EXHIBIT 4.5
FORM OF
AMENDED AND RESTATED DECLARATION OF TRUST
Dated as of __________ __, ____
By and Among
BANK UNITED CORP.,
as Sponsor
_______________,
as Regular Trustee
_______________,
as Regular Trustee
_______________,
as Regular Trustee
BANK OF NEW YORK, DELAWARE,
as Property Trustee
And
BANK OF NEW YORK, DELAWARE,
as Delaware Trustee
CROSS REFERENCE TABLE*
SECTION OF TRUST
INDENTURE ACT OF SECTION OF
1939, AS AMENDED AGREEMENT
- ---------------- ----------
310(A).....................................................................6.3
310(B)..........................................................6.3(C); 6.3(D)
310(C)............................................................INAPPLICABLE
311(A)..................................................................2.2(B)
311(B)..................................................................2.2(B)
311(C)............................................................INAPPLICABLE
312(A)..................................................................2.2(A)
312(B)..................................................................2.2(B)
312(C)............................................................INAPPLICABLE
313(A).....................................................................2.3
313(B).....................................................................2.3
313(C).....................................................................2.3
313(D).....................................................................2.3
314(A).....................................................................2.4
314(B)............................................................INAPPLICABLE
314(C).....................................................................2.5
314(D)............................................................INAPPLICABLE
314(E).....................................................................2.5
314(F)............................................................INAPPLICABLE
315(A).........................................................3.9(B); 3.10(A)
315(B)..................................................................2.7(A)
315(C)..................................................................3.9(A)
315(D)..................................................................3.9(B)
316(A).....................................................2.6; 7.5(B); 7.6(C)
316(B)............................................................INAPPLICABLE
316(C)............................................................INAPPLICABLE
317(A)....................................................................3.16
317(B)............................................................INAPPLICABLE
318(A)..................................................................2.1(C)
- --------
* THIS CROSS-REFERENCE TABLE DOES NOT CONSTITUTE PART OF THE AGREEMENT AND
SHALL NOT HAVE ANY BEARING UPON THE INTERPRETATION OF ANY OF ITS TERMS OR
PROVISIONS.
TABLE OF CONTENTS
PAGE
ARTICLE 1
INTERPRETATION AND DEFINITIONS
SECTION 1.1 INTERPRETATION AND DEFINITIONS............................1
AFFILIATE........................................................2
AUTHORIZED OFFICER...............................................2
BENEFICIAL OWNERS................................................2
BUSINESS DAY.....................................................2
BUSINESS TRUST ACT...............................................2
CERTIFICATE......................................................2
CERTIFICATE OF TRUST.............................................2
CLOSING DATE.....................................................3
CODE ...........................................................3
COMMISSION.......................................................3
COMMON SECURITY..................................................3
COMMON SECURITY CERTIFICATE......................................3
COMMON SECURITIES HOLDER.........................................3
CORPORATE TRUST OFFICE...........................................3
COVERED PERSON...................................................3
DEPOSITARY.......................................................3
DEPOSITARY PARTICIPANT...........................................3
DIRECT ACTION....................................................3
DISTRIBUTION.....................................................3
EXCHANGE ACT.....................................................3
FIDUCIARY INDEMNIFIED PERSON.....................................4
FISCAL YEAR......................................................4
GLOBAL SECURITY..................................................4
GUARANTEE........................................................4
HOLDER...........................................................4
INDEMNIFIED PERSON...............................................4
INDENTURE........................................................4
INDENTURE EVENT OF DEFAULT.......................................4
INDENTURE TRUSTEE................................................4
INDENTURE TRUSTEE................................................4
INVESTMENT COMPANY...............................................4
INVESTMENT COMPANY ACT...........................................4
INVESTMENT COMPANY EVENT.........................................4
ISSUER...........................................................5
JUNIOR SUBORDINATED DEBT SECURITIES..............................5
JUNIOR SUBORDINATED DEBT-SECURITIES ISSUER INDEMNIFIED PERSON....5
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LEGAL ACTION.....................................................5
LIST OF HOLDERS..................................................5
MAJORITY IN LIQUIDATION AMOUNT...................................5
NEW YORK STOCK EXCHANGE..........................................5
OFFICERS' CERTIFICATE............................................5
PAYING AGENT.....................................................6
PAYMENT AMOUNT...................................................6
PREFERRED SECURITY...............................................6
PREFERRED SECURITY CERTIFICATE...................................6
PERSON...........................................................6
PROPERTY ACCOUNT.................................................6
PROPERTY TRUSTEE.................................................6
PRO RATA.........................................................6
QUORUM...........................................................6
REDEMPTION/DISTRIBUTION NOTICE...................................6
REDEMPTION PRICE.................................................6
REGULAR TRUSTEE..................................................7
REGULATORY CAPITAL EVENT.........................................7
RELATED PARTY....................................................7
RESPONSIBLE OFFICER..............................................7
SECURITIES.......................................................7
SECURITIES ACT...................................................7
SPECIAL EVENT....................................................7
SPONSOR..........................................................7
SUCCESSOR DELAWARE TRUSTEE.......................................7
SUCCESSOR ENTITY.................................................7
SUCCESSOR PROPERTY TRUSTEE.......................................8
SUCCESSOR SECURITY...............................................8
SUPER MAJORITY...................................................8
TAX EVENT........................................................8
10% IN LIQUIDATION AMOUNT........................................8
TREASURY REGULATIONS.............................................8
TRUST ENFORCEMENT EVENT..........................................8
TRUST INDENTURE ACT..............................................8
TRUSTEE..........................................................8
ARTICLE 2
TRUST INDENTURE ACT
SECTION 2.1 TRUST INDENTURE ACT; APPLICATION..........................9
SECTION 2.2 LISTS OF HOLDERS OF SECURITIES............................9
SECTION 2.3 REPORTS BY THE PROPERTY TRUSTEE..........................10
SECTION 2.4 PERIODIC REPORTS TO THE PROPERTY TRUSTEE.................10
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PAGE
SECTION 2.5 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.........10
SECTION 2.6 TRUST ENFORCEMENT EVENTS; WAIVER.........................10
SECTION 2.7 TRUST ENFORCEMENT EVENT; NOTICE..........................12
ARTICLE 3
ORGANIZATION
SECTION 3.1 NAME AND ORGANIZATION....................................12
SECTION 3.2 OFFICE...................................................13
SECTION 3.3 PURPOSE..................................................13
SECTION 3.4 AUTHORITY................................................13
SECTION 3.5 TITLE TO PROPERTY OF THE TRUST...........................14
SECTION 3.6 POWERS AND DUTIES OF THE REGULAR TRUSTEES................14
SECTION 3.7 PROHIBITION OF ACTIONS BY THE TRUST AND THE TRUSTEES.....17
SECTION 3.8 POWERS AND DUTIES OF THE PROPERTY TRUSTEE................18
SECTION 3.9 CERTAIN DUTIES AND RESPONSIBILITIES OF THE PROPERTY
TRUSTEE.................................................20
SECTION 3.10 CERTAIN RIGHTS OF PROPERTY TRUSTEE......................22
SECTION 3.11 DELAWARE TRUSTEE........................................25
SECTION 3.12 EXECUTION OF DOCUMENTS..................................25
SECTION 3.13 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES..25
SECTION 3.14 DURATION OF TRUST.......................................25
SECTION 3.15 MERGERS.................................................25
SECTION 3.16 PROPERTY TRUSTEE MAY FILE PROOFS OF CLAIM...............27
ARTICLE 4
SPONSOR
SECTION 4.1 RESPONSIBILITIES OF THE SPONSOR..........................28
SECTION 4.2 INDEMNIFICATION AND FEES AND EXPENSES OF THE TRUSTEES....29
ARTICLE 5
TRUST COMMON SECURITIES HOLDER
SECTION 5.1 ISSUER'S PURCHASE OF COMMON SECURITIES...................29
SECTION 5.2 COVENANTS OF THE COMMON SECURITIES HOLDER................29
ARTICLE 6
TRUSTEES
SECTION 6.1 NUMBER OF TRUSTEES.......................................30
SECTION 6.2 DELAWARE TRUSTEE; ELIGIBILITY............................30
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PAGE
SECTION 6.3 PROPERTY TRUSTEE; ELIGIBILITY............................30
SECTION 6.4 QUALIFICATIONS OF REGULAR TRUSTEES AND DELAWARE TRUSTEE
GENERALLY...............................................31
SECTION 6.5 INITIAL REGULAR TRUSTEES.................................31
SECTION 6.6 APPOINTMENT, REMOVAL AND RESIGNATION OF TRUSTEES.........32
SECTION 6.7 VACANCIES AMONG TRUSTEES.................................33
SECTION 6.8 EFFECT OF VACANCIES......................................33
SECTION 6.9 MEETINGS.................................................34
SECTION 6.10 DELEGATION OF POWER.....................................34
SECTION 6.11 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS...............................................34
ARTICLE 7
TERMS OF SECURITIES
SECTION 7.1 GENERAL PROVISIONS REGARDING SECURITIES..................35
SECTION 7.2 DISTRIBUTIONS............................................37
SECTION 7.3 REDEMPTION OF SECURITIES.................................38
SECTION 7.4 REDEMPTION PROCEDURES....................................39
SECTION 7.5 VOTING RIGHTS OF PREFERRED SECURITIES....................40
SECTION 7.6 VOTING RIGHTS OF COMMON SECURITIES.......................42
SECTION 7.7 PAYING AGENT.............................................43
SECTION 7.8 LISTING..................................................44
SECTION 7.9 TRANSFER OF SECURITIES...................................44
SECTION 7.10 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES.......45
SECTION 7.11 DEEMED SECURITY HOLDERS..................................46
SECTION 7.12 GLOBAL SECURITIES.......................................46
SECTION 7.13 OVER-ALLOTMENT OPTION...................................48
ARTICLE 8
DISSOLUTION AND TERMINATION OF TRUST
SECTION 8.1 DISSOLUTION AND TERMINATION OF TRUST.....................49
SECTION 8.2 LIQUIDATION DISTRIBUTION UPON DISSOLUTION OF THE TRUST...50
ARTICLE 9
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, DELAWARE TRUSTEES OR OTHERS
SECTION 9.1 LIABILITY................................................51
SECTION 9.2 EXCULPATION..............................................51
SECTION 9.3 FIDUCIARY DUTY...........................................52
SECTION 9.4 INDEMNIFICATION..........................................53
SECTION 9.5 OUTSIDE BUSINESSES.......................................56
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ARTICLE 10
ACCOUNTING
SECTION 10.1 FISCAL YEAR.............................................56
SECTION 10.2 CERTAIN ACCOUNTING MATTERS..............................57
SECTION 10.3 BANKING.................................................57
SECTION 10.4 WITHHOLDING.............................................57
ARTICLE 11
AMENDMENTS AND MEETINGS
SECTION 11.1 AMENDMENTS..............................................58
SECTION 11.2 MEETINGS OF THE HOLDERS OF SECURITIES; ACTION BY
WRITTEN CONSENT........................................60
ARTICLE 12
REPRESENTATIONS OF PROPERTY TRUSTEE
AND DELAWARE TRUSTEE
SECTION 12.1 REPRESENTATIONS AND WARRANTIES OF THE PROPERTY TRUSTEE..62
SECTION 12.2 REPRESENTATIONS AND WARRANTIES OF THE DELAWARE TRUSTEE..63
ARTICLE 13
MISCELLANEOUS
SECTION 13.1 NOTICES.................................................63
SECTION 13.2 GOVERNING LAW...........................................64
SECTION 13.3 INTENTION OF THE PARTIES................................64
SECTION 13.4 HEADINGS................................................65
SECTION 13.5 SUCCESSORS AND ASSIGNS..................................65
SECTION 13.6 PARTIAL ENFORCEABILITY..................................65
SECTION 13.7 COUNTERPARTS............................................65
EXHIBITS
EXHIBIT A FORM OF PREFERRED SECURITY CERTIFICATE
EXHIBIT B FORM OF COMMON SECURITY CERTIFICATE
v
AMENDED AND RESTATED DECLARATION OF TRUST
This AMENDED AND RESTATED DECLARATION OF TRUST (the
"Declaration"), dated as of , , is entered into by and among BANK UNITED CORP.,
a Delaware corporation, as sponsor (the "Sponsor"), _____________,
________________ and _______________, as the initial regular trustees
(collectively, the "Regular Trustees"), Bank of New York, Delaware, a Delaware
corporation, as the initial property trustee (the "Property Trustee") and the
initial Delaware trustee (the "Delaware Trustee" and, together with the Regular
Trustees and the Property Trustee, the "Trustees"), not in their individual
capacities but solely as Trustees, and the holders, from time to time, of
undivided beneficial ownership interests in the Trust to be issued pursuant to
this Declaration.
RECITALS
WHEREAS, the Trustees and the Sponsor established Bank United
Capital Trust (the "Trust"), a business trust under the Business Trust Act (as
defined, together with other capitalized terms, herein) pursuant to a
Declaration of Trust dated as of April 7, 1999, (the "Original Declaration") and
a Certificate of Trust (the "Certificate of Trust") filed with the Secretary of
State of the State of Delaware on April 7, 1999;
WHEREAS, the sole purpose of the Trust shall be to issue and sell
certain securities representing undivided beneficial ownership interests in the
assets of the Trust, to invest the proceeds from such sales in the Debentures
issued by the Issuer and to engage in only those activities necessary or
incidental thereto; and
WHEREAS, the parties hereto, 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 business trust under the Business Trust Act and that
this Declaration constitute the governing instrument of such business trust, the
Trustees hereby declare that all assets contributed to the Trust be held in
trust for the benefit of the Holders, from time to time, of the Securities
representing undivided beneficial ownership interests in the assets of the Trust
issued hereunder, subject to the provisions of this Declaration.
ARTICLE 1
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Interpretation and Definitions.
Unless the context otherwise requires:
(a) capitalized terms used in this Declaration but not defined in
the preamble above have the meanings assigned to them in this Section 1.1;
2
(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, Sections,
Recitals and Exhibits are to Articles and Sections of, or Recitals and Exhibits
to, this Declaration unless otherwise specified;
(e) unless otherwise defined in this Declaration, a term defined in
the Trust Indenture Act has the same meaning when used in this Declaration; and
(f) a reference to the singular includes the plural and vice versa
and a reference to any masculine form of a term shall include the feminine form
of a term, as applicable.
(g) the following terms have the following meanings:
"AFFILIATE" has the same meaning as given to that term in Rule 405
of the Securities Act or any successor rule thereunder.
"APPLICABLE REGULATORY AUTHORITIES" means the Office of Thrift
Supervision, or any successor thereto, or any other regulatory authority of the
United States having jurisdiction over the Sponsor.
"AUTHORIZED OFFICER" of a Person means any Person that is authorized
to bind such Person.
"BENEFICIAL OWNERS" means, for Preferred Securities represented by a
Global Security, the Person who acquires an interest in the Preferred Securities
which is reflected on the records of the Depositary through the Depositary
Participants.
"BUSINESS DAY" means any day, other than a Saturday or Sunday, that
is not a day on which banking institutions in the Borough of Manhattan, The City
of New York are authorized or required by law, regulation or executive order to
close.
"BUSINESS TRUST ACT" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code Section 3801 et seq., as it may be amended from time to time,
or any successor legislation.
"CERTIFICATE" means a Common Security Certificate or a Preferred
Security Certificate.
"CERTIFICATE OF TRUST" has the meaning specified in the Recitals
hereto.
3
"CLOSING DATE" means the date on which the Preferred Securities are
issued and sold, PROVIDED that if the Trust and the Sponsor grant the
underwriters or initial purchasers an option to purchase an additional amount of
Preferred Securities, pursuant to Section 7.13(a), including for the purpose of
covering over-allotments, pursuant to the underwriting agreement or purchase
agreement, as the case may be, and such option is so exercised, then the term
"Closing Date" shall mean such initial or second closing date, as the context
requires.
"CODE" means the Internal Revenue Code of 1986, as amended from time
to time, or any successor legislation. A reference to a specific section of the
Code refers not only to such specific section but also to any corresponding
provision of any federal tax statute enacted after the date of this Declaration,
as such specific section or corresponding provision is in effect on the date of
application of the provisions of this Declaration containing such reference.
"COMMISSION" means the Securities and Exchange Commission or any
successor thereto.
"COMMON SECURITY" has the meaning specified in Section 7.1
"COMMON SECURITY CERTIFICATE" means a definitive certificate in
fully registered form representing a Common Security, substantially in the form
of Exhibit B hereto.
"COMMON SECURITIES HOLDER" means Bank United Corp., in its capacity
as purchaser and holder of all of the Common Securities issued by the Trust.
"CORPORATE TRUST OFFICE" means the principal office of the Property
Trustee at which at any particular time its corporate trust business shall be
administered, which office at the date of execution of this Declaration is
located at White Clay Center, Route 273, Newark, Delaware 19711, Attention:
[Corporate Trust Services Division].
"COVERED PERSON" means (a) any officer, director, shareholder,
partner, member, representative, employee or agent of (i) the Trust or (ii) the
Trust's Affiliates; and (b) any Holder.
"DEPOSITARY" means, with respect to Securities issuable in whole or
in part in the form of one or more Global Securities, a clearing agency
registered under the Exchange Act that is designated to act as Depositary for
such Securities.
"DEPOSITARY PARTICIPANT" means a member of, or participant in, the
Depositary.
"DIRECT ACTION" has the meaning specified in Section 3.8(e).
"DISTRIBUTION" means a distribution payable to Holders of Securities
in accordance with Section 7.2.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended
from time to time, or any successor legislation.
4
"FIDUCIARY INDEMNIFIED PERSON" has the meaning set forth in Section
9.4(b).
"FISCAL YEAR" has the meaning specified in Section 10.1.
"GLOBAL SECURITY" means a fully registered, global Preferred
Security Certificate.
"GUARANTEE" means the Guarantee Agreement, dated as of ________ __,
____, of the Sponsor in respect of the Securities.
"HOLDER" means any holder of Securities, as registered on the books
and records of the Trust; provided, however, that in determining whether the
Holders of the requisite liquidation amount of Preferred Securities have voted
on any matter provided for in this Declaration, then for the purpose of such
determination only (and not for any other purpose hereunder), if the Preferred
Securities remain in the form of one or more Global Securities and if the
Depositary which is the holder of such Global Securities has sent an omnibus
proxy to the Trust assigning voting rights to Depositary Participants to whose
accounts the Preferred Securities are credited on the record date, the term
"Holders" shall mean such Depositary Participants acting at the direction of the
Beneficial Owners.
"INDEMNIFIED PERSON" means an Issuer Indemnified Person or a
Fiduciary Indemnified Person.
"INDENTURE" means the Indenture, dated as of , 1999, between the
Issuer and Bank of New York, as Trustee, pursuant to which the Debentures are to
be issued.
"INDENTURE EVENT OF DEFAULT" has the meaning given to the term
"Event of Default" in the Indenture.
"INDENTURE TRUSTEE" means Bank of New York, in its capacity as
trustee under the Indenture until a successor is appointed thereunder, and
thereafter means such successor trustee.
"INDENTURE TRUSTEE" has the meaning specified in Section 6.2.
"INVESTMENT COMPANY" means an investment company as defined in the
Investment Company Act and the regulations promulgated thereunder.
"INVESTMENT COMPANY ACT" means the Investment Company Act of 1940,
as amended from time to time, or any successor legislation.
"INVESTMENT COMPANY EVENT" means the receipt by the Trust of an
opinion of a nationally recognized independent counsel, to the effect that, as a
result of the occurrence of a change in law or regulation or a written change in
interpretation or application of law or regulation by any legislative body,
court, governmental agency or regulatory authority (a "Change in 1940 Act Law"),
there is more than an insubstantial risk that the Trust is or will be
5
considered an "investment company" that is required to be registered under the
Investment Company Act, which Change in 1940 Act Law becomes effective on or
after the Closing Date.
"ISSUER" means Bank United Corp., in its capacity as issuer of the
Junior Subordinated Debt Securities under the Indenture.
"JUNIOR SUBORDINATED DEBT SECURITIES" means the junior subordinated
debt securities to be issued by the Issuer under the Indenture and held by the
Property Trustee.
"JUNIOR SUBORDINATED DEBT-SECURITIES ISSUER INDEMNIFIED PERSON"
means (a) any Regular Trustee; (b) any Affiliate of any Regular Trustee; (c) any
officers, directors, shareholders, members, partners, employees, representatives
or agents of any Regular Trustee or any Affiliate thereof; or (d) any officer,
employee or agent of the Trust or its Affiliates.
"LEGAL ACTION" has the meaning specified in Section 3.6(g).
"LIST OF HOLDERS" has the meaning specified in Section 2.2(a).
"MAJORITY IN LIQUIDATION AMOUNT" means, except as provided in the
terms of the Preferred Securities or by the Trust Indenture Act, Holder(s) of
outstanding Securities, voting together as a single class, or, as the context
may require, Holders of outstanding Preferred Securities or Holders of
outstanding Common Securities, voting separately as a class, who are the record
owners of more than 50% of the aggregate liquidation amount (including the
stated amount that would be paid on redemption, liquidation or otherwise, plus
accumulated and unpaid Distributions to the date upon which the voting
percentages are determined) of all outstanding Securities of the relevant class.
"NEW YORK STOCK EXCHANGE" means the New York Stock Exchange, Inc. or
any successor thereto.
"OFFICERS' CERTIFICATE" means, with respect to any Person, a
certificate signed on behalf of such Person by two Authorized Officers of such
Person. Any Officers' Certificate delivered with respect to compliance with a
condition or covenant provided for in this Declaration shall include:
(a) a statement that each officer signing the Officers' Certificate
has read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer on behalf of such Person in rendering
the Officers' Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
on behalf of such
6
Person 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
acting on behalf of such Person, such condition or covenant has been complied
with; provided, that the term "Officers' Certificate", when used with reference
to Regular Trustees who are natural persons shall mean a certificate signed by
two or more of the Regular Trustees which otherwise satisfies the foregoing
requirements.
"OPTION" has the meaning specified in Section 7.13(a).
"PAYING AGENT" has the meaning specified in Section 3.8(h).
"PAYMENT AMOUNT" has the meaning specified in Section 7.2(c).
"PREFERRED SECURITY" has the meaning specified in Section 7.1.
"PREFERRED SECURITY CERTIFICATE" means a definitive certificate in
fully registered form representing a Preferred Security, substantially in the
form of Exhibit A.
"PERSON" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"PROPERTY ACCOUNT" has the meaning specified in Section 3.8(c).
"PROPERTY TRUSTEE" means the Trustee meeting the eligibility
requirements set forth in Section 6.3.
"PRO RATA" means pro rata to each Holder of Securities according to
the aggregate liquidation amount of the Securities held by the relevant Holder
in relation to the aggregate liquidation amount of all Securities outstanding.
"QUORUM" means a majority of the Regular Trustees or, if there are
only two Regular Trustees, both of them.
"REDEMPTION/DISTRIBUTION NOTICE" has the meaning specified in
Section 7.4(a) hereto.
"REDEMPTION PRICE" means the amount for which the Securities will be
redeemed, which amount will equal (i) the redemption price paid by the Issuer to
repay or redeem, in whole or in part, the Debentures held by the Trust plus an
amount equal to accumulated and unpaid Distributions on such Securities through
the date of their redemption or (ii) such lesser amount as will be received by
the Trust in respect of the Debentures so repaid or redeemed.
7
"REGULAR TRUSTEE" means any Trustee other than the Property Trustee
and the Delaware Trustee.
"REGULATORY CAPITAL EVENT" means the receipt by the Trust of an
opinion of independent bank regulatory counsel experienced in such matters to
the effect that, as a result of (a) any amendment to or change (including any
announced prospective change) in the laws (or any regulations thereunder) of the
United States or any rules, guidelines or policies of the Applicable Regulatory
Authorities or (b) any official administrative pronouncement or judicial
decision for interpreting or applying such laws or regulations which amendment
or change is effective or such pronouncement or decision is announced on or
after the date of original issuance of the Preferred Securities, the Preferred
Securities do not constitute, or within 90 days of the date thereof, will not
constitute Tier 1 capital (or its then equivalent) as that concept is used in
the guidelines or regulations issued by the Board of Governors of the Federal
Reserve System; PROVIDED, HOWEVER, that the distribution of the Securities in
connection with the liquidation of the Trust by the Issuer shall not in and of
itself constitute a Regulatory Capital Event unless such liquidation shall have
occurred in connection with a Tax Event or an Investment Company Event.
"RELATED PARTY" means, with respect to the Sponsor, any direct or
wholly owned subsidiary of the Sponsor or any Person that owns, directly or
indirectly, 100% of the outstanding voting securities of the Sponsor.
"RESPONSIBLE OFFICER" means, with respect to the Property Trustee,
any officer with direct responsibility for the administration of this
Declaration and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of that officer's
knowledge of and familiarity with the particular subject.
"SECURITIES" means the Common Securities and the Preferred
Securities.
"SECURITIES ACT" means the Securities Act of 1933, as amended from
time to time, or any successor legislation.
"SPECIAL EVENT" means a Tax Event, a Regulatory Capital Event or an
Investment Company Event.
"SPONSOR" means Bank United Corp., a Delaware corporation, or any
successor entity in a merger, consolidation, amalgamation or replacement by or
conveyance, transfer or lease of its properties substantially as an entirety, in
its capacity as sponsor of the Trust.
"SUCCESSOR DELAWARE TRUSTEE" has the meaning specified in Section
6.6(b).
"SUCCESSOR ENTITY" has the meaning specified in Section 3.15(b)(i).
"SUCCESSOR PROPERTY TRUSTEE" has the meaning specified in Section
6.6(b).
8
"SUCCESSOR SECURITY" has the meaning specified in Section
3.15(b)(i)b.
"SUPER MAJORITY" has the meaning specified in Section 2.6(a)(ii).
"TAX EVENT" means the receipt by the Trust of an opinion of
independent tax counsel experienced in such matters, to the effect that, as a
result of (a) any amendment to, change in or announced proposed change in the
laws (or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein, or (b) any official
administrative pronouncement, action or judicial decision interpreting or
applying such laws or regulations, which amendment or change becomes effective
or proposed change, pronouncement, action or decision is announced on or after
the Closing Date, 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 the United
States federal income tax with respect to income received or accrued on the
Debentures, (ii) interest payable by the Issuer on the Debentures is not, or
within 90 days of the date of such opinion will not be, deductible, in whole or
in part, by the Issuer 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.
"10% IN LIQUIDATION AMOUNT" means, except as provided in the terms
of the Preferred Securities or by the Trust Indenture Act, Holder(s) of
outstanding Securities, voting together as a single class, or, as the context
may require, Holders of outstanding Preferred 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.
"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 ENFORCEMENT EVENT" in respect of the Securities means an
Indenture Event of Default has occurred and is continuing in respect of the
Debentures.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939, as
amended from time to time, or any successor legislation.
"TRUSTEE" or "TRUSTEES" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue as a trustee in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
9
ARTICLE 2
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
(a) This Declaration is subject to the provisions of the Trust
Indenture Act that are required to be part of this Declaration and shall, to the
extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a
Trustee for the purposes of the Trust Indenture Act.
(c) If and to the extent that any provision of this Declaration
conflicts with the duties imposed by Sections 310 to 317, inclusive, of the
Trust Indenture Act, such imposed duties shall control.
(d) The application of the Trust Indenture Act to this Declaration
shall not affect the Trust's classification as a grantor trust for United States
federal income tax purposes and shall not affect the nature of the Securities as
equity securities representing undivided beneficial ownership interests in the
assets of the Trust.
SECTION 2.2 Lists of Holders of Securities.
(a) Each of the Sponsor and the Regular Trustees on behalf of the
Trust shall provide the Property Trustee (i), except while the Preferred
Securities are represented by one or more Global Securities, at least five
Business Days prior to the date for payment of Distributions, a list, in such
form as the Property Trustee may reasonably require, of the names and addresses
of the Holders of the Securities ("List of Holders") as of the record date
relating to the payment of such Distributions, and (ii) at any other time,
within 30 days of receipt by the Trust of a written request from the Property
Trustee for a List of Holders, as of a date no more than 15 days before such
List of Holders is given to the Property Trustee; provided that neither the
Sponsor nor the Regular Trustees on behalf of the Trust shall be obligated to
provide such List of Holders at any time the List of Holders does not differ
from the most recent List of Holders given to the Property Trustee by the
Sponsor and the Regular Trustees on behalf of the Trust. The Property Trustee
shall preserve, in as current a form as is reasonably practicable, all
information contained in Lists of Holders given to it or which it receives in
the capacity as Paying Agent (if acting in such capacity), provided that the
Property Trustee may destroy any List of Holders previously given to it on
receipt of a new List of Holders.
(b) The Property Trustee shall comply with its obligations under,
and shall be entitled to the benefits of, Sections 311(a), 311(b) and 312(b) of
the Trust Indenture Act.
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SECTION 2.3 Reports by the Property Trustee.
Within 60 days after May 15 of each year (commencing with the year
of the first anniversary of the issuance of the Preferred Securities), the
Property Trustee shall provide to the Holders of the Preferred Securities such
reports as are required by Section 313 of the Trust Indenture Act, if any, in
the form and in the manner provided by Section 313 of the Trust Indenture Act.
The Property Trustee shall also comply with the requirements of Section 313(d)
of the Trust Indenture Act.
SECTION 2.4 Periodic Reports to the Property Trustee.
Each of the Sponsor and the Regular Trustees on behalf of the Trust
shall provide to the Property Trustee such documents, reports and information as
required by Section 314 of the Trust Indenture Act (if any) and the compliance
certificate required by Section 314 of the Trust Indenture Act in the form, in
the manner and at the times required by Section 314 of the Trust Indenture Act.
SECTION 2.5 Evidence of Compliance with Conditions Precedent.
Each of the Sponsor and the Regular Trustees on behalf of the Trust
shall provide to the Property Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Declaration that relate to
any of the matters set forth in Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to Section
314(c)(1) may be given in the form of an Officers' Certificate.
SECTION 2.6 Trust Enforcement Events; Waiver.
(a) The Holders of a Majority in Liquidation Amount of the Preferred
Securities may, by vote or written consent, on behalf of the Holders of all of
the Preferred Securities, waive any past Trust Enforcement Event in respect of
the Preferred Securities and its consequences, provided that, if the underlying
Indenture Event of Default:
(i) is not waivable under the Indenture, the Trust
Enforcement Event under the Declaration shall also not
be waivable; or
(ii) requires the consent or vote of the Holders of greater
than a majority in principal amount of the Debentures (a
"Super Majority") to be waived under the Indenture, the
related Trust Enforcement Event under the Declaration
may only be waived by the vote or written consent of the
Holders of at least the proportion in liquidation amount
of the Preferred Securities that the relevant Super
Majority represents of the aggregate principal amount of
the Debentures outstanding.
The foregoing provisions of this Section 2.6(a) shall be in lieu of
Section 316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of
the Trust Indenture Act
11
is hereby expressly excluded from this Declaration and the Securities, as
permitted by the Trust Indenture Act. Upon such waiver, any such default shall
cease to exist, and any Trust Enforcement Event with respect to the Preferred
Securities arising therefrom shall be deemed to have been cured, for every
purpose of this Declaration and the Preferred Securities, but no such waiver
shall extend to any subsequent or other Trust Enforcement Event with respect to
the Preferred Securities or impair any right consequent thereon. Any waiver by
the Holders of the Preferred Securities of a Trust Enforcement Event with
respect to the Preferred Securities shall also be deemed to constitute a waiver
by the Holders of the Common Securities of any such Trust Enforcement Event with
respect to the Common Securities for all purposes of this Declaration without
any further act, vote, or consent of the Holders of the Common Securities.
(b) The Holders of a Majority in Liquidation Amount of the Common
Securities may, by vote or written consent, on behalf of the Holders of all of
the Common Securities, waive any past Trust Enforcement Event in respect of the
Common Securities and its consequences, provided that, if the underlying
Indenture Event of Default:
(i) is not waivable under the Indenture, except where the
Holders of the Common Securities are deemed to have
waived such Trust Enforcement Event under the
Declaration as provided below in this Section 2.6(b),
the Trust Enforcement Event under the Declaration shall
also not be waivable; or
(ii) requires the consent or vote of a Super Majority to be
waived under the Indenture, except where the Holders of
the Common Securities are deemed to have waived such
Trust Enforcement Event under the Declaration as
provided below in this Section 2.6(b), the Trust
Enforcement Event under the Declaration may only be
waived by the vote or written consent of the Holders of
at least the proportion in liquidation amount of the
Common Securities that the relevant Super Majority
represents of the aggregate principal amount of the
Debentures outstanding;
provided further, each Holder of Common Securities will be deemed to have waived
any Trust Enforcement Event and all Trust Enforcement Events with respect to the
Common Securities and the consequences thereof until all Trust Enforcement
Events with respect to the Preferred Securities have been cured, waived or
otherwise eliminated, and until such Trust Enforcement Events with respect to
the Preferred Securities have been so cured, waived or otherwise eliminated, the
Property Trustee will be deemed to be acting solely on behalf of the Holders of
the Preferred Securities and only the Holders of the Preferred Securities will
have the right to direct the Property Trustee in accordance with the terms of
the Securities. The foregoing provisions of this Section 2.6(b) shall be in lieu
of Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act and such
Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act are hereby
expressly excluded from this Declaration and the Securities, as permitted by the
Trust Indenture Act. Subject to the foregoing provisions of this Section 2.6(b),
upon such cure, waiver or other elimination, any such default shall cease to
exist and any Trust Enforcement Event with respect to the Common Securities
arising therefrom shall be deemed to have been cured for every
12
purpose of this Declaration, but no such waiver shall extend to any subsequent
or other Trust Enforcement Event with respect to the Common Securities or impair
any right consequent thereon.
(c) A waiver of an Indenture Event of Default by the Property
Trustee at the direction of the Holders of the Preferred Securities constitutes
a waiver of the corresponding Trust Enforcement Event with respect to the
Preferred Securities under this Declaration. The foregoing provisions of this
Section 2.6(c) shall be in lieu of Section 316(a)(1)(B) of the Trust Indenture
Act and such Section 316(a)(1)(B) of the Trust Indenture Act is hereby expressly
excluded from this Declaration and the Securities, as permitted by the Trust
Indenture Act.
SECTION 2.7 Trust Enforcement Event; Notice.
(a) The Property Trustee shall, within 90 days after the occurrence
of a Trust Enforcement Event actually known to a Responsible Officer of the
Property Trustee, transmit by mail, first class postage prepaid, to the Holders
of the Securities, notices of all such defaults with respect to the Securities,
unless such defaults have been cured before the giving of such notice (the term
"defaults" for the purposes of this Section 2.7(a) being hereby defined to be an
Indenture Event of Default, not including any periods of grace provided for
therein and irrespective of the giving of any notice provided therein); provided
that, except for a default in the payment of principal of (or premium, if any)
or interest on any of the Debentures, the Property Trustee shall be protected in
withholding such notice if and so long as a Responsible Officer of the Property
Trustee in good faith determines that the withholding of such notice is in the
interests of the Holders of the Securities.
(b) The Property Trustee shall not be deemed to have knowledge of
any default except:
(i) a default under Sections 501(1) and 501(2) of the
Indenture; or
(ii) any default as to which the Property Trustee shall have
received written notice or of which a Responsible
Officer of the Property Trustee charged with the
administration of this Declaration shall have actual
knowledge.
ARTICLE 3
ORGANIZATION
SECTION 3.1 Name and Organization.
The Trust hereby continued is named "Bank United Capital Trust" as
such name may be modified from time to time by the Regular Trustees following
written notice to the Holders of Securities, the Property Trustee and the
Delaware Trustee. The Trust's activities may be conducted under the name of the
Trust or any other name deemed advisable by the Regular Trustees.
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SECTION 3.2 Office.
The address of the principal office of the Trust is c/o Bank United
Corp., 3200 Southwest Freeway, Suite 2600, Houston, Texas 77027. On 10 Business
Days' written notice to the Holders of Securities, the Property Trustee and the
Delaware Trustee, the Regular Trustees may designate another principal office.
SECTION 3.3 Purpose.
The exclusive purposes and functions of the Trust are (a) to issue
and sell Securities and use the gross proceeds from such sale to acquire the
Debentures, and (b) 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 as a grantor trust for United States
federal income tax purposes.
By the acceptance of this Trust, none of the Trustees, the Sponsor,
the Holders of the Preferred Securities or Common Securities or the Preferred
Securities Beneficial Owners will take any position for United States federal
income tax purposes which is contrary to the classification of the Trust as a
grantor trust.
SECTION 3.4 Authority.
Subject to the limitations provided in this Declaration and to the
specific duties of the Property Trustee, the Regular Trustees shall have
exclusive authority to carry out the purposes of the Trust. An action taken by
the Regular Trustees in accordance with their powers shall constitute the act of
and serve to bind the Trust and an action taken by the Property Trustee on
behalf of the Trust in accordance with its powers shall constitute the act of
and serve to bind the Trust. In dealing with the Trustees acting on behalf of
the Trust, no Person shall be required to inquire into the authority of the
Trustees to bind the Trust. Persons dealing with the Trust are entitled to rely
conclusively on the power and authority of the Trustees as set forth in this
Declaration.
(a) Except as expressly set forth in this Declaration and except if
a meeting of the Regular Trustees is called with respect to any matter over
which the Regular Trustees have power to act, any power of the Regular Trustees
may be exercised by, or with the consent of, any one such Regular Trustee.
(b) Unless otherwise determined by the Regular Trustees, and except
as otherwise required by the Business Trust Act or applicable law, any Regular
Trustee is authorized to execute on behalf of the Trust any documents which the
Regular Trustees have the power and authority to cause the Trust to execute
pursuant to Section 3.6(b), provided, that the registration statements referred
to in Section 3.6(b)(i), including any amendments thereto, shall be signed by or
on behalf of a majority of the Regular Trustees; and
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(c) a Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purposes of signing any documents which the Regular Trustees
have power and authority to cause the Trust to execute pursuant to Section 3.6.
SECTION 3.5 Title to Property of the Trust.
Except as provided in Section 3.8 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 ownership interest in the assets of the Trust.
SECTION 3.6 Powers and Duties of the Regular Trustees.
The Regular Trustees shall have the exclusive power, duty and
authority to cause the Trust to engage in the following activities:
(a) to establish the terms and form of the Preferred Securities and
the Common Securities in the manner specified in Section 7.1 and issue and sell
the Preferred Securities and the Common Securities in accordance with this
Declaration; provided, however, that the Trust may issue no more than one series
of Preferred Securities and no more than one series of Common Securities, and,
provided further, that there shall be no interests in the Trust other than the
Securities, and the issuance of Securities shall be limited to a one-time,
simultaneous issuance of both Preferred Securities and Common Securities on the
Closing Date;
(b) in connection with the issue and sale of the Preferred
Securities, at the direction of the Sponsor, to:
(i) execute and file an application, prepared by the
Sponsor, to the New York Stock Exchange or any other
national stock exchange or automated quotation system
for listing of any Preferred Securities, the Guarantee
and the Debentures;
(ii) execute and file with the Commission one or more
registration statements on the applicable forms prepared
by the Sponsor, including any amendments thereto,
pertaining to the Preferred Securities, the Guarantee
and the Debentures;
(iii) execute and file any documents prepared by the Sponsor,
or take any acts as determined by the Sponsor to be
necessary, in order to qualify or register all or part
of the Preferred Securities in any State in which the
Sponsor has determined to qualify or register such
Preferred Securities for sale; and
15
(iv) negotiate the terms of and execute and enter into an
underwriting agreement and other related agreements
providing for the sale of the Preferred Securities;
(c) to acquire the Debentures with the proceeds of the sale of the
Preferred Securities and the Common Securities; provided, however, that the
Regular Trustees shall cause legal title to the Debentures to be held of record
in the name of the Property Trustee for the benefit of the Holders of the
Preferred Securities and the Holders of the Common Securities;
(d) to give the Sponsor and the Property Trustee prompt written
notice of the occurrence of a Special Event; provided that the Regular Trustees
shall consult with the Sponsor and the Property Trustee before taking or
refraining from taking any action in relation to any such Special Event;
(e) to establish a record date with respect to all actions to be
taken hereunder that require a record date be established, including and with
respect to, for the purposes of Section 316(c) of the Trust Indenture Act,
Distributions, voting rights, redemptions and exchanges, and to issue relevant
notices to the Holders of Preferred Securities and Holders, of Common Securities
as to such actions and applicable record dates;
(f) to take all actions and perform such duties as may be required
of the Regular Trustees pursuant to the terms of this Declaration and the
Securities;
(g) to bring or defend, pay, collect, compromise, arbitrate, resort
to legal action or otherwise adjust claims or demands of or against the Trust
("Legal Action"), unless pursuant to Section 3.8(e), the Property Trustee has
the exclusive power to bring such Legal Action;
(h) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors and
consultants to conduct only those services that the Regular Trustees have
authority to conduct directly, and to and pay reasonable compensation for such
services;
(i) to cause the Trust to comply with the Trust's obligations under
the Trust Indenture Act;
(j) to give the certificate required by Section 314(a)(4) of the
Trust Indenture Act to the Property Trustee, which certificate may be executed
by any Regular Trustee;
(k) to incur expenses that are necessary or incidental to carry out
any of the purposes of the Trust;
(l) to act as, or appoint another Person to act as, registrar and
transfer agent for the Securities;
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(m) to give prompt written notice to the Holders of the Securities
of any notice received from the Issuer of its election to defer payments of
interest on the Debentures by extending the interest payment period under the
Debentures as authorized by the Indenture;
(n) to take all action that may be necessary or appropriate for the
preservation and the continuation of the Trust's valid existence, rights,
franchises and privileges as a statutory business trust under the laws of the
State of Delaware and of each other jurisdiction in which such existence is
necessary to protect the limited liability of the Holders of the Preferred
Securities and the Holders of the Common Securities or to enable the Trust to
effect the purposes for which the Trust was created;
(o) to take any action, not inconsistent with applicable law, that
the Regular Trustees determine in their discretion to be necessary or desirable
in carrying out the purposes and functions of the Trust as set out in Section
3.3 or the activities of the Trust as set out in this Section 3.6, including,
but not limited to:
(i) causing the Trust not to be deemed to be an Investment
Company required to be registered under the Investment
Company Act;
(ii) causing the Trust to be classified as a grantor trust
for United States federal income tax purposes; and
(iii) cooperating with the Issuer to ensure that the
Debentures will be treated as indebtedness of the Issuer
for United States federal income tax purposes.
(p) to take all action necessary to cause all applicable tax returns
and tax information reports that are required to be filed with respect to the
Trust to be duly prepared and filed by the Regular Trustees, on behalf of the
Trust; and
(q) to execute and deliver all documents or instruments, perform all
duties and powers, and do all things for and on behalf of the Trust in all
matters necessary or incidental to the foregoing.
The Regular Trustees shall exercise the powers set forth in this
Section 3.6 in a manner that is consistent with the purposes and functions of
the Trust set out in Section 3.3, and the Regular Trustees shall have no power
to, and shall not, take any action that is inconsistent with the purposes and
functions of the Trust set forth in Section 3.3.
Subject to this Section 3.6, the Regular Trustees shall have none of
the powers or the authority of the Property Trustee set forth in Section 3.8.
Any expenses incurred by the Regular Trustees pursuant to this
Section 3.6 shall be reimbursed by the Issuer.
17
SECTION 3.7 Prohibition of Actions by the Trust and the Trustees.
(a) The Trust shall not, and none of the Trustees (including the
Property Trustee) shall cause the Trust to, engage in any activity other than as
required or authorized by this Declaration. In particular, the Trust shall not
and none of the Trustees (including the Property Trustee) shall cause the Trust
to:
(i) invest any proceeds received by the Trust from holding
the Debentures, but shall distribute all such proceeds
to Holders of Securities pursuant to the terms of this
Declaration and of the Securities;
(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;
(v) possess any power or otherwise act in such a way as to
vary the Trust assets;
(vi) possess any power or otherwise act in such a way as to
vary the terms of the Securities in any way whatsoever
(except to the extent expressly authorized in this
Declaration or by the terms of the Securities);
(vii) issue any securities or other evidences of beneficial
ownership of, or beneficial interest in, the Trust other
than the Securities;
(viii) other than as provided in this Declaration or by the
terms of the Securities, (A) direct the time, method and
place of exercising any trust or power conferred upon
the Indenture Trustee with respect to the Junior
Subordinated Debt Securities, (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 an opinion of counsel to the effect that
such modification will not cause more than an
insubstantial risk that the Trust will be deemed an
Investment Company required to be registered under the
Investment Company Act, or the Trust will not be
classified as a grantor trust for United States federal
income tax purposes;
(ix) take any action inconsistent with the status of the
Trust as a grantor trust for United States federal
income tax purposes; or
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(x) revoke any action previously authorized or approved by
vote of the Holders of the Preferred Securities.
SECTION 3.8 Powers and Duties of the Property Trustee.
(a) The legal title to the Junior Subordinated Debt Securities shall
be owned by and held of record in the name of the Property Trustee for the
benefit of the Trust and the Holders of the Securities. The right, title and
interest of the Property Trustee to the Debentures shall vest automatically in
each Person who may hereafter be appointed as Property Trustee in accordance
with Section 6.6. Such vesting and cessation of title shall be effective whether
or not conveyancing documents with regard to the Junior Subordinated Debt
Securities have been executed and delivered.
(b) The Property Trustee shall not transfer its right, title and
interest in the Junior Subordinated Debt Securities to the Regular Trustees or
to the Delaware Trustee (if the Property Trustee does not also act as Delaware
Trustee).
(c) The Property Trustee shall:
(i) establish and maintain a segregated non-interest bearing
trust account (the "Property Account") in the name of
and under the exclusive control of the Property Trustee
on behalf of the Holders of the Securities and, upon the
receipt of payments of funds made in respect of the
Junior Subordinated Debt Securities held by the Property
Trustee, deposit such funds into the Property Account
and make payments to the Holders of the Preferred
Securities and Holders of the Common Securities from the
Property Account in accordance with Section 7.2. Funds
in the Property Account shall be held uninvested until
disbursed in accordance with this Declaration. The
Property Account shall be an account that is maintained
with a banking institution the rating on whose long-term
unsecured indebtedness is at least equal to the rating
assigned to the Preferred Securities by a "nationally
recognized statistical rating organization", within the
meaning of Rule 436(g)(2) under the Securities Act;
(ii) engage in such ministerial activities as shall be
necessary or appropriate to effect the redemption of the
Preferred Securities and the Common Securities to the
extent the Junior Subordinated Debt Securities are
redeemed or mature; and
(iii) upon written notice of distribution issued by the
Regular Trustees in accordance with the terms of the
Securities, engage in such ministerial activities as so
directed and as shall be necessary or appropriate to
effect the distribution of the Junior Subordinated Debt
Securities to Holders of Securities upon the occurrence
of a Special Event.
19
(d) The Property Trustee shall take all actions and perform such
duties as may be specifically required of the Property Trustee pursuant to the
terms of this Declaration and the Securities.
(e) The Property Trustee shall take any Legal Action which arises
out of or in connection with a Trust Enforcement Event of which a Responsible
Officer of the Property Trustee has actual knowledge or the Property Trustee's
duties and obligations under this Declaration or the Trust Indenture Act;
PROVIDED, HOWEVER, that if a Trust Enforcement Event has occurred and is
continuing and such event is attributable to the failure of the Issuer to pay
interest, principal or other required payments on the Junior Subordinated Debt
Securities on the date such interest, principal or other required payments are
otherwise payable (or in the case of redemption, on the redemption date), then a
Holder of Preferred Securities may directly institute a proceeding against the
Issuer for enforcement of payment to such Holder of the principal of or interest
on Junior Subordinated Debt Securities having a principal amount equal to the
aggregate liquidation amount of the Preferred Securities of such Holder (a
"Direct Action") on or after the respective due date specified in the Junior
Subordinated Debt Securities. Notwithstanding anything to the contrary in this
Declaration or the Indenture, the Issuer shall have the right to set-off any
payment it is otherwise required to make under the Indenture in respect of any
Preferred Security to the extent the Issuer has heretofore made, or is currently
on the date of such payment making, a payment under the Guarantee relating to
such Preferred Security or under Section 5.8 of the Indenture.
(f) The Property 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 Securities pursuant to the terms of the Securities;
or
(ii) a Successor Property Trustee has been appointed and has
accepted that appointment in accordance with Section
6.6.
(g) The Property Trustee shall have the legal power to exercise all
of the rights, powers and privileges of a holder of Junior Subordinated Debt
Securities under the Indenture and, if a Trust Enforcement Event actually known
to a Responsible Officer of the Property Trustee occurs and is continuing, the
Property Trustee shall, for the benefit of Holders of the Securities, enforce
its rights as holder of the Junior Subordinated Debt Securities subject to the
rights of the Holders pursuant to the terms of such Securities.
(h) The Property Trustee may authorize one or more Persons (each, a
"Paying Agent") to pay Distributions, redemption payments or liquidation
payments on behalf of the Trust with respect to all Securities and any such
Paying Agent shall comply with Section 317(b) of the Trust Indenture Act. Any
Paying Agent may be removed by the Property Trustee at any time and a successor
Paying Agent or additional Paying Agents may be appointed at any time by the
Property Trustee.
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(i) Subject to this Section 3.8, the Property Trustee shall have
none of the duties, liabilities, powers or the authority of the Regular Trustees
set forth in Section 3.6.
The Property Trustee shall exercise the powers set forth in this
Section 3.8 in a manner that is consistent with the purposes and functions of
the Trust set out in Section 3.3, and the Property Trustee shall have no power
to, and shall not, take any action that is inconsistent with the purposes and
functions of the Trust set out in Section 3.3.
SECTION 3.9 Certain Duties and Responsibilities of the Property
Trustee.
(a) The Property Trustee, before the occurrence of any Trust
Enforcement Event and after the curing of all Trust Enforcement Events 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 Property Trustee. In case a Trust Enforcement Event has
occurred (that has not been cured or waived pursuant to Section 2.6) of which a
Responsible Officer of the Property Trustee has actual knowledge, the Property
Trustee shall exercise such of the rights and powers vested in it by this
Declaration, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
his or her own affairs.
(b) No provision of this Declaration shall be construed to relieve
the Property Trustee from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct, except that:
(i) prior to the occurrence of a Trust Enforcement Event and
after the curing or waiving of all such Trust
Enforcement Events that may have occurred:
a. the duties and obligations of the Property Trustee
shall be determined solely by the express
provisions of this Declaration and the Property
Trustee shall not be liable except for the
performance of such duties and obligations as are
specifically set forth in this Declaration, and no
implied covenants or obligations shall be read
into this Declaration against the Property
Trustee; and
b. in the absence of bad faith on the part of the
Property Trustee, the Property Trustee may
conclusively rely, as to the truth of the
statements and the correctness of the opinions
expressed therein, upon any certificates or
opinions furnished to the Property Trustee and
conforming to the requirements of this
Declaration; but in the case of any such
certificates or opinions that by any provision
hereof are specifically required to be furnished
to the Property Trustee, the Property Trustee
shall be under a duty
21
to examine the same to determine whether or not they
conform to the requirements of this Declaration;
(ii) the Property Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer
of the Property Trustee, unless it shall be proved that
the Property Trustee was negligent in ascertaining the
pertinent facts;
(iii) the Property Trustee shall not be liable with respect to
any action taken or omitted to be taken by it without
negligence, in good faith in accordance with the
direction of the Holders of not less than a Majority in
Liquidation Amount of the Securities relating to the
time, method and place of conducting any proceeding for
any remedy available to the Property Trustee, or
exercising any trust or power conferred upon the
Property Trustee under this Declaration;
(iv) no provision of this Declaration shall require the
Property Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of
any of its rights or powers, if it shall have reasonable
grounds for believing that the repayment of such funds
or liability is not reasonably assured to it under the
terms of this Declaration or indemnity reasonably
satisfactory to the Property Trustee against such risk
or liability is not reasonably assured to it;
(v) the Property Trustee's sole duty with respect to the
custody, safe-keeping and physical preservation of the
Debentures and the Property Account shall be to deal
with such property in a similar manner as the Property
Trustee deals with similar property for its own account,
subject to the protections and limitations on liability
afforded to the Property Trustee under this Declaration
and the Trust Indenture Act;
(vi) the Property Trustee shall have no duty or liability for
or with respect to the value, genuineness, existence or
sufficiency of the Junior Subordinated Debt Securities
or the payment of any taxes or assessments levied
thereon or in connection therewith;
(vii) the Property Trustee shall not be liable for any
interest on any money received by it except as it may
otherwise agree with the Sponsor. Money held by the
Property Trustee need not be segregated from other funds
held by it except in relation to the Property Account
maintained by the Property Trustee pursuant to Section
3.8(c)(i) and except to the extent otherwise required by
law; and
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(viii) the Property Trustee shall not be responsible for
monitoring the compliance by the Regular Trustees or the
Sponsor with their respective duties under this
Declaration, nor shall the Property Trustee be liable
for any default or misconduct of the Regular Trustees or
the Sponsor.
SECTION 3.10 Certain Rights of Property Trustee.
(a) Subject to the provisions of Section 3.9:
(i) the Property Trustee may conclusively rely and shall be
fully protected in acting or refraining from acting upon
any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it
to be genuine and to have been signed, sent or presented
by the proper party or parties;
(ii) any direction or act of the Sponsor or the Regular
Trustees contemplated by this Declaration shall be
sufficiently evidenced by an Officers' Certificate;
(iii) whenever in the administration of this Declaration, the
Property Trustee shall deem it desirable that a matter
be proved or established before taking, suffering or
omitting any action hereunder, the Property Trustee
(unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its
part, request and conclusively rely upon an Officers'
Certificate which, upon receipt of such request, shall
be promptly delivered by the Sponsor or the Regular
Trustees;
(iv) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument
(including any financing or continuation statement or
any filing under tax or securities laws) or any
rerecording, refiling or registration thereof;
(v) the Property Trustee may consult with counsel of its
choice or other experts and the advice or opinion of
such counsel and experts with respect to legal matters
or advice within the scope of such experts' area of
expertise shall be full and complete authorization and
protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in accordance
with such advice or opinion, such counsel may be counsel
to the Sponsor or any of its Affiliates, and may include
any of its employees. The Property Trustee shall have
the right at any time to seek instructions
23
concerning the administration of this Declaration from
any court of competent jurisdiction;
(vi) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by
this Declaration at the request or direction of any
Holder, unless such Holder shall have provided to the
Property Trustee security and indemnity, reasonably
satisfactory to the Property Trustee, against the costs,
expenses (including attorneys' fees and expenses and the
expenses of the Property Trustee's agents, nominees or
custodians) and liabilities that might be incurred by it
in complying with such request or direction, including
such reasonable advances as may be requested by the
Property Trustee; provided that, nothing contained in
this Section 3.10(a) shall be taken to relieve the
Property Trustee, upon the occurrence of a Trust
Enforcement Event, of its obligation to exercise the
rights and powers vested in it by this Declaration;
(vii) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or
other paper or document, but the Property Trustee, in
its discretion, may make such further inquiry or
investigation into such facts or matters as it may see
fit;
(viii) the Property Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or by or through agents, custodians, nominees
or attorneys and the Property Trustee shall not be
responsible for any misconduct or negligence on the part
of any agent or attorney appointed with due care by it
hereunder;
(ix) any action taken by the Property Trustee or its agents
hereunder shall bind the Trust and the Holders of the
Securities, and the signature of the Property Trustee or
its agents alone shall be sufficient and effective to
perform any such action and no third party shall be
required to inquire as to the authority of the Property
Trustee to so act or as to its compliance with any of
the terms and provisions of this Declaration, both of
which shall be conclusively evidenced by the Property
Trustee's or its agent's taking such action;
(x) whenever in the administration of this Declaration the
Property Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or
right or taking any other action hereunder, the Property
Trustee (i) may request instructions from
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the Holders of the Securities which instructions may
only be given by the Holders of the same proportion in
liquidation amount of the Securities as would be
entitled to direct the Property Trustee under the terms
of the Securities in respect of such remedy, right or
action, (ii) may refrain from enforcing such remedy or
right or taking such other action until such
instructions are received, and (iii) shall be protected
in conclusively relying on or acting in or accordance
with such instructions;
(xi) except as otherwise expressly provided by this
Declaration, the Property Trustee shall not be under any
obligation to take any action that is discretionary
under the provisions of this Declaration;
(xii) the Property Trustee shall not be liable for any action
taken, suffered or omitted to be taken by it without
negligence, in good faith and reasonably believed by it
to be authorized or within the discretion, rights or
powers conferred upon it by this Declaration;
(xiii) without prejudice to any other rights available to the
Property Trustee under applicable law, when the Property
Trustee incurs expenses or renders services in
connection with a bankruptcy, 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;
(xiv) the Property Trustee shall not be charged with knowledge
of a Trust Enforcement Event unless a Responsible
Officer of the Property Trustee obtains actual knowledge
of such event or the Property Trustee receives written
notice of such event from Holders holding more than a
Majority in Liquidation Amount of the Preferred
Securities; and
(xv) any action taken by the Property Trustee or its agents
hereunder shall bind the Trust and the Holders of such
Securities, and the signature of the Property Trustee or
one of its agents shall by itself be sufficient and
effective to perform any such action and no third party
shall be required to inquire as to the authority of the
Property Trustee to so act or as to its compliance with
any of the terms and provisions of this Declaration,
both of which shall be conclusively evidenced by the
Property Trustee's or its agent's taking such action.
(b) No provision of this Declaration shall be deemed to impose any
duty or obligation on the Property Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which
25
the Property Trustee shall be unqualified or incompetent in accordance with
applicable law, to perform any such act or acts, or to exercise any such right,
power, duty or obligation. No permissive power or authority available to the
Property Trustee shall be construed to be a duty.
SECTION 3.11 Delaware Trustee.
Notwithstanding any other provision of this Declaration other than
Section 6.2, the Delaware Trustee shall not be entitled to exercise any powers,
nor shall the Delaware Trustee have any of the duties and responsibilities of
the Regular Trustees or the Property Trustee described in this Declaration.
Except as set forth in Section 6.2, the Delaware Trustee shall be a Trustee for
the sole and limited purpose of fulfilling the requirements of Section 3807(a)
of the Business Trust Act. In the event the Delaware Trustee shall at any time
be required to take any action or perform any duty hereunder with respect to the
Trust, the Delaware Trustee shall be entitled to all of the same rights as the
Property Trustee listed in Section 3.9(b) and Section 3.10.
SECTION 3.12 Execution of Documents.
Unless otherwise determined by the Regular Trustees, and except as
otherwise required by the Business Trust Act or applicable law, any Regular
Trustee is authorized to execute on behalf of the Trust any documents that the
Regular Trustees have the power and authority to execute pursuant to Section
3.6; provided that, the registration statements referred to in Section
3.6(b)(ii), including any amendments thereto, shall be signed by or on behalf of
a majority of the Regular Trustees.
SECTION 3.13 Not Responsible for Recitals or Issuance of Securities.
The recitals contained in this Declaration and the Securities shall
be taken as the statements of the Sponsor, and the Trustees do not assume any
responsibility for their correctness. The Trustees make no representations as to
the value or condition of the property of the Trust or any part thereof. The
Trustees make no representations as to the validity or sufficiency of this
Declaration, the Securities, the Debentures or the Indenture.
SECTION 3.14 Duration of Trust.
The Trust shall exist until terminated pursuant to the provisions of
Article 8 hereof.
SECTION 3.15 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 Person, except as described in Section
3.15(b) and (c) or Section 8.2.
(b) The Trust may, at the request of the Sponsor and with the
consent of the Regular Trustees or, if there are more than two, a majority of
the Regular Trustees and without the consent of the Holders of the Securities,
the Delaware Trustee or the Property Trustee,
26
consolidate, amalgamate, merge with or into, or be replaced by or convey,
transfer or lease its properties substantially as an entirety to a trust
organized as such under the laws of any State; provided, that:
(i) if the Trust is not the successor, such successor entity
(the "Successor Entity") either:
a. expressly assumes all of the obligations of the
Trust with respect to the Securities; or
b. substitutes for the Preferred Securities other
securities having substantially the same terms as
the Preferred Securities (the "Successor
Securities") so long as the Successor Securities
rank the same as the Preferred Securities rank in
priority with respect to Distributions and
payments upon liquidation, redemption and
otherwise;
(ii) the Issuer expressly appoints a trustee of such
Successor Entity that possesses the same powers and
duties as the Property Trustee as the holder of the
Debentures;
(iii) the Preferred Securities or any Successor Securities are
listed, or any Successor Securities will be listed upon
notification of issuance, on any national securities
exchange or with any other or organization on which the
Preferred Securities are then listed or quoted;
(iv) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not cause the
Preferred Securities (including any Successor
Securities) to be downgraded by any nationally
recognized statistical rating organization;
(v) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect
the rights, preferences and privileges of the Holders of
the Preferred Securities (including any Successor
Securities) in any material respect;
(vi) such Successor Entity has a purpose substantially
identical to that of the Trust;
(vii) prior to such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease the Sponsor
has received an opinion of independent counsel to the
Trust experienced in such matters to the effect that:
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a. such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does
not adversely affect the rights, preferences and
privileges of the Holders of the Preferred
Securities (including any Successor Securities) in
any material respect;
b. following such merger, consolidation,
amalgamation, replacement, conveyance, transfer or
lease neither the Trust nor the Successor Entity
will be required to register as an Investment
Company; and
c. following such merger, 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;
(viii) the Sponsor or any permitted successor or assignee owns
all of the common securities and guarantees the
obligations of such Successor Entity under the Successor
Securities at least to the extent provided by the
Securities Guarantee; and
(ix) such Successor Entity expressly assumes all of the
obligations of the Trust with respect to the Trustees.
(c) Notwithstanding Section 3.15(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 or
convey, transfer or lease its properties and assets substantially as an entirety
to, any other entity or permit any other entity to consolidate, amalgamate,
merge with or into, or replace it, if such consolidation, amalgamation, merger,
replacement, conveyance, transfer or lease would cause the Trust or Successor
Entity to be classified as other than a grantor trust for United States federal
income tax purposes and each Holder of the Securities not to be treated as
owning an undivided interest in the Debentures.
SECTION 3.16 Property Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other similar judicial proceeding relative to the Trust or any other obligor
upon the Securities or the property of the Trust or of such other obligor or
their creditors, the Property Trustee (irrespective of whether any Distributions
on the Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Property Trustee shall
have made any demand on the Trust for the payment of any past due Distributions)
shall be entitled and empowered, to the fullest extent permitted by law, by
intervention in such proceeding or otherwise:
28
(a) to file and prove a claim for the whole amount of any
Distributions owing and unpaid in respect of the Securities (or, if the
Securities are original issue discount Securities, such portion of the
liquidation amount as may be specified in the terms of such Securities) and to
file such other papers or documents as may be necessary or advisable in order to
have the claims of the Property Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee, its
and counsel) and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Property Trustee and, in the event the
Property Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Property Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee, its
agents and counsel, and any other amounts due the Property Trustee.
Nothing herein contained shall be deemed to authorize the Property
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement adjustment or compensation affecting the
Securities or the rights of any Holder thereof or to authorize the Property
Trustee to vote in respect of the claim of any Holder in any such proceeding.
ARTICLE 4
SPONSOR
SECTION 4.1 Responsibilities of the Sponsor.
In connection with the issue and sale of the Preferred Securities,
the Sponsor shall have the exclusive right and responsibility to engage in the
following activities:
(a) to prepare for filing by the Trust with the Commission under the
Securities Act or the Exchange Act one or more registration statements on the
applicable forms, including any amendments thereto, pertaining to the Preferred
Securities, the Guarantee and the Junior Subordinated Debt Securities;
(b) to determine the States in which to take appropriate action to
qualify or register for sale all or part of the Preferred 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;
29
(c) to prepare for filing by the Trust an application to the New
York Stock Exchange or any other national stock exchange or the NASDAQ Stock
Market for listing upon notice of issuance of any Preferred Securities, the
Guarantee and the Junior Subordinated Debt Securities; and
(d) to negotiate the terms of and to execute on behalf of the Trust
an underwriting agreement and other related agreements providing for the sale of
the Preferred Securities.
SECTION 4.2 Indemnification and Fees and Expenses of the Trustees.
The Sponsor, in its capacity as Issuer, agrees to indemnify the
Property Trustee and the Delaware Trustee for, and to hold each of them harmless
against, any loss, liability or expense incurred without negligence or bad faith
on the part of the Property Trustee or the Delaware Trustee, as the case may be,
arising out of or in connection with the acceptance or administration of the
trust or trusts hereunder, including the costs and expenses of defending either
of them against any claim or liability in connection with the exercise or
performance of any of their respective powers or duties hereunder; the
provisions of this Section 4.2 shall survive the resignation or removal of the
Delaware Trustee or the Property Trustee or the termination of this Declaration.
ARTICLE 5
TRUST COMMON SECURITIES HOLDER
SECTION 5.1 Issuer's Purchase of Common Securities.
On the applicable Closing Date, the Issuer will purchase all of the
Common Securities issued by the Trust on such Closing Date, for an amount at
least equal to 3% of the capital of the Trust at such time, at the same time as
Preferred Securities are sold; PROVIDED that, if the Option set forth in Section
7.13(a) is exercised, then the Issuer will purchase such additional Common
Securities from the Trust on such second Closing Date such that it will then
hold at least 3% of the capital of the Trust.
The aggregate stated liquidation amount of Common Securities
outstanding at any time shall not be less than 3% of the capital of the Trust.
SECTION 5.2 Covenants of the Common Securities Holder.
For so long as the Preferred Securities remain outstanding, the
Common Securities Holder will covenant (i) to maintain, directly or indirectly,
100% ownership of the Common Securities, (ii) to cause the Trust to remain a
statutory business trust and not to voluntarily dissolve, wind up, liquidate or
be terminated, except as permitted by this Declaration, (iii) to use its
commercially reasonable efforts to ensure that the Trust will not be an
investment company for purposes of the Investment Company Act, and (iv) to take
no action which would
30
be reasonably likely to cause the Trust to be classified as an association or a
publicly traded partnership taxable as a corporation for United States federal
income tax purposes.
ARTICLE 6
TRUSTEES
SECTION 6.1 Number of Trustees.
The number of Trustees initially shall be five, and:
(a) at any time before the issuance of any Securities, the Sponsor
may, by written instrument, increase or decrease the number of Trustees; and
(b) after the issuance of any Securities, the number of Trustees may
be increased or decreased by vote of the Holders of a Majority in Liquidation
Amount of the Common Securities voting as a class at a meeting of the Holders of
the Common Securities or by written consent in lieu of such meeting; provided
that the number of Trustees shall be at least three; and provided further that
(1) the Delaware Trustee, in the case of a natural person, shall be a person who
is a resident of the State of Delaware or that, if not a natural person, is an
entity which has its principal place of business in the State of Delaware and
otherwise meets the requirements of applicable law; (2) at least one Regular
Trustee is an employee or officer of, or is affiliated with, the Sponsor; and
(3) one Trustee shall be the Property Trustee for so long as this Declaration is
required to qualify as an indenture under the Trust Indenture Act, and such
Trustee may also serve as Delaware Trustee if it meets the applicable
requirements.
SECTION 6.2 Delaware Trustee; Eligibility.
If required by the Business Trust Act, one Trustee (which may be the
Property Trustee) (the "Delaware Trustee") shall be:
(a) a natural person who is a resident of the State of Delaware; or
(b) if not a natural person, an entity which has its principal place
of business in the State of Delaware, and otherwise meets the requirements of
applicable law,
provided that, if the Property Trustee has its principal place of business in
the State of Delaware and otherwise meets the requirements of applicable law,
then the Property Trustee shall also be the Delaware Trustee and Section 3.11
shall have no application.
SECTION 6.3 Property Trustee; Eligibility.
(a) There shall at all times be one Trustee (which may be the
Delaware Trustee) which shall act as Property Trustee which shall:
31
(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation organized and doing business under the
laws of the United States of America or any State or
Territory thereof or of the District of Columbia, or a
corporation or other Person permitted by the Commission
to act as an institutional trustee under the Trust
Indenture Act, authorized under such laws to exercise
corporate trust owners, having a combined capital and
surplus of at least 50 million U.S. dollars
($50,000,000), and subject to supervision or examination
by federal, State, Territorial or District of Columbia
authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the
requirements of the supervising or examining authority
referred to above, then for the purposes of this Section
6.3(a)(ii), the combined capital and surplus of such
corporation shall be deemed to be its combined capital
and surplus as set forth in its most recent report of
condition so published.
(b) If at any time the Property Trustee shall cease to be eligible
to so act under Section 6.3(a), the Property Trustee shall immediately resign in
the manner and with the effect set forth in Section 6.6(c).
(c) If the Property Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Property Trustee and the Holder of the Common Securities (as if it were the
obligor referred to in Section 310(b) of the Trust Indenture Act) shall in all
respects comply with the provisions of Section 310(b) of the Trust Indenture
Act.
(d) The Guarantee shall be deemed to be specifically described in
this Declaration for purposes of clause (i) of the first proviso contained in
Section 310(b) of the Trust Indenture Act.
SECTION 6.4 Qualifications of Regular Trustees and Delaware Trustee
Generally.
Each Regular Trustee and the Delaware Trustee (unless the Property
Trustee also acts as Delaware Trustee) shall be either a natural person who is
at least 21 years of age or a legal entity that shall act through one or more
Authorized Officers.
SECTION 6.5 Initial Regular Trustees.
The initial Regular Trustees shall be:
__________, ___________ and __________, the business address of all
of whom is c/o Bank United Corp., 3200 Southwest Freeway, Suite 2600, Houston,
Texas 77027.
32
SECTION 6.6 Appointment, Removal and Resignation of Trustees.
(a) Subject to Section 6.6(b), Trustees may be appointed or removed
without cause at any time:
(i) until the issuance of any Securities, by written
instrument executed by the Sponsor;
(ii) after the issuance of any Securities (but prior to the
occurrence of an Indenture Event of Default), by vote of
the Holders of a Majority in Liquidation Amount of the
Common Securities voting as a class at a meeting of the
Holders of the Common Securities; and
(iii) after the issuance of the Preferred Securities and the
occurrence of an Indenture Event of Default, by vote of
the Holders of a majority in Liquidation Amount of the
Preferred Securities.
(b) The Trustee that acts as Property Trustee shall not be removed
in accordance with Section 6.6(a) until a successor Trustee possessing the
qualifications to act as Property Trustee under Section 6.3(a) (a "Successor
Property Trustee") has been appointed and has accepted such appointment by
written instrument executed by such Successor Property Trustee and delivered to
the Regular Trustees and the Sponsor. The Trustee that acts as Delaware Trustee
shall not be removed in accordance with Section 6.6(a) until a successor Trustee
possessing the qualifications to act as Delaware Trustee under Sections 6.2 and
6.4 (a "Successor Delaware Trustee") has been appointed and has accepted such
appointment by written instrument executed by such Successor Delaware Trustee
and delivered to the Regular Trustees and the Sponsor.
(c) A Trustee appointed to office shall hold office until his or its
successor shall have been appointed, until his death or its dissolution or until
his or its removal or resignation. Any Trustee may resign from office (without
need for prior or subsequent accounting) by an instrument in writing signed by
the Trustee and delivered to the Sponsor and the Trust, which resignation shall
take effect upon such delivery or upon such later date as is specified therein;
provided, however, that:
(i) No such resignation of the Trustee that acts as the
Property Trustee shall be effective:
a. until a Successor Property Trustee has been
appointed and has accepted such appointment by
instrument executed by such Successor Property
Trustee and delivered to the Trust, the Sponsor
and the resigning Property Trustee; or
33
b. until the assets of the Trust have been completely
liquidated and the proceeds thereof distributed to
the holders of the Securities; and
(ii) no such resignation of the Trustee that acts as the
Delaware Trustee shall be effective until a Successor
Delaware Trustee has been appointed and has accepted
such appointment by instrument executed by such
Successor Delaware Trustee and delivered to the Trust,
the Sponsor and the resigning Delaware Trustee.
(d) The Holders of the Common Securities shall use their best
efforts to promptly appoint a Successor Delaware Trustee or Successor Property
Trustee, as the case may be, if the Property Trustee or the Delaware Trustee
delivers an instrument of resignation in accordance with this Section 6.6.
(e) If no Successor Property Trustee or Successor Delaware Trustee,
as the case may be, shall have been appointed and accepted appointment as
provided in this Section 6.6 within 60 days after delivery to the Sponsor and
the Trust of an instrument of resignation or removal, the resigning or removed
Property Trustee or Delaware Trustee, as applicable, may petition any court of
competent jurisdiction for appointment of a Successor Property Trustee or
Successor Delaware Trustee, as applicable. Such court may thereupon, after
prescribing such notice, if any, as it may deem proper, appoint a Successor
Property Trustee or Successor Delaware Trustee, as the case may be.
(f) No Property Trustee or Delaware Trustee shall be liable for the
acts or omissions to act of any Successor Property Trustee or Successor Delaware
Trustee, as the case may be.
SECTION 6.7 Vacancies among Trustees.
If a Trustee ceases to hold office for any reason and the number of
Trustees is not reduced pursuant to Section 6.1, or if the number of Trustees is
increased pursuant to Section 6.1, a vacancy shall occur. A resolution
certifying the existence of such vacancy by the Regular Trustees or, if there
are more than two, a majority of the Regular Trustees shall be conclusive
evidence of the existence of such vacancy. The vacancy shall be filled with a
Trustee appointed in accordance with Section 6.6.
SECTION 6.8 Effect of Vacancies.
The death, resignation, retirement, removal, bankruptcy,
dissolution, liquidation, incompetence or incapacity to perform the duties of a
Trustee shall not operate to annul, dissolve or terminate the Trust. Whenever a
vacancy in the number of Regular Trustees shall occur, until such vacancy is
filled by the appointment of a Regular Trustee in accordance with Section 6.6,
the Regular Trustees in office, regardless of their number, shall have all the
powers granted to the Regular Trustees and shall discharge all the duties
imposed upon the Regular Trustees by this Declaration.
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SECTION 6.9 Meetings.
If there is more than one Regular Trustee, meetings of the Regular
Trustees shall be held from time to time upon the call of any Regular Trustee.
Regular meetings of the Regular Trustees may be held at a time and place fixed
by resolution of the Regular Trustees. Notice of any in-person meetings of the
Regular Trustees 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 Regular
Trustees shall be hand delivered or otherwise delivered in writing (including by
facsimile, with a hard copy by overnight courier) not less than 24 hours before
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 a Regular Trustee at a meeting shall constitute a waiver of notice
of such meeting except where a Regular Trustee attends a meeting for the express
purpose of objecting to the transaction of any activity on the ground that the
meeting has not been lawfully called or convened. Unless provided otherwise in
this Declaration, any action of the Regular Trustees may be taken at a meeting
by vote of a majority of the Regular Trustees present (whether in person or by
telephone) and eligible to vote with respect to such matter, provided that a
Quorum is present, or without a meeting by the unanimous written consent of the
Regular Trustees. In the event there is only one Regular Trustee, any and all
action of such Regular Trustee shall be evidenced by a written consent of such
Regular Trustee.
SECTION 6.10 Delegation of Power.
(a) Any Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any natural person over the age of 21 his, her or
its power for the purpose of executing any documents contemplated in Section
3.6, including any registration statement or amendment thereto filed with the
Commission, or making any other governmental filing.
(b) The Regular Trustees shall have power to delegate from time to
time to such of their number or to officers of the Trust the doing of such
things and the execution of such instruments either in the name of the Trust or
the names of the Regular Trustees or otherwise as the Regular Trustees may deem
expedient, to the extent such delegation is not prohibited by applicable law or
contrary to the provisions of the Trust, as set forth herein.
SECTION 6.11 Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Property Trustee, the Delaware
Trustee or any Regular Trustee that is not a natural person may be merged or
converted or with such Trustee may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Trustee shall be a
party, or any corporation succeeding to all or substantially all the corporate
trust business of such Trustee shall be the successor of such Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto.
35
ARTICLE 7
TERMS OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities.
(a) The Regular Trustees shall on behalf of the Trust issue one
class of preferred securities representing undivided beneficial ownership
interests in the assets of the Trust and one class of common securities
representing undivided beneficial ownership interests in the assets of the
Trust.
(i) Preferred Securities. The Preferred Securities of the
Trust have an aggregate liquidation amount with respect
to the assets of the Trust of
__________________________________ dollars
($__________________________) with respect to the
initial closing of the sale of Preferred Securities and,
if the Option set forth in Section 7.13(a) is exercised,
an additional aggregate liquidation amount with respect
to the assets of the Trust of __________ dollars
($__________) with respect to the second closing of the
sale of Preferred Securities; PROVIDED that the maximum
aggregate liquidation amount of Preferred Securities of
the Trust shall not exceed ____________ dollars
($_________). The Preferred Securities are hereby
designated for identification purposes only as "_____%
Preferred Securities" (the "Preferred Securities"). The
Preferred Security Certificates evidencing the Preferred
Securities shall be substantially in the form of Exhibit
A to this Declaration, with such changes and additions
thereto or deletions therefrom as may be required by
ordinary usage, custom or practice or to conform to the
rules of any stock exchange on which the Preferred
Securities are listed or quoted subject to Section
7.13(b).
(ii) Common Securities. The Common Securities of the Trust
have an aggregate liquidation amount with respect to the
assets of the Trust of
_____________________________________ dollars
($_________________________) with respect to the initial
closing of the sale of Common Securities and, if the
Option set forth in Section 7.13(a) is exercised, an
additional aggregate liquidation amount with respect to
the assets of the Trust of __________ dollars
($__________) with respect to the second closing of the
sale of Common Securities; PROVIDED that the maximum
aggregate liquidation amount of common securities issued
by the Trust shall not exceed __________ dollars
($___________). The Common Securities are hereby
designated for identification purposes only as "____%
Common Securities" (the "Common Securities" and,
together with the Preferred Securities,
36
the "Securities"). The Common Security Certificates
evidencing the Common Securities shall be substantially
in the form of Exhibit B to this Declaration, with such
changes and additions thereto or deletions therefrom as
may be required by ordinary usage, custom or practice
subject to section 7.13(b).
(b) Payment of Distributions on, and payment of the Redemption Price
upon a redemption of, the Preferred Securities and the Common Securities, as
applicable, shall be made Pro Rata based on the liquidation amount of such
Preferred Securities and Common Securities; provided, however, that if on any
date on which amounts payable on distribution or redemption, an Indenture Event
of Default shall have occurred and be continuing, no payment of any Distribution
on, or Redemption Price of, any of the Common Securities, and no other payment
on account of the redemption, liquidation or other acquisition of such Common
Securities, shall be made unless payment in full in cash of all accumulated and
unpaid Distributions on all of the outstanding Preferred Securities for all
Distribution periods terminating on or prior thereto, or, in the case of amounts
payable on redemption, the full amount of the Redemption Price for all of the
outstanding Preferred Securities then called for redemption, shall have been
made or provided for, and all funds available to the Property Trustee shall
first be applied to the payment in full in cash of all Distributions on, or the
Redemption Price of, the Preferred Securities then due and payable. The Trust
shall issue no securities or other interests in the assets of the Trust other
than the Preferred Securities and the Common Securities.
(c) The Certificates shall be signed on behalf of the Trust by a
Regular Trustee. Such signature shall be the manual or facsimile signature of
any present or any future Regular Trustee. In case a Regular Trustee of the
Trust who shall have signed any of the Certificates shall cease to be such
Regular Trustee 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 Regular Trustee; and any
Certificate may be signed on behalf of the Trust by such persons who, at the
actual date of execution of such Certificate, shall be the Regular Trustees of
the Trust, although at the date of the execution and delivery of the Declaration
any such person was not such a Regular Trustee. Certificates shall be printed,
lithographed or engraved or may be produced in any other manner as is reasonably
acceptable to the Regular Trustees, as evidenced by their execution thereof, and
may have such letters, numbers or other marks of identification or designation
and such legends or endorsements as the Regular Trustees may deem appropriate,
or as may be required to comply with any law or with any rule or regulation of
any stock exchange on which Securities may be listed, or to conform to usage.
A Certificate representing Preferred Securities shall not be valid
until authenticated by the manual signature of an authorized officer of the
Property Trustee. Such signature shall be conclusive evidence that such
Certificate has been authenticated under this Declaration.
Upon a written order of the Trust signed by one Regular Trustee, the
Property Trustee shall authenticate the Certificates representing Preferred
Securities for original issue.
37
The aggregate number of Preferred Securities outstanding at any time shall not
exceed the liquidation amount set forth in Section 7.1(a)(i).
The Property Trustee may appoint an authenticating agent acceptable
to the Trust to authenticate Certificates. An authenticating agent may
authenticate Certificates whenever the Property Trustee may do so. Each
reference in this Declaration to authentication by the Property Trustee includes
authentication by such agent. An authenticating agent has the same rights as the
Property Trustee to deal with the Sponsor or an Affiliate of the Sponsor.
(d) 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.
(e) Upon issuance of the Securities as provided in this Declaration,
the Securities so issued shall be deemed to be validly issued, fully paid and
non-assessable undivided beneficial ownership interests in the assets of the
Trust.
(f) Every Person, by virtue of having become a Holder or a Preferred
Security Beneficial Owner in accordance with the terms of this Declaration,
shall be deemed to have expressly assented and agreed to the terms of, and shall
be bound by, this Declaration and the terms of the Securities, the Guarantee,
the Indenture and the Junior Subordinated Debt Securities.
(g) The holders of the Securities shall have no preemptive or
similar rights.
SECTION 7.2 Distributions.
(a) Holders of Securities shall be entitled to receive cumulative
cash Distributions at the rate per annum of % of the stated liquidation amount
of $__ per Security. The amount of Distributions payable for any period shall be
computed on the basis of a 360-day year of twelve 30-day months. The amount of
distributions payable for any period shorter than a full quarterly distribution
period shall be computed on the basis of a 30-day month and for periods of less
than a month, the actual number of days elapsed per 30-day month. Subject to
Section 7.1(b), Distributions shall be made on the Preferred Securities and the
Common Securities on a Pro Rata basis. Distributions on the Securities shall,
from the date of original issue, accrue and be cumulative and shall be payable
[quarterly][semi-annually], in arrears, on each __________ [, __________,
_________] and _________, commencing _________ __, ____, when, as and if
available for payment, by the Property Trustee, except as otherwise described
below. Distributions are payable only to the extent that payments are made in
respect of the Debentures held by the Property Trustee and to the extent that
the Trust has funds available for the payment of such Distributions in the
Property Account.
(b) Distributions not paid on the scheduled payment date will
accumulate and compound [quarterly][semi-annually] at the rate of % per annum
("Compounded Distributions"). "Distributions" shall mean ordinary cumulative
distributions together with any Compounded Distributions.
38
(c) If and to the extent that the Issuer makes a payment of
interest, premium and/or principal on the Junior Subordinated Debt Securities
held by the Property Trustee (the amount of any such payment being a "Payment
Amount"), the Property Trustee shall and is directed, to the extent funds are
available for that purpose, to make a Pro Rata distribution of the Payment
Amount to Holders, subject to Section 7.1(b).
(d) Distributions on the Securities shall be payable to the Holders
thereof as they appear on the register of the Trust as of the close of business
on the relevant record dates. While the Preferred Securities are represented by
one or more Global Securities, the relevant record dates shall be the close of
business on the Business Day next preceding such Distribution payment date,
unless a different regular record date is established or provided for the
corresponding interest payment date on the Junior Subordinated Debt Securities.
The relevant record dates for the Common Securities shall be the same as for the
Preferred Securities. If the Preferred Securities shall not continue to remain
represented by one or more Global Securities, the relevant record dates for the
Preferred Securities shall be selected by the Regular Trustees and shall be at
least one Business Day prior to the relevant payment dates. At all times, the
Distribution payment dates shall correspond to the interest payment dates on the
Junior Subordinated Debt Securities. Distributions payable on any Securities
that are not punctually paid on any Distribution payment date, as a result of
the Issuer having failed to make a payment under the Junior Subordinated Debt
Securities, shall 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 this Declaration. 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, with the same
force and effect as if made on such payment date.
(e) 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 among the Holders of the Securities.
SECTION 7.3 Redemption of Securities.
(a) Upon the repayment or redemption, in whole or in part, of the
Debentures held by the Trust, whether at the stated maturity of the Junior
Subordinated Debt Securities or upon earlier redemption as provided in the
Indenture, the proceeds from such repayment or redemption shall be
simultaneously applied Pro Rata (subject to Section 7.1(b)) to redeem Securities
having an aggregate liquidation amount equal to the aggregate principal amount
of the Junior Subordinated Debt Securities so repaid or redeemed at the
Redemption Price. Holders shall be given not less than 30 nor more than 60 days
notice of such redemption in accordance with Section 7.4.
(b) On the date fixed for any distribution of Junior Subordinated
Debt Securities, upon dissolution of the Trust, (i) the Securities will no
longer be deemed to be outstanding and (ii) certificates representing Securities
will be deemed to represent the Junior Subordinated Debt Securities having an
aggregate principal
39
amount equal to the stated liquidation amount of, and bearing accrued and unpaid
interest equal to accrued and unpaid distributions on, such Securities until
such certificates are presented to the Sponsor or its agent for transfer or
reissuance.
SECTION 7.4 Redemption Procedures.
(a) Notice of any redemption of, or notice of distribution of
Debentures in exchange for, the Securities (a "Redemption/Distribution Notice"),
which notice shall be irrevocable, 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 Section 7.4(a), a
Redemption/Distribution Notice shall be deemed to be given on the day such
notice is first mailed by first-class mail, postage prepaid, to Holders of
Securities. Each Redemption/Distribution Notice shall be addressed to the
Holders of Securities at the address of each such Holder appearing in the
register of the Trust. No defect in the Redemption/Distribution Notice or in the
mailing of either thereof with respect to any Holder shall affect the validity
of the redemption or exchange proceedings with respect to any other Holder.
(b) If fewer than all the outstanding Securities are to be so
redeemed, the Common Securities and the Preferred Securities will be redeemed
Pro Rata (subject to Section 7.1(b)) and the Preferred Securities to be redeemed
will be redeemed as described in Section 7.4(c) below. The Trust may not redeem
the Securities in part unless all accumulated and unpaid Distributions to the
date of redemption have been paid in full on all Securities then outstanding.
For all purposes of this Declaration, unless the context otherwise requires, all
provisions relating to the redemption of Preferred Securities shall relate, in
the case of any Preferred Security redeemed or to be redeemed only in part, to
the portion of the aggregate liquidation amount of Preferred Securities which
has been or is to be redeemed.
(c) Subject to the Trust's fulfillment of the notice requirements
set forth in Section 7.4(a) above, if Securities are to be redeemed, then (i)
with respect to Preferred Securities represented by one or more Global
Securities, by 12:00 noon, New York City time, on the redemption date (provided
that the Issuer has paid the Property Trustee a sufficient amount of cash in
connection with the related redemption or maturity of the Debentures), the
Property Trustee will deposit irrevocably with the Depositary or its nominee (or
successor Clearing Agency or its nominee) funds sufficient to pay the applicable
Redemption Price with respect to the Preferred Securities and will give the
Depositary irrevocable instructions and authority to pay the Redemption Price to
the Holders of the Preferred Securities and (ii) with respect to Securities not
represented by one or more Global Securities (provided that the Issuer has paid
the Property Trustee a sufficient amount of cash in connection with the related
redemption or maturity of the Junior Subordinated Debt Securities), the Paying
Agent will pay the relevant Redemption Price to the Holders of such Securities
by check mailed to the address of the relevant Holder appearing on the register
of the Trust on the redemption date. If any date fixed for redemption of
Securities is not a Business Day, then payment of the Redemption Price payable
on such date will be made on the next succeeding day that is a Business Day (and
without any interest or other payment in respect of
40
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 in respect of any Securities is
improperly withheld or refused and not paid either by the Property Trustee or by
the Sponsor as guarantor pursuant to the Guarantee, Distributions on such
Securities will continue to accrue at the then applicable 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. For these purposes, the applicable Redemption
Price shall not include Distributions which are being paid to Holders who were
Holders on a relevant record date. If a Redemption/Distribution Notice shall
have been given and funds deposited or paid as required, then immediately prior
to the close of business on the date of such deposit or payment, Distributions
will cease to accrue on the Securities called for redemption and all rights of
Holders of such Securities so called for redemption will cease, except the right
of the Holders to receive the Redemption Price, but without interest on such
Redemption Price, and from and after the date fixed for redemption, such
Securities will cease to be outstanding.
Neither the Regular Trustees nor the Trust shall be required to
register or cause to be registered the transfer of any Securities that have been
called for redemption, except in the case of any Securities being redeemed in
part, any portion thereof not to be redeemed.
(d) Subject to the foregoing and applicable law (including, without
limitation, United States federal securities laws), the Issuer or its
subsidiaries may at any time and from time to time purchase outstanding
Preferred Securities by tender, in the open market or by private agreement.
SECTION 7.5 Voting Rights of Preferred Securities.
(a) Except as provided under Section 11.1 and this Article 7 and as
otherwise required by the Business Trust Act, the Trust Indenture Act and other
applicable law, the Holders of the Preferred Securities shall have no voting
rights.
(b) Subject to the requirement of the Property Trustee obtaining a
tax opinion in certain circumstances set forth in Section 7.5(d) below, the
Holders of a Majority in Liquidation Amount of the Preferred 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 Property Trustee, or
to direct the exercise of any trust or power conferred upon the Property Trustee
under the Declaration, including the right to direct the Property Trustee, as
Holder of the Junior Subordinated Debt Securities, to (i) exercise the remedies
available to it under the Indenture as a Holder of the Junior Subordinated Debt
Securities; (ii) consent to any amendment or modification of the Indenture or
the Junior Subordinated Debt Securities where such consent shall be required or
(iii) waive any past default and its consequences that is waivable under Section
513 of the Indenture; provided, however, that if an Indenture Event of Default
has occurred and is continuing, then the Holders of 25% of the aggregate
liquidation amount of the Preferred Securities may direct the Property Trustee
to declare the principal of and interest on the Junior Subordinated Debt
Securities due and payable; provided, further, that where a consent or action
under the Indenture would require the consent or act of the Holders of more than
a majority of
41
the aggregate principal amount of Junior Subordinated Debt Securities affected
thereby, only the Holders of the percentage of the aggregate stated liquidation
amount of the Preferred Securities which is at least equal to the percentage
required under the Indenture may direct the Property Trustee to give such
consent to take such action.
(c) If the Property Trustee fails to enforce its rights under the
Debentures after a Holder of Preferred Securities has made a written request,
such Holder of Preferred Securities may, to the extent permitted by applicable
law, institute a legal proceeding directly against the Issuer to enforce the
Property Trustee's rights under the Indenture without first instituting any
legal proceeding against the Property Trustee or any other Person. In addition,
if a Trust Enforcement Event has occurred and is continuing and such event is
attributable to the failure of the Issuer to make any interest, principal or
other required payments when due under the Indenture, then a Holder of Preferred
Securities may directly institute a Direct Action against the Issuer on or after
the respective due date specified in the Junior Subordinated Debt Securities.
(d) The Property Trustee shall notify all Holders of the Preferred
Securities of any notice of any Indenture Event of Default received from the
Issuer with respect to the Debentures. Such notice shall state that such
Indenture Event of Default also constitutes a Trust Enforcement Event. Except
with respect to directing the time, method, and place of conducting a proceeding
for a remedy, the Property Trustee shall be under no obligation to take any of
the actions described in clause 7.5(b)(i) and (ii) above unless the Property
Trustee has obtained an opinion of independent tax counsel to the effect that
the Trust will not fail to be classified as a grantor trust for United States
federal income tax purposes as a result of such action, and each Holder will be
treated as owning an undivided beneficial ownership interest in the Junior
Subordinated Debt Securities.
(e) In the event the consent of the Property Trustee, as the Holder
of the Junior Subordinated Debt Securities, is required under the Indenture with
respect to any amendment or modification of the Indenture, the Property Trustee
shall request the direction of the Holders of the Securities with respect to
such amendment or modification and shall vote with respect to such amendment or
modification as directed by not less than 66-2/3% of the aggregate 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 the
Holders of more than a 66-2/3%of the aggregate principal amount of the Junior
Subordinated Debt Securities, the Property Trustee may only give such consent at
the direction of the Holders of at least the same proportion in aggregate stated
liquidation amount of the Securities. The Property Trustee shall not take any
such action in accordance with the directions of the Holders of the Securities
unless the Property Trustee has obtained an opinion of independent tax counsel
to the effect that the Trust will not be classified as other than a grantor
trust for United States federal income tax purposes as a result of such action,
and each Holder will be treated as owning an undivided beneficial ownership
interest in the Junior Subordinated Debt Securities.
(f) A waiver of an Indenture Event of Default with respect to the
Junior Subordinated Debt Securities will constitute a waiver of the
corresponding Trust Enforcement Event.
(g) Any required approval or direction of Holders of Preferred
Securities may be given at a separate meeting of Holders of Preferred Securities
convened for such purpose, at a meeting of all of the Holders of Securities or
pursuant to written consent. The Regular Trustees
42
will cause a notice of any meeting at which Holders of Preferred Securities are
entitled to vote to be mailed to each Holder of record of Preferred Securities.
Each such notice will include a statement setting forth (i) the date of such
meeting, (ii) a description of any resolution proposed for adoption at such
meeting on which such Holders are entitled to vote and (iii) instructions for
the delivery of proxies.
(h) No vote or consent of the Holders of Preferred Securities shall
be required for the Trust to redeem and cancel Preferred Securities or
distribute Junior Subordinated Debt Securities in accordance with this
Declaration and the terms of the Securities.
(i) Notwithstanding that Holders of Preferred Securities are
entitled to vote or consent under any of the circumstances described above, any
of the Securities that are owned at such time by the Issuer, any Regular Trustee
or any entity directly or indirectly controlled by, or under direct or indirect
common control with, the Issuer or any Regular Trustee, shall not be entitled to
vote or consent and shall, for purposes of such vote or consent, be treated as
if such Securities were not outstanding; PROVIDED, HOWEVER, that persons
otherwise eligible to vote to whom the Issuer or any of its subsidiaries have
pledged Preferred Securities may vote or consent with respect to such pledged
Preferred Securities under any of the circumstances described herein.
(j) Subject to Sections 6.6(a) and 7.5(k), Holders of the Preferred
Securities shall have no rights to appoint or remove the Trustees, who may be
appointed, removed or replaced solely by the Common Securities Holder.
(k) If an Indenture Event of Default has occurred and is continuing,
the Trustees may be removed at such time only by a Majority in Liquidation
Amount of the Preferred Securities.
SECTION 7.6 Voting Rights of Common Securities.
(a) Except as provided under Section 6.1(b), this Section 7.6 or
Section 11.1 or as otherwise required by the Business Trust Act, the Trust
Indenture Act or other applicable law or provided by the Declaration, the
Holders of the Common Securities will have no voting rights.
(b) Subject to Sections 6.6(a) and 7.5(k), the Holders of the Common
Securities shall be entitled, in accordance with Article VI of this Declaration,
to vote to appoint, remove or replace any Trustee or to increase or decrease the
number of Trustees.
(c) Subject to Section 2.6 and only after all Trust Enforcement
Events with respect to the Preferred Securities have been cured, waived, or
otherwise eliminated and subject to the requirement of the Property Trustee
obtaining a tax opinion in certain circumstances set forth in this paragraph
(c), the Holders of a Majority in Liquidation Amount of the Common Securities
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Property Trustee, or direct the exercise of any
trust or power
43
conferred upon the Property Trustee under this Declaration, including the right
to direct the Property Trustee, as Holder of the Junior Subordinated Debt
Securities, to (i) exercise the remedies available to it under the Indenture as
a Holder of the Junior Subordinated Debt Securities, (ii) consent to any
amendment or modification of the Indenture or the Junior Subordinated Debt
Securities where such consent shall be required or (iii) waive any past default
and its consequences that is waivable under Section 513 of the Indenture;
provided, however, that where a consent or action under the Indenture would
require the consent or act of the Holders of more than a majority of the
aggregate principal amount of Junior Subordinated Debt Securities affected
thereby, only the Holders of the percentage of the aggregate stated liquidation
amount of the Common Securities which is at least equal to the percentage
required under the Indenture may direct the Property Trustee to have such
consent or take such action. Except with respect to directing the time, method,
and place of conducting a proceeding for a remedy, the Property Trustee shall be
under no obligation to take any of the actions described in clause 7.6(c)(i) and
(ii) above unless the Property Trustee has obtained an opinion of independent
tax counsel to the effect that, as a result of such action, for United States
federal income tax purposes the Trust will not fail to be classified as a
grantor trust and each Holder will be treated as owning an undivided beneficial
ownership interest in the Junior Subordinated Debt Securities.
(d) If the Property Trustee fails to enforce its rights under the
Junior Subordinated Debt Securities after a Holder of Common Securities has made
a written request, such Holder of Common Securities may, to the extent permitted
by applicable law, directly institute a legal proceeding directly against the
Issuer to enforce the Property Trustee's rights under the Junior Subordinated
Debt Securities without first instituting any legal proceeding against the
Property Trustee or any other Person.
(e) A waiver of an Indenture Event of Default with respect to the
Junior Subordinated Debt Securities will constitute a waiver of the
corresponding Trust Enforcement Event.
(f) Any required approval or direction of Holders of Common
Securities may be given at a separate meeting of Holders of Common Securities
convened for such purpose, at a meeting of all of the Holders of Securities or
pursuant to written consent. The Regular Trustees will cause a notice of any
meeting at which Holders of Common Securities are entitled to vote to be mailed
to each Holder of record of Common Securities. Each such notice will include a
statement setting forth (i) the date of such meeting, (ii) a description of any
resolution proposed for adoption at such meeting on which such Holders are
entitled to vote and (iii) instructions for the delivery of proxies.
(g) 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 Junior Subordinated Debt Securities in accordance with the
Declaration and the terms of the Securities.
SECTION 7.7 Paying Agent.
In the event that any Preferred Securities are not in book-entry
only form, the Trust shall maintain in the Borough of Manhattan, City of New
York, State of New York, an office or agency where the Preferred Securities may
be presented for payment ("Paying Agent"). The Trust may appoint the paying
agent and may appoint one or more additional paying agents in such other
locations as it shall determine. The term "Paying Agent" includes any additional
44
paying agent. The Trust may change any Paying Agent without prior notice to the
Holders. The Trust shall notify the Property Trustee of the name and address of
any Paying Agent not a party to this Declaration. If the Trust fails to appoint
or maintain another entity as Paying Agent, the Property Trustee shall act as
such. The Trust or any of its Affiliates may act as Paying Agent. The Property
Trustee shall initially act as Paying Agent for the Securities. In the event the
Property Trustee shall no longer be the Paying Agent, the Regular Trustees shall
appoint a successor (which shall be a bank or trust company acceptable to the
Issuer) to act as Paying Agent. The Paying Agent shall be permitted to resign as
Paying Agent upon 30 days' written notice to the Property Trustee and the
Issuer.
SECTION 7.8 Listing
The Sponsor shall use its best efforts to cause the Preferred
Securities to be listed for quotation on the New York Stock Exchange.
SECTION 7.9 Transfer of Securities.
(a) Securities may only be transferred, in whole or in part, in
accordance with the terms and conditions set forth in this Declaration and in
the terms of the Securities. To the fullest extent permitted by law, any
transfer or purported transfer of any Security not made in accordance with this
Declaration shall be null and void.
(b) (i) Subject to this Article 7, Preferred Securities shall be
freely transferable.
(ii) The Holder of the Common Securities may not transfer the
Common Securities except (A) in compliance with a
consolidation, merger, sale, conveyance or lease of the
Sponsor in compliance with Article VIII of the Indenture
or (B) to the Sponsor or an Affiliate thereof in
compliance with applicable law, including the Securities
Act and applicable state securities and blue sky laws.
To the fullest extent permitted by law, any attempted
transfer of the Common Securities other than as set
forth in the immediately preceding sentence shall be
null and void.
(c) The Trust shall cause to be kept at the Corporate Trust Office
of the Property Trustee a register (the register maintained in such office being
herein sometimes referred to as the "Security Register") in which, subject to
such reasonable regulations as it may prescribe, the Trust shall provide for the
registration of Preferred Securities and of transfers of Preferred Securities.
The Property Trustee is hereby appointed "Security Registrar" for the purpose of
registering Preferred Securities and transfers of Preferred Securities as herein
provided.
(d) Upon surrender for registration of transfer of any Security at
an office or agency of the Trust designated for such purpose, the Trust shall
execute, and the Property Trustee
45
shall authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Securities of any authorized denominations and of a
like aggregate principal amount.
(e) At the option of the Holder, Securities may be exchanged for
other Securities of any authorized denominations and of a like aggregate
principal amount, upon surrender of the Securities to be exchanged at such
office or agency. Whenever any Securities are so surrendered for exchange, the
Trust shall execute, and in the case of Preferred Securities the Property
Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.
(f) Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Trust or the Property
Trustee) be duly endorsed, or be accompanied by a written instrument of transfer
in form satisfactory to the Trust and the Security Registrar duly executed, by
the Holder thereof or his attorney duly authorized in writing.
(g) No service charge shall be made for any registration of transfer
or exchange of Securities, but the Trust may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities.
(h) If the Securities are to be redeemed in part, the Trust shall
not be required (A) 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 the mailing of a notice of redemption of any such Securities selected
for redemption under Section 7.4 and ending at the close of business on the day
of such mailing, or (B) 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 7.10 Mutilated, Destroyed, Lost or Stolen Certificates.
If:
(a) any mutilated Certificates should be surrendered to the Regular
Trustees, or if the Regular Trustees shall receive evidence to their
satisfaction of the destruction, loss or theft of any Certificate; and
(b) there shall be delivered to the Regular Trustees such security
or indemnity as may be required by them to keep each of the Trustees, the
Sponsor and the Trust harmless,
then, in the absence of notice that such Certificate shall have been acquired by
a bona fide purchaser, any Regular Trustee on behalf of the Trust shall execute
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 7.10, the Regular
Trustees 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
46
the relevant Securities, as if originally issued, whether or not the lost,
stolen or destroyed Certificate shall be found at any time.
SECTION 7.11 Deemed Security Holders.
The Trustees may treat the Person in whose name any Certificate
shall be registered on the register 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 shall have
actual or other notice thereof.
SECTION 7.12 Global Securities.
The Preferred Securities may be issued in the form of one or more
Global Securities. If the Preferred Securities are to be issued in the form of
one or more Global Securities, then a Regular Trustee on behalf of the Trust
shall execute and the Property Trustee shall authenticate and deliver one or
more Global Securities that (i) shall represent and shall be denominated in an
amount equal to the aggregate liquidation amount of all of the Preferred
Securities to be issued in the form of Global Securities and not yet cancelled,
(ii) shall be registered in the name of the Depositary for such Global Security
or the nominee of such Depositary, and (iii) shall be delivered by the Property
Trustee to such Depositary or pursuant to such Depositary's instructions. Global
Securities shall bear a legend substantially to the following effect:
"This Preferred Security is a Global Security within the
meaning of the Declaration hereinafter referred to and is registered in
the name of The Depository Trust Company, a New York corporation (the
"Depositary"), or a nominee of the Depositary. This Preferred Security is
exchangeable for Preferred Securities registered in the name of a person
other than the Depositary or its nominee only in the limited circumstances
described in the Declaration and no transfer of this Preferred Security
(other than a transfer of this Preferred Security as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary) may be
registered except in limited circumstances.
Unless this Preferred Security Certificate is presented by an
authorized representative of the Depositary to Bank United Capital I __ or
its agent for registration of transfer, exchange or payment, and any
Preferred Security Certificate issued is registered in the name of Cede &
Co. or such other name as requested by an authorized representative of the
Depositary (and any payment hereon is made to Cede & Co. or to such other
entity as is requested by an authorized representative of the Depositary),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede &
Co., has an interest herein."
47
Preferred Securities not represented by a Global Security issued in
exchange for all or a part of a Global Security pursuant to this Section 7.11
shall be registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Property Trustee. Upon execution and
authentication, the Property Trustee shall deliver such Preferred Securities not
represented by a Global Security to the Persons in whose names such definitive
Preferred Securities are so registered.
At such time as all interests in Global Securities have been
redeemed, repurchased or cancelled, such Global Securities shall be, upon
receipt thereof, cancelled by the Property Trustee in accordance with standing
procedures of the Depositary. At any time prior to such cancellation, if any
interest in Global Securities is exchanged for Preferred Securities not
represented by a Global Security, redeemed, cancelled or transferred to a
transferee who receives Preferred Securities not represented by a Global
Security therefor or any Preferred Security not represented by a Global Security
is exchanged or transferred for part of Global Securities, the principal amount
of such Global Securities shall, in accordance with the standing procedures of
the Depositary, be reduced or increased, as the case may be, and an endorsement
shall be made on such Global Securities by the Property Trustee to reflect such
reduction or increase.
The Trust and the Property Trustee may for all purposes, including
the making of payments due on the Preferred Securities, deal with the Depositary
as the authorized representative of the Holders for the purposes of exercising
the rights of Holders hereunder. The rights of the owner of any beneficial
interest in a Global Security shall be limited to those established by law and
agreements between such owners and depository participants provided, that no
such agreement shall give any rights to any Person against the Trust or the
Property Trustee without the written consent of the parties so affected.
Multiple requests and directions from and votes of the Depositary as holder of
Preferred Securities in global form with respect to any particular matter shall
not be deemed inconsistent to the extent they do not represent an amount of
Preferred Securities in excess of those held in the name of the Depositary or
its nominee.
If at any time the Depositary for any Preferred Securities
represented by one or more Global Securities notifies the Trust that it is
unwilling or unable to continue as Depositary for such Preferred Securities or
if at any time the Depositary for such Preferred Securities shall no longer be
eligible under this Section 7.11, the Trust shall appoint a successor Depositary
with respect to such Preferred Securities. If a successor Depositary for such
Preferred Securities is not appointed by the Trust within 90 days after the
Trust receives such notice or becomes aware of such ineligibility, the Trust's
election that such Preferred Securities be represented by one or more Global
Securities shall no longer be effective and the Trust shall execute, and the
Property Trustee will authenticate and deliver, Preferred Securities in
definitive registered form, in any authorized denominations, in an aggregate
liquidation amount equal to the principal amount of the Global Security or
Preferred Securities representing such Preferred Securities in exchange for such
Global Security or Preferred Securities.
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The Trust may at any time and in its sole discretion determine that
the Preferred Securities issued in the form of one or more Global Securities
shall no longer be represented by a Global Security or Preferred Securities. In
such event the Trust shall execute, and the Property Trustee, shall authenticate
and deliver, Preferred Securities in definitive registered form, in any
authorized denominations, in an aggregate liquidation amount equal to the
principal amount of the Global Security or Preferred Securities representing
such Preferred Securities, in exchange for such Global Security or Preferred
Securities.
Notwithstanding any other provisions of this Declaration (other than
the provisions set forth in Section 7.9), Global Securities may not be
transferred as a whole except by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary or
a nominee of such successor Depositary.
Interests of beneficial owners in a Global Security may be
transferred or exchanged for Preferred Securities not represented by a Global
Security and Preferred Securities not represented by a Global Security may be
transferred or exchange for Global Securities in accordance with rules of the
Depositary and the provisions of Section 7.9.
SECTION 7.13 Over-Allotment Option.
(a) The Regular Trustees, on behalf of the Trust, and the Sponsor may
grant to the underwriters or initial purchasers who are underwriting or
purchasing, as the case may be, any series of Preferred Securities, an option
(the "Option") to purchase an additional liquidation amount of such series of
Preferred Securities on the terms and conditions specified in the underwriting
agreement or purchase agreement, as the case may be, relating to such Preferred
Securities; PROVIDED, HOWEVER, the Option may only be granted if the following
conditions are satisfied:
(i) the Option, if exercised, may not result in the issue and sale of an
aggregate liquidation amount of Preferred Securities greater than
that registered by the Sponsor and the Trust on the applicable
registration statement or registration statements (including by a
registration statement filed under Rule 462(b) under the Securities
Act, if any), as the case may be, with the Commission under the
Securities Act;
(ii) the Option must result, if exercised, in the issuance and sale of
Preferred Securities to such underwriters or initial purchasers, as
the case may be, and the issuance and sale of Common Securities to
the Sponsor on a Pro Rata basis and not in contravention of any
other provision of this Agreement or the Business Trust Act,
consistent with Section 5.1; and
(iii) the Preferred Securities and the Common Securities issued and sold
subject to the exercise of the Option, if any, must be of the same
series and must bear the same CUSIP numbers as the series of
Preferred Securities and the Common Securities,
49
respectively, which were initially issued and sold by the Trust and
the Sponsor, respectively.
(b) With respect to any issuance of Preferred Securities and Common
Securities following the exercise of the Option,
(i) the designation the "__% Preferred Securities" and, for all purposes
under this Declaration, the defined terms the "Preferred Securities"
shall mean both the Preferred Securities issued initially hereunder
and any Preferred Securities issued pursuant to the exercise of the
Option; and
(ii) the designation the "__% Common Securities" and, for all purposes
under this Declaration, the defined term the "Common Securities"
shall mean both the Common Securities issued initially hereunder and
any Common Securities issued pursuant to the requirement of Section
7.13(a)(ii) regarding the additional issuance of Common Securities
on a Pro Rata basis if the Option is exercised.
(c) If the Option set forth in Section 7.13(a) is exercised on a date
other than the initial Closing Date, then the parties to the Declaration shall
cause there to occur a second closing for the consummation of the sale of the
Preferred Securities and Common Securities under substantially the same
conditions that applied to the initial closing of the sale of such securities,
including the following:
(i) the execution and delivery of a second Preferred Security
Certificate, or such additional Preferred Security Certificates, as
appropriate, which is, or are, as the case may be, substantially
identical in all respects to the Preferred Security Certificate
issued initially; and
(ii) the execution and delivery of a second Common Security Certificate,
or such additional Common Security Certificate, as appropriate,
which is, or are, as the case may be, substantially identical in all
relevant respects to the Common Security Certificate issued
initially.
ARTICLE 8
DISSOLUTION AND TERMINATION OF TRUST
SECTION 8.1 Dissolution and Termination of Trust.
(a) The Trust shall dissolve upon the earliest of:
(i) the bankruptcy of the Holder of the Common Securities or
the Sponsor;
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(ii) the filing of a certificate of dissolution or its
equivalent with respect to the Sponsor; the dissolution
of the Trust after obtaining the consent of the Holders
of at least a Majority in Liquidation Amount of the
Securities to dissolve the Trust; or the revocation of
the Sponsor's charter and the expiration of 90 days
after the date of revocation without a reinstatement
thereof;
(iii) the entry of a decree of judicial dissolution of the
Sponsor or the Trust;
(iv) the time when all of the Securities shall have been
called for redemption and the amounts then due shall
have been paid to the Holders in accordance with the
terms of the Securities;
(v) at the Sponsor's election by notice and direction to the
Property Trustee to distribute the Junior Subordinated
Debt Securities to the Holders of the Securities in
exchange for all of the Securities, subject to the
receipt of any necessary approvals by the Applicable
Regulatory Authorities that may then be required under
the applicable capital guidelines or policies of the
Applicable Regulatory Authorities; PROVIDED that the
Sponsor will be required to obtain an opinion of an
independent counsel that the distribution of the Junior
Subordinated Debt Securities will not be taxable to the
Holders of the Preferred Securities for United States
federal income tax purposes; or
(vi) the time when all of the Regular Trustees and the
Sponsor shall have consented to dissolution of the Trust
provided such action is taken before the issuance of any
Securities.
(b) As soon as is practicable after the occurrence of an event
referred to in Section 8.1(a) and upon completion of the winding up and
liquidation of the Trust, the Trustees shall terminate the Trust by filing a
certificate of cancellation with the Secretary of State of the State of
Delaware.
(c) The provisions of Section 4.2 and Article 9 shall survive the
termination of the Trust.
SECTION 8.2 Liquidation Distribution Upon Dissolution of the Trust.
(a) In the event of any voluntary or involuntary liquidation,
dissolution, or winding-up of the Trust (each a "Liquidation"), the Holders of
the Securities on the date of the Liquidation will be entitled to receive, out
of the assets of the Trust available for distribution to Holders of Securities
after satisfaction of the Trusts' liabilities to creditors, if any,
distributions in cash or other immediately available funds in an amount equal to
the aggregate of the stated liquidation amount of $__ per Security plus
accumulated and unpaid Distributions thereon to the
51
date of payment (such amount being the "Liquidation Distribution"), unless, in
connection with such Liquidation, Junior Subordinated Debt Securities in an
aggregate stated principal amount equal to the aggregate stated liquidation
amount of, with an interest rate identical to the distribution rate of, and
accrued and unpaid interest equal to accumulated and unpaid Distributions on,
such Securities shall be distributed on a Pro Rata basis to the Holders of the
Securities in exchange for such Securities.
(b) 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 the Securities shall be paid on a Pro Rata basis. The
Holders of the Common Securities will be entitled to receive distributions upon
any such Liquidation Pro Rata with the Holders of the Preferred Securities
except that if an Indenture Event of Default has occurred and is continuing, the
Preferred Securities shall have a preference over the Common Securities with
regard to such distributions.
ARTICLE 9
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, DELAWARE TRUSTEES 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:
(i) shall not be personally liable for the return of any
portion of the capital contributions (or any return
thereon) of the Holders of the Securities which shall be
made solely from assets of the Trust; and
(ii) shall not be required to pay to the Trust or to any
Holder of Securities any deficit upon dissolution of the
Trust or otherwise.
(b) Pursuant to Section 3803(a) of the Business Trust Act, the
Holder of the Common Securities shall be entitled to the same limitation of
personal liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware; provided,
however, the Holders 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 Section 3803(a) of the Business Trust Act, the
Holders of the Preferred Securities shall be entitled to the same limitation of
personal liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware.
SECTION 9.2 Exculpation.
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(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 who has been selected with reasonable care
by or on behalf of the Trust, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses or any other facts pertinent to the existence and amount of assets from
which Distributions to Holders of Securities might properly be paid.
SECTION 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 another Covered Person for
its good faith reliance on the provisions of this Declaration. The provisions of
this Declaration, to the extent that they restrict the duties and liabilities of
an Indemnified Person otherwise existing at law or in equity (other than the
duties imposed on the Property Trustee under the Trust Indenture Act), are
agreed by the parties hereto to replace such other duties and liabilities of
such Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between
any Covered Person and any Indemnified Person; or
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an
Indemnified Person shall act in a manner that is, or
provides terms that are, fair and reasonable to the
Trust or any Holder of Securities,
the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by the Indemnified
Person shall not
53
constitute a breach of this Declaration or any other agreement contemplated
herein or of any duty or obligation of the Indemnified Person at law or in
equity or otherwise.
(c) Whenever in this Declaration an Indemnified Person is permitted
or required to make a decision:
(i) in its "discretion" or under a grant of similar
authority, the Indemnified Person shall be entitled to
consider such interests and factors as it desires,
including its own interests, and shall have no duty or
obligation to give any consideration to any interest of
or factors affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express standard,
the Indemnified Person shall act under such express
standard and shall not be subject to any other or
different standard imposed by this Declaration or by
applicable law.
SECTION 9.4 Indemnification.
(a)(i) The Issuer shall indemnify, to the full extent permitted by
law, any Junior Subordinated Debt-Securities Issuer Indemnified Person who was
or is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Trust) by reason
of the fact that he is or was a Junior Subordinated Debt-Securities Issuer
Indemnified Person against expenses (including attorney fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests of
the Trust, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the Junior Subordinated Debt-Securities Issuer Indemnified
Person did not act in good faith and in a manner which he reasonably believed to
be in or not opposed to the best interests of the Trust, and, with respect to
any criminal action or proceeding, had reasonable cause to believe that his
conduct was unlawful.
(ii) The Issuer shall indemnify, to the full extent permitted
by law, any Junior Subordinated Debt-Securities Issuer
Indemnified Person who was or is a party or is
threatened to be made a party to any threatened, pending
or completed action or suit by or in the right of the
Trust to procure a judgment in its favor by reason of
the fact that he is or was a Junior Subordinated
Debt-Securities Issuer Indemnified Person against
expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the
defense or settlement of such action or suit if he acted
in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Trust
and except that no such
54
indemnification shall be made in respect of any claim,
issue or matter as to which such Junior Subordinated
Debt-Securities Issuer Indemnified Person shall have
been adjudged to be liable to the Trust unless and only
to the extent that the Court of Chancery of Delaware or
the court in which such action or suit was brought shall
determine upon application that, despite the
adjudication of liability but in view of all the
circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which
such Court of Chancery or such other court shall deem
proper.
(iii) Any indemnification under paragraphs (i) and (ii) of
this Section 9.4(a) (unless ordered by a court) shall be
made by the Issuer only as authorized in the specific
case upon a determination that indemnification of the
Junior Subordinated Debt-Securities Issuer Indemnified
Person is proper in the circumstances because he has met
the applicable standard of conduct set forth in
paragraphs (i) and (ii). Such determination shall be
made (1) by the Regular Trustees by a majority vote of a
quorum consisting of such Regular Trustees who were not
parties to such action, suit or proceeding, (2) if such
a quorum is not obtainable, or, even if obtainable, if a
quorum of disinterested Regular Trustees so directs, by
independent legal counsel in a written opinion, or (3)
by the Common Security Holder of the Trust.
(iv) Expenses (including attorneys' fees) incurred by a
Junior Subordinated Debt-Securities Issuer Indemnified
Person in defending a civil, criminal, administrative or
investigative action, suit or proceeding referred to in
paragraphs (i) and (ii) of this Section 9.4(a) shall be
paid by the Issuer in advance of the final disposition
of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such Junior Subordinated
Debt- Securities Issuer Indemnified Person to repay such
amount if it shall ultimately be determined that he is
not entitled to be indemnified by the Issuer as
authorized in this Section 9.4(a). Notwithstanding the
foregoing, no advance shall be made by the Issuer if a
determination is reasonably and promptly made (i) by the
Regular Trustees by a majority vote of a quorum of
disinterested Regular Trustees, (ii) if such a quorum is
not obtainable, or, even if obtainable, if a quorum of
disinterested Regular Trustees so directs, by
independent legal counsel in a written opinion or (iii)
the Common Security Holder of the Trust, that, based
upon the facts known to the Regular Trustees, counsel or
the Common Security Holder at the time such
determination is made, such Junior Subordinated
Debt-Securities Issuer Indemnified Person acted in bad
faith or in a manner that such
55
person did not believe to be in or not opposed to the
best interests of the Trust, or, with respect to any
criminal proceeding, that such Junior Subordinated
Debt-Securities Issuer 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 Regular Trustees, independent legal
counsel or Common Security Holder reasonably determine
that such person deliberately breached his duty to the
Trust or its Common or Preferred Security Holders.
(v) The indemnification and advancement of expenses provided
by, or granted pursuant to, the other paragraphs of this
Section 9.4(a) shall not be deemed exclusive of any
other rights to which those seeking indemnification and
advancement of expenses may be entitled under any
agreement, vote of stockholders or disinterested
directors of the Issuer or Preferred 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(a) shall be deemed to be provided
by a contract between the Issuer and each Junior
Subordinated Debt-Securities Issuer Indemnified Person
who serves in such capacity at any time while this
Section 9.4(a) is in effect. Any repeal or modification
of this Section 9.4(a) shall not affect any rights or
obligations then existing.
(vi) The Issuer or the Trust may purchase and maintain
insurance on behalf of any person who is or was a Junior
Subordinated Debt-Securities Issuer 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 Issuer would have the
power to indemnify him against such liability under the
provisions of this Section 9.4(a).
(vii) For purposes of this Section 9.4(a), references to "the
Trust" shall include, in addition to the resulting or
surviving entity, any constituent entity (including any
constituent of a constituent) absorbed in a
consolidation or merger, so that any person who is or
was a director, trustee, officer or employee of such
constituent entity, or is or was serving at the request
of such constituent entity as a director, trustee,
officer, employee or agent of another entity, shall
stand in the same position under the provisions of this
Section 9.4(a) with respect to the resulting or
surviving entity as he would have with respect to such
constituent entity if its separate existence had
continued.
56
(viii) The indemnification and advancement of expenses provided
by, or granted pursuant to, this Section 9.4(a) shall,
unless otherwise provided when authorized or ratified,
continue as to a person who has ceased to be a Junior
Subordinated Debt-Securities Issuer Indemnified Person
and shall inure to the benefit of the heirs, executors
and administrators of such a person. The obligation to
indemnify as set forth in this Section 9.4(a) shall
survive the resignation or removal of the Delaware
Trustee or the Property Trustee or the termination of
this Declaration.
(b) The Issuer agrees to indemnify the (i) Property Trustee, (ii)
the Delaware Trustee, (iii) any Affiliate of the Property Trustee or the
Delaware Trustee, and (iv) any officers, directors, shareholders, members,
partners, employees, representatives, custodians, nominees or agents of the
Property Trustee or the Delaware Trustee (each of the Persons in (i) through
(iv) being referred to as a "Fiduciary Indemnified Person") for, and to hold
each Fiduciary Indemnified Person harmless against, any loss, liability or
expense incurred without negligence or bad faith on its part, arising out of or
in connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses (including reasonable legal fees and
expenses) of defending itself against or investigating any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder. The obligation to indemnify as set forth in this Section 9.4(b) shall
survive the resignation and removal of the Delaware Trustee or the Property
Trustee and the satisfaction and discharge of this Declaration. In addition, the
Issuer has agreed in the Indenture to pay the fees and expenses of the Delaware
Trustee and the Property Trustee.
SECTION 9.5 Outside Businesses.
Subject to the provisions of Section 6.3, any Covered Person, the
Sponsor, the Delaware Trustee and the Property Trustee may engage in or possess
an interest in other business ventures of any nature or description,
independently or with others, similar or dissimilar to the activities 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 activities of the Trust, shall not be deemed wrongful or
improper. No Covered Person, the Sponsor, the Delaware Trustee or the Property
Trustee shall be obligated to present any particular investment or other
opportunity to the Trust even if such opportunity is of a character that, if
presented to the Trust, could be taken by the Trust, and any Covered Person, the
Sponsor, the Delaware Trustee and the Property Trustee shall have the right to
take for its own account (individually or as a partner or fiduciary) or to
recommend to others any such particular investment or other opportunity. Any
Covered Person, the Delaware Trustee and the Property Trustee may engage or be
interested in any financial or other transaction with the Sponsor or any
Affiliate of the Sponsor, or may act as depositary for, trustee or agent for, or
act on any committee or body of holders of, securities or other obligations of
the Sponsor or its Affiliates.
57
ARTICLE 10
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 Regular
Trustees shall keep, or cause to be kept, full books of account, records and
supporting documents, which shall reflect in reasonable detail, each transaction
of the Trust. The books of account shall be maintained on the accrual method of
accounting, in accordance with generally accepted accounting principles,
consistently applied. The Trust shall use the accrual method of accounting for
United States federal income tax purposes. The books of account and the records
of the Trust shall be examined by and reported upon as of the end of each Fiscal
Year of the Trust by a firm of independent certified public accountants selected
by the Regular Trustees.
(b) The Regular Trustees shall cause to be prepared and delivered to
each of the Holders of Securities, within 90 days after the end of each Fiscal
Year of the Trust, annual financial statements of the Trust, including a balance
sheet of the Trust as of the end of such Fiscal Year, and the related statements
of income or loss.
(c) The Regular Trustees shall cause to be duly prepared and
delivered to each of the Holders of Securities, an 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 Regular Trustees shall
endeavor to deliver all such statements within 30 days after the end of each
Fiscal Year of the Trust.
(d) The Regular Trustees shall cause to be duly prepared and filed
with the appropriate taxing authority, an annual United States federal income
tax return, on a Form 1041 or such other form required by United States federal
income tax law, and any other annual income tax returns required to be filed by
the Regular Trustees on behalf of the Trust with any state or local taxing
authority.
SECTION 10.3 Banking.
The Trust shall maintain one or more bank accounts in the name and
for the sole benefit of the Trust; provided, however, that all payments of funds
in respect of the Debentures held by the Property Trustee shall be made directly
to the Property Account and no other funds of the Trust shall be deposited in
the Property Account. The sole signatories for such accounts shall be designated
by the Regular Trustees; provided, however, that the Property Trustee shall
designate the signatories for the Property Account.
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SECTION 10.4 Withholding.
The Trust and the Regular Trustees shall comply with all withholding
requirements under United States federal, state and local law. The Trust shall
request, and the Holders shall provide to the Trust, such forms or certificates
as are necessary to establish an exemption from withholding with respect to each
Holder, and any representations and forms as shall reasonably be requested by
the Trust to assist it in determining the extent of, and in fulfilling, its
withholding obligations. The Regular Trustees 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 Trust is required to
withhold and pay over any amounts to any authority with respect to distributions
or allocations to any Holder, the amount withheld shall be deemed to be a
distribution in the amount of the withholding to the Holder. In the event of any
claimed over withholding, Holders shall be limited to an action against the
applicable jurisdiction. If the amount required to be withheld was not withheld
from actual Distributions made, the Trust may reduce subsequent Distributions by
the amount of such withholding.
ARTICLE 11
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 Sponsor and (i) the Regular
Trustees (or, if there are more than two Regular Trustees, a majority of the
Regular Trustees) and (ii) the Property Trustee if the amendment affects the
rights, powers, duties, obligations or immunities of the Property Trustee; and
(iii) the Delaware Trustee if the amendment affects the rights, powers, duties,
obligations or immunities of the Delaware Trustee.
(b) No amendment shall be made, and any such purported amendment
shall be void and ineffective:
(i) unless, in the case of any proposed amendment, the
Property Trustee shall have first received an Officers'
Certificate from each of the Trust and the Sponsor that
such amendment is permitted by, and conforms to, the
terms of this Declaration (including the terms of the
Securities);
(ii) unless, in the case of any proposed amendment which
affects the rights, powers, duties, obligations or
immunities of the Property Trustee, the Property Trustee
shall have first received:
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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 that
all conditions precedent to the execution and
delivery of such amendment have been satisfied;
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 that all conditions precedent to
the execution and delivery of such amendment have
been satisfied; and
(iii) to the extent the result of such amendment would be to:
a. cause the Trust to be classified other than as a
grantor trust for United States federal income tax
purposes;
b. reduce or otherwise adversely affect the powers of
the Property Trustee in contravention of the Trust
Indenture Act; or
c. cause the Trust to be deemed to be an Investment
Company required to be registered under the
Investment Company Act.
(c) If the Trust has issued any Securities that remain outstanding:
(i) any amendment that would (a) change the amount or timing
of any distribution of 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 (b) restrict the right of a Holder of
Securities to institute suit for the enforcement of any
such payment on or after such date, will entitle the
Holders of such Securities, voting together as a single
class, to vote on such amendment or proposal and such
amendment or proposal shall not be effective except with
the approval of each of the Holders of the Securities
affected thereby; and
(ii) any amendment that would (a) adversely affect the
powers, preferences or special rights of the Securities,
whether by way of amendment to this Declaration or
otherwise or (b) result in the dissolution, winding-up
or termination of the Trust other than pursuant to the
terms of this Declaration, will entitle the holders of
the Securities voting together as a single class to vote
on such
60
amendment or proposal and such amendment or proposal
shall not be effective except with the approval of 66
2/3% of the Securities affected thereby; provided that,
if any amendment or proposal referred to in clause (a)
above would adversely affect only the Preferred
Securities or the Common Securities, then only the
affected class will be entitled to vote on such
amendment or proposal and such amendment or proposal.
(d) This Section 11.1 shall not be amended without the consent of
all of the Holders of the Securities.
(e) Article 4 shall not be amended without the consent of the
Holders of a Majority in Liquidation Amount of the Common Securities.
(f) The rights of the Holders of the Common Securities under Article
5 to increase or decrease the number of, and appoint and remove Trustees shall
not be amended without the consent of the Holders of a Majority in Liquidation
Amount of the Common Securities.
(g) Notwithstanding Section 11.1(c), this Declaration may be amended
without the consent of the Holders of the Securities, if such amendment does not
adversely affect in any material respect the rights of the holders of the
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;
(iv) to conform to any change in Rule 3a-5 of the Investment
Company Act or written change in interpretation or
application of Rule 3a-5 of the Investment Company Act
by any legislative body, court, government agency or
regulatory authority; or
(v) to modify, eliminate and add to any provision of this
Declaration to ensure that the Trust will be classified
as a grantor trust for United States federal income tax
purposes at all times that any Securities are
outstanding or to ensure that the Trust will not be
required to register as an Investment Company under the
Investment Company Act.
SECTION 11.2 Meetings of the Holders of Securities; Action by
Written Consent.
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(a) Meetings of the Holders of any class of Securities may be called
at any time by the Regular Trustees (or as provided in the terms of the
Securities) to consider and act on any matter on which Holders of such class of
Securities are entitled to act under the terms of this Declaration, the terms of
the Securities or the rules of any stock exchange on which the Preferred
Securities are listed or admitted for trading. The Regular Trustees shall call a
meeting of the Holders of such class if directed to do so by the Holders of at
least 10% in Liquidation Amount of such class of Securities. Such direction
shall be given by delivering to the Regular Trustees one or more calls in a
writing stating that the signing Holders of Securities wish to call a meeting
and indicating the general or specific purpose for which the meeting is to be
called. Any Holders of Securities calling a meeting shall specify in writing the
Certificates held by the Holders of Securities exercising the right to call a
meeting and only those Securities specified shall be counted for purposes of
determining whether the required percentage set forth in the second sentence of
this paragraph has been met.
(b) Except to the extent otherwise provided in the terms of the
Securities, the following provisions shall apply to meetings of Holders of
Securities:
(i) notice of any such meeting shall be given to all the
Holders of Securities having a right to vote thereat at
least 7 days and not more than 60 days before the date
of such meeting. Whenever a vote, consent or approval of
the Holders of Securities is permitted or required under
this Declaration or the rules of any stock exchange on
which the Preferred Securities are listed or admitted
for trading, such vote, consent or approval may be given
at a meeting of the Holders of Securities. Any action
that may be taken at a meeting of the Holders of
Securities may be taken without a meeting and without
prior notice if a consent in writing setting forth the
action so taken is signed by the Holders of Securities
owning not less than the minimum amount of Securities in
liquidation amount that would be necessary to authorize
or take such action at a meeting at which all Holders of
Securities having a right to vote thereon were present
and voting. Prompt notice of the taking of action
without a meeting shall be given to the Holders of
Securities entitled to vote who have not consented in
writing. The Regular Trustees may specify that any
written ballot submitted to the Security Holders for the
purpose of taking any action without a meeting shall be
returned to the Trust within the time specified by the
Regular Trustees;
(ii) each Holder of a Security may authorize any Person to
act for it by proxy on all matters in which a Holder of
Securities is entitled to participate, including waiving
notice of any meeting, or voting or participating at a
meeting. No proxy shall be valid after the expiration of
11 months from the date thereof unless otherwise
provided in the proxy. Every proxy shall be revocable at
the pleasure of the Holder of Securities executing such
proxy. Except
62
as otherwise provided herein, all matters relating to
the giving, voting or validity of proxies shall be
governed by the General Corporation Law of the State of
Delaware relating to proxies, and judicial
interpretations thereunder, as if the Trust were a
Delaware corporation and the Holders of the Securities
were stockholders of a Delaware corporation;
(iii) each meeting of the Holders of the Securities shall be
conducted by the Regular Trustees or by such other
Person that the Regular Trustees may designate; and
(iv) unless the Business Trust Act, this Declaration, the
terms of the Securities, the Trust Indenture Act or the
listing rules of any stock exchange on which the
Preferred Securities are then listed for trading,
otherwise provides, the Regular Trustees, in their sole
discretion, shall establish all other provisions
relating to meetings of Holders of Securities, including
notice of the time, place or purpose of any meeting at
which any matter is to be voted on by any Holders of
Securities, waiver of any such notice, action by consent
without a meeting, the establishment of a record date,
quorum requirements, voting in person or by proxy or any
other matter with respect to the exercise of any such
right to vote.
ARTICLE 12
REPRESENTATIONS OF PROPERTY TRUSTEE
AND DELAWARE TRUSTEE
SECTION 12.1 Representations and Warranties of the Property Trustee.
The Trustee that acts as initial Property Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Declaration, and
each Successor Property Trustee represents and warrants to the Trust and the
Sponsor at the time of the Successor Property Trustee's acceptance of its
appointment as Property Trustee that:
(a) the Property Trustee is a national banking association, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation or organization, 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 Property Trustee satisfies the requirements set forth in
Section 6.3(a);
(c) the execution, delivery and performance by the Property Trustee
of this Declaration has been duly authorized by all necessary corporate action
on the part of the Property Trustee. This Declaration has been duly executed and
delivered by the Property Trustee, and it
63
constitutes a legal, valid and binding obligation of the Property Trustee,
enforceable against it in accordance with its terms, subject to applicable
bankruptcy, reorganization, moratorium, insolvency and other similar laws
affecting creditors' rights generally and to general principles of equity and
the discretion of the court (regardless of whether the enforcement of such
remedies is considered in a proceeding in equity or at law);
(d) the execution, delivery and performance of this Declaration by
the Property Trustee does not conflict with or constitute a breach of the
articles of association or incorporation, as the case may be, or the by-laws (or
other similar organizational documents) of the Property Trustee; and
(e) 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 Property Trustee of this Declaration.
SECTION 12.2 Representations and Warranties of the Delaware Trustee.
The Trustee that acts as initial Delaware Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Declaration, and
each Successor Delaware Trustee represents and warrants to the Trust and the
Sponsor at the time of the Successor Delaware Trustee's acceptance of its
appointment as Delaware Trustee that:
(a) the Delaware Trustee satisfies the requirements set forth in
Section 6.2, satisfies Trust Section 3807 of the Business Trust Act and has the
power and authority to execute and deliver, and to carry out and perform its
obligations under the terms of, this Declaration and, if it is not a natural
person, is duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation or organization;
(b) the Delaware Trustee has been authorized to perform its
obligations under the Certificate of Trust and this Declaration. This
Declaration under Delaware law constitutes a legal, valid and binding obligation
of the Delaware Trustee, enforceable against it in accordance with its terms,
subject to applicable bankruptcy, reorganization, moratorium, insolvency and
other similar laws affecting creditors' rights generally and to general
principles of equity and the discretion of the court (regardless of whether the
enforcement of such remedies is considered in a proceeding in equity or at law);
and
(c) 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 Delaware Trustee of this Declaration.
64
ARTICLE 13
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
or mailed by registered or certified mail, as follows:
(a) if given to the Trust, in care of the Regular Trustees at the
Trust's mailing address set forth below (or such other address as the Trust may
give notice of to the Property Trustee, the Delaware Trustee and the Holders of
the Securities):
c/o Bank United Corp.
3200 Southwest Freeway
Suite 2600
Houston, Texas 77027
(b) if given to the Delaware Trustee, at the mailing address set
forth below (or such other address as the Delaware Trustee may give notice of to
the Regular Trustees, the Property Trustee and the Holders of the Securities):
[INSERT NAME, ADDRESS, CONTACT INFORMATION FOR DELAWARE TRUSTEE]
(c) if given to the Property Trustee, at its Corporate Trust Office
(or such other address as the Property Trustee may give notice of to the Regular
Trustees, the Delaware Trustee and the Holders of the Securities).
(d) if given to the Holder of the Common Securities, at the mailing
address of the Sponsor set forth below (or such other address as the Holder of
the Common Securities may give notice of to the Property Trustee, the Delaware
Trustee and the Trust):
(e) if given to any other Holder, at the address set forth on the
register 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.
65
This Declaration and the rights of the parties hereunder shall be
governed by and interpreted in accordance with the laws of the State of
Delaware.
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 in a manner consistent with
such classification.
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 Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether 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 Trustees to one of such counterpart signature pages.
All of such counterpart signature pages shall be read as though one, and they
shall have the same force and effect as though all of the signers had signed a
single signature page.
[THE REST OF THIS PAGE HAS BEEN LEFT BLANK INTENTIONALLY;
THE SIGNATURE PAGE FOLLOWS.]
66
IN WITNESS WHEREOF, the undersigned have caused these presents to be
executed as of the day and year first above written.
BANK UNITED CORP.,
as Sponsor, as Common Securities Holder
and as Issuer
By: ____________________________________
Name:
Title:
BANK OF NEW YORK, DELAWARE,
as Property Trustee
By: ____________________________________
Name:
Title:
_________________________________,
as Delaware Trustee
By: ____________________________________
Name:
Title:
_____________, as Regular Trustee
By: ____________________________________
________________, as Regular Trustee
67
By: ____________________________________
_______________, as Regular Trustee
By: ____________________________________
EXHIBIT A
[IF THE CAPITAL SECURITY IS TO BE A GLOBAL CAPITAL SECURITY, INSERT
THE FOLLOWING: THIS PREFERRED SECURITY IS A GLOBAL PREFERRED SECURITY WITHIN THE
MEANING OF THE DECLARATION HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE "DEPOSITARY"), OR A
NOMINEE OF THE DEPOSITARY. THIS PREFERRED SECURITY IS EXCHANGEABLE FOR PREFERRED
SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS
NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE DECLARATION AND NO
TRANSFER OF THIS PREFERRED SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A
WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE
REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS PREFERRED SECURITY CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY PREFERRED SECURITY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REGISTERED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
CERTIFICATE NO.___________ NUMBER OF PREFERRED SECURITIES:___________
CUSIP NO._________________
CERTIFICATE EVIDENCING __% PREFERRED SECURITIES
OF
BANK UNITED CAPITAL TRUST
% PREFERRED SECURITIES
(LIQUIDATION AMOUNT $__ PER PREFERRED SECURITY)
FULLY AND UNCONDITIONALLY
GUARANTEED BY BANK UNITED CORP.
BANK UNITED CAPITAL TRUST, a statutory business trust created under
the laws of the State of Delaware (the "Trust"), hereby certifies that Cede &
Co. (the "Holder") is the registered owner of preferred securities of the Trust
representing undivided beneficial ownership interests in the assets of the Trust
designated the "__% Preferred Security" (liquidation amount $__ per Preferred
Security) (the "Preferred Securities"). The Preferred Securities are
transferable on the register of the Trust, in person or by a duly authorized
attorney, upon surrender of this certificate duly endorsed and in proper form
for transfer as provided in the Declaration (as defined below). The designation,
rights, privileges, restrictions, preferences and other terms and provisions of
the Preferred Securities represented hereby are issued and shall in all respects
be subject to the provisions of the Amended and Restated Declaration of Trust of
the Trust, dated as of , ____, as the same may be amended from time to time (the
"Declaration"), by and among BANK UNITED CORP., _____________, ________________,
2
and ________________, as Regular Trustees, and Bank of New York, Delaware as
Property Trustee and as Delaware Trustee and the Holders. 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 described
therein. The Sponsor will provide a copy of the Declaration, the Guarantee and
the Indenture to a Holder without charge upon written request to the Sponsor at
its principal place of business.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States federal
income tax purposes, the Junior Subordinated Debt Securities as indebtedness and
the Preferred Securities as evidence of undivided indirect beneficial ownership
interests in the Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate this
______ day of , ____.
BANK UNITED CAPITAL TRUST
By:_______________________________
Name:
Title: Regular Trustee
This is one of the Preferred Securities referred to in the
within-mentioned Declaration.
BANK OF NEW YORK, DELAWARE,
as Property Trustee
By:____________________________________
Authorized Officer
EXHIBIT B
TRANSFER OF THIS CERTIFICATE IS SUBJECT TO THE
CONDITIONS SET FORTH IN THE DECLARATION
REFERRED TO BELOW.
CERTIFICATE NO.______ NUMBER OF COMMON SECURITIES:______________
CERTIFICATE EVIDENCING COMMON SECURITIES
OF
BANK UNITED CAPITAL TRUST
% COMMON SECURITIES
(LIQUIDATION AMOUNT $__ PER COMMON SECURITY)
BANK UNITED CAPITAL TRUST, a statutory business trust created under
the laws of the State of Delaware (the "Trust"), hereby certifies that BANK
UNITED CORP. (the "Holder") is the registered owner of common securities of the
Trust representing an undivided beneficial ownership interest in the assets of
the Trust designated the "_____% Common Securities" (liquidation amount $__ per
Common Security) (the "Common Securities"). The Common Securities are not
transferable and any attempted transfer thereof shall be void except as
permitted by applicable law and by Section 7.9(b)(ii) of the Declaration (as
defined below). The designation, rights, privileges, restrictions, preferences
and other terms and provisions of the Common Securities represented hereby are
issued and shall in all respects be subject to the provisions of the Amended and
Restated Declaration of Trust of the Trust, dated as of ____________ ___, ____
(as the same may be amended from time to time, the "Declaration"), by and among
BANK UNITED CORP., as Sponsor, ______________, _______________ and
_______________, as Regular Trustees, and Bank of New York, Delaware as Property
Trustee and as Delaware Trustee, and the Holders. The Holder is entitled to the
benefits of the Guarantee to the extent described therein. Capitalized terms
used herein but not defined shall have the meaning given them in the
Declaration. 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.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States federal
income tax purposes, the Junior Subordinated Debt Securities as indebtedness and
the Common Securities as evidence of an undivided indirect beneficial ownership
interest in the Junior Subordinated Debt Securities.
2
IN WITNESS WHEREOF, the Trust has executed this certificate this
____ day of , ____.
BANK UNITED CAPITAL TRUST
By:____________________________________
Name:
Title: Regular Trustee