.S. dollars as of 11:00
a.m. (London time) on such Determination Date. If at least two
such quotations are provided, 3-Month LIBOR will be the
arithmetic mean of such quotations; and (iv) if fewer than two
such quotations are provided as requested in clause (iii) above,
3-Month LIBOR will be a 3-Month LIBOR determined with respect to
the Distribution Period immediately preceding such current
Distribution Period. If the rate for U.S. dollar deposits
having a three-month maturity that initially appears on Telerate
Page 3750 as of 11:00 a.m. (London time) on the related
Determination Date is superseded on the Telerate Page 3750 by a
corrected rate by 12:00 noon (London time) on such Determination
Date, then the corrected rate as so substituted on the
applicable page will be the applicable 3-Month LIBOR for such
Determination Date.
A-1-5
The Distribution Rate for any Distribution Period will at
no time be higher than the maximum rate then permitted by New
York law as the same may be modified by United States law.
All percentages resulting from any calculations on the
Capital Securities will be rounded, if necessary, to the nearest
one hundred-thousandth of a percentage point, with five one-
millionths of a percentage point rounded upward (e.g., 9.876545%
(or .09876545) being rounded to 9.87655% (or .0987655), and all
dollar amounts used in or resulting from such calculation will
be rounded to the nearest cent (with one-half cent being rounded
upward)).
Except as otherwise described below, Distributions on the
Capital Securities will be cumulative, will accrue from the date
of original issuance and will be payable quarterly in arrears on
March 26, June 26, September 26 and December 26 of each year,
commencing on September 26, 2003. The Debenture Issuer has the
right under the Indenture to defer payments of interest on the
Debentures, so long as no Indenture Event of Default has
occurred and is continuing, by extending the interest payment
period for up to 20 consecutive quarterly periods (each an
"Extension Period") at any time and from time to time on the
Debentures, subject to the conditions described below, during
which Extension Period no interest shall be due and payable.
During any Extension Period, interest will continue to accrue on
the Debentures, and interest on such accrued interest will
accrue at an annual rate equal to the Distribution Rate in
effect for each such Extension Period, compounded quarterly from
the date such interest would have been payable were it not for
the Extension Period, to the extent permitted by law (such
interest referred to herein as "Additional Interest"). No
Extension Period may end on a date other than a Distribution
Payment Date. At the end of any such Extension Period, the
Debenture Issuer shall pay all interest then accrued and unpaid
on the Debentures (together with Additional Interest thereon);
provided, however, that no Extension Period may extend beyond
the Maturity Date. Prior to the termination of any Extension
Period, the Debenture Issuer may further extend such period,
provided that such period together with all such previous and
further consecutive extensions thereof shall not exceed 20
consecutive quarterly periods, or extend beyond the Maturity
Date. Upon the termination of any Extension Period and upon the
payment of all accrued and unpaid interest and Additional
Interest, the Debenture Issuer may commence a new Extension
Period, subject to the foregoing requirements. No interest or
Additional Interest 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. During
any Extension Period, Distributions on the Capital Securities
shall be deferred for a period equal to the Extension Period.
If Distributions are deferred, the Distributions due shall be
paid on the date that the related Extension Period terminates,
to Holders of the Securities as they appear on the books and
records of the Trust on the record date immediately preceding
such 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 Property Account of the Trust. The
Trust's funds available for Distribution to the Holders of the
Securities will be limited to payments received from the
Debenture Issuer. The payment of Distributions out of moneys
held by the Trust is guaranteed by the Guarantor pursuant to the
Guarantee.
The Capital Securities shall be redeemable as provided in
the Declaration.
A-1-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers
this Capital Security Certificate to:
- ---------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- ----------------------------------------------------------------
- ----------------------------------------------------------------
(Insert address and zip code of assignee) and irrevocably appoints
- -----------------------------------------------------------------
agent to transfer this Capital Security Certificate on the
books of the Trust. The agent may substitute another to act for
him or her.
Date:
----------------------
Signature:
-----------------------------------
(Sign exactly as your name appears on the other
side of this Capital Security Certificate)
Signature Guarantee:(1)
(1) Signature must be guaranteed by an "eligible guarantor institution"
that is a bank, stockbroker, savings and loan association or credit union
meeting the requirements of the Security registrar, which requirements
include membership or participation in the Securities Transfer Agents
Medallion Program ("STAMP") or such other "signature guarantee program" as
may be determined by the Security registrar in addition to, or in
substitution for, STAMP, all in accordance with the Securities Exchange
Act of 1934, as amended.
A-1-7
EXHIBIT A-2
FORM OF COMMON SECURITY CERTIFICATE
THIS COMMON SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, 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 SECTION 8.1 OF THE DECLARATION.
Certificate Number C-1 526 Common Securities
June 26, 2003
Certificate Evidencing Fixed/Floating Rate Common Securities
of
Wesbanco, Inc. Capital Statutory Trust III
Wesbanco, Inc. Capital Statutory Trust III, a statutory
trust created under the laws of the State of Connecticut (the
"Trust"), hereby certifies that Wesbanco, Inc. (the "Holder") is
the registered owner of common securities of the Trust
representing undivided beneficial interests in the assets of the
Trust (the "Common Securities"). The Common Securities
represented hereby are issued pursuant to, and the designation,
rights, privileges, restrictions, preferences and other terms
and provisions of the Common Securities shall in all respects be
subject to, the provisions of the Amended and Restated
Declaration of Trust of the Trust dated as of June 26, 2003,
among Robert H. Young, Paul M. Limbert and Brent E. Richmond, as
Administrators, U.S. Bank National Association, as Institutional
Trustee, Wesbanco, Inc., as Sponsor, and the holders from time
to time of undivided beneficial interest in the assets of the
Trust including the designation of the terms of the Common
Securities as set forth in Annex I to such amended and restated
declaration, as the same may be amended from time to time (the
"Declaration"). Capitalized terms used herein but not defined
shall have the meaning given them in the Declaration. The
Holder is entitled to the benefits of the Guarantee to the
extent provided therein. The Sponsor will provide a copy of the
Declaration, the Guarantee and the Indenture to the Holder
without charge upon written request to the Sponsor at its
principal place of business.
As set forth in the Declaration, when an Event of Default
has occurred and is continuing, the rights of Holders of Common
Securities to payment in respect of Distributions and payments
upon Liquidation, redemption or otherwise are subordinated to
the rights of payment of Holders of the Capital Securities.
Upon receipt of this Certificate, the Holder is bound by
the Declaration and is entitled to the benefits thereunder.
By acceptance of this Certificate, the Holder agrees to
treat, for United States federal income tax purposes, the
Debentures as indebtedness and the Common Securities as evidence
of undivided beneficial ownership in the Debentures.
This Common Security is governed by, and construed in
accordance with, the laws of the State of Connecticut, without
regard to principles of conflict of laws.
A-2-1
IN WITNESS WHEREOF, the Trust has duly executed this certificate.
WESBANCO, INC. CAPITAL STATUTORY TRUST III
By:
-----------------------------------
Name:
Title: Administrator
A-2-2
[FORM OF REVERSE OF COMMON SECURITY]
Distributions payable on each Common Security will be
payable at an annual rate equal to 5.55% beginning on (and
including) the date of original issuance and ending on (but
excluding) June 26, 2008 and at an annual rate for each
successive Distribution Period beginning on (and including)
June 26, 2008, and each succeeding Distribution Payment Date,
and ending on (but excluding) the next succeeding Distribution
Payment Date, equal to 3-Month LIBOR, determined as described
below, plus 3.10% (the "Coupon Rate"), applied to the stated
liquidation amount of $1,000.00 per Common Security, such rate
being the rate of interest payable on the Debentures to be held
by the Institutional Trustee. Distributions in arrears will bear
interest thereon compounded quarterly at the Distribution Rate
(to the extent permitted by applicable law). The term
"Distributions" as used herein includes cash distributions and
any such compounded distributions unless otherwise noted. A
Distribution is payable only to the extent that payments are
made in respect of the Debentures held by the Institutional
Trustee and to the extent the Institutional Trustee has funds
available therefor. As used herein, "Determination Date" means
the date that is two London Banking Days (i.e., a business day
in which dealings in deposits in U.S. dollars are transacted in
the London interbank market) preceding the commencement of the
relevant Distribution Period. In the event that any date on
which a Distribution is payable on this Common Security is not a
Business Day, then a payment of the Distribution payable on such
date will be made on the next succeeding day which is a Business
Day (and without any interest or other payment in respect of any
such delay), except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same
force and effect as if made on the date the payment was
originally payable. The amount of the Distribution payable (i)
for any Distribution Period commencing on or after the date of
original issuance but before June 26, 2008 will be computed on
the basis of a 360-day year of twelve 30-day months, and (ii)
for the Distribution Period commencing on June 26, 2008 and each
succeeding Distribution Period will be calculated by applying
the Distribution Rate to the stated liquidation amount
outstanding at the commencement of the Distribution Period and
multiplying each such amount by the actual number of days in the
Distribution Period concerned divided by 360.
"3-Month LIBOR" as used herein, means the London interbank
offered interest rate for three-month U.S. dollar deposits
determined by the Debenture Trustee in the following order of
priority: (i) the rate (expressed as a percentage per annum)
for U.S. dollar deposits having a three-month maturity that
appears on Telerate Page 3750 as of 11:00 a.m. (London time) on
the related Determination Date ("Telerate Page 3750" means the
display designated as "Page 3750" on the Dow Jones Telerate
Service or such other page as may replace Page 3750 on that
service or such other service or services as may be nominated by
the British Bankers' Association as the information vendor for
the purpose of displaying London interbank offered rates for
U.S. dollar deposits); (ii) if such rate cannot be identified on
the related Determination Date, the Debenture Trustee will
request the principal London offices of four leading banks in
the London interbank market to provide such banks' offered
quotations (expressed as percentages per annum) to prime banks
in the London interbank market for U.S. dollar deposits having a
three-month maturity as of 11:00 a.m. (London time) on such
Determination Date. If at least two quotations are provided, 3-
Month LIBOR will be the arithmetic mean of such quotations;
(iii) if fewer than two such quotations are provided as
requested in clause (ii) above, the Debenture Trustee will
request four major New York City banks to provide such banks'
offered quotations (expressed as percentages per annum) to
leading European banks for loans in U.S. dollars as of 11:00
a.m. (London time) on such Determination Date. If at least two
such quotations are provided, 3-Month LIBOR will be the
arithmetic mean of such quotations; and (iv) if fewer than two
such quotations are provided as requested in clause (iii) above,
3-Month LIBOR will be a 3-Month LIBOR determined with respect to
the Distribution Period immediately preceding such current
Distribution Period. If the rate for U.S. dollar deposits
having a three-month maturity that initially appears on Telerate
Page 3750 as of 11:00 a.m. (London time) on the related
Determination Date is superseded on the Telerate Page 3750 by a
corrected rate by 12:00 noon (London time) on such Determination
Date, then the corrected rate as so substituted on the
applicable page will be the applicable 3-Month LIBOR for such
Determination Date.
A-2-3
The Distribution Rate for any Distribution Period will at
no time be higher than the maximum rate then permitted by New
York law as the same may be modified by United States law.
All percentages resulting from any calculations on the
Common Securities will be rounded, if necessary, to the nearest
one hundred-thousandth of a percentage point, with five one-
millionths of a percentage point rounded upward (e.g., 9.876545%
(or .09876545) being rounded to 9.87655% (or .0987655), and all
dollar amounts used in or resulting from such calculation will
be rounded to the nearest cent (with one-half cent being rounded
upward)).
Except as otherwise described below, Distributions on the
Common Securities will be cumulative, will accrue from the date
of original issuance and will be payable quarterly in arrears on
March 26, June 26, September 26 and December 26 of each year,
commencing on September 26, 2003. The Debenture Issuer has the
right under the Indenture to defer payments of interest on the
Debentures, so long as no Indenture Event of Default has
occurred and is continuing, by extending the interest payment
period for up to 20 consecutive quarterly periods (each an
"Extension Period") at any time and from time to time on the
Debentures, subject to the conditions described below, during
which Extension Period no interest shall be due and payable.
During any Extension Period, interest will continue to accrue on
the Debentures, and interest on such accrued interest will
accrue at an annual rate equal to the Distribution Rate in
effect for each such Extension Period, compounded quarterly from
the date such interest would have been payable were it not for
the Extension Period, to the extent permitted by law (such
interest referred to herein as "Additional Interest"). No
Extension Period may end on a date other than a Distribution
Payment Date. At the end of any such Extension Period, the
Debenture Issuer shall pay all interest then accrued and unpaid
on the Debentures (together with Additional Interest thereon);
provided, however, that no Extension Period may extend beyond
the Maturity Date. Prior to the termination of any Extension
Period, the Debenture Issuer may further extend such period,
provided that such period together with all such previous and
further consecutive extensions thereof shall not exceed 20
consecutive quarterly periods, or extend beyond the Maturity
Date. Upon the termination of any Extension Period and upon the
payment of all accrued and unpaid interest and Additional
Interest, the Debenture Issuer may commence a new Extension
Period, subject to the foregoing requirements. No interest or
Additional Interest 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. During
any Extension Period, Distributions on the Common Securities
shall be deferred for a period equal to the Extension Period.
If Distributions are deferred, the Distributions due shall be
paid on the date that the related Extension Period terminates,
to Holders of the Securities as they appear on the books and
records of the Trust on the record date immediately preceding
such 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 Property Account of the Trust. The
Trust's funds available for Distribution to the Holders of the
Securities will be limited to payments received from the
Debenture Issuer.
The Common Securities shall be redeemable as provided in
the Declaration.
A-2-4
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers
this Common Security Certificate to:
- ---------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- ---------------------------------------------------------------------
- ---------------------------------------------------------------------
(Insert address and zip code of assignee) and irrevocably appoints
- ---------------------------------------------------------------------
------------------------------------------------------ agent to
transfer this Common Security Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
Date:
--------------------------------
Signature:
---------------------------
(Sign exactly as your name appears on the other side of this Common
Security Certificate)
Signature:
-----------------------------
(Sign exactly as your name appears on the other side of this Common
Security Certificate)
Signature Guarantee(2)
(2) Signature must be guaranteed by an "eligible guarantor institution" that
is a bank, stockbroker, savings and loan association or credit union,
meeting the requirements of the Security registrar, which requirements
include membership or participation in the Securities Transfer Agents
Medallion Program ("STAMP") or such other "signature guarantee program" as
may be determined by the Security registrar in addition to, or in
substitution for, STAMP, all in accordance with the Securities Exchange Act
of 1934, as amended.
A-2-5
EXHIBIT B
SPECIMEN OF INITIAL DEBENTURE
(See Tab No. 16)
B-1
EXHIBIT C
PLACEMENT AGREEMENT
(See Tab No. 1)
C-1