Exhibit 4.1
FIRST AMENDMENT TO
AMENDED AND RESTATED TRUST AGREEMENT
FIRST AMENDMENT to Amended and Restated Trust Agreement (the "Amendment"),
dated as of March 24, 2004, among (i) BancFirst Corporation, an Oklahoma
corporation (including any successors or assigns, the "Depositor"); (ii) The
Bank of New York, a New York banking corporation, as property trustee, (in such
capacity, the "Property Trustee"); (iii) David E. Rainbolt, an individual; Joe
T. Shockley, Jr., an individual; and Randy P. Foraker, an individual; each of
whose address is c/o BancFirst Corporation, 101 North Broadway, Suite 800,
Oklahoma City, Oklahoma 73102 (each an "Administrative Trustee" and collectively
the "Administrative Trustees").
WITNESSETH
WHEREAS, the Depositor, the Property Trustee, The Bank of New York
(Delaware), as Delaware trustee, and each of the Administrative Trustees have
heretofore entered into that certain Amended and Restated Trust Agreement dated
February 26, 2004 (the "Amended and Restated Trust Agreement"); and
WHEREAS, the second recital to the Amended and Restated Trust Agreement
stated that the purpose of such agreement was to provide for, among other
things, the issuance and sale of the "Preferred Securities" by BFC Capital Trust
II (the "Trust") pursuant to that certain Underwriting Agreement dated as of
February 23, 2004, among the Trust, the Depositor, and Advest, Inc., and Howe
Barnes Investments, Inc., as the Underwriters; and
WHEREAS, pursuant to Section 1 of the Underwriting Agreement, the
Preferred Securities included both "Firm Securities," defined as Preferred
Securities having an aggregate liquidation amount of $25,000,000, and "Option
Securities," having an aggregate liquidation amount of up to an additional
$1,000,000; and
WHEREAS, the Amended and Restated Trust Agreement provided only for the
issuance and sale of Preferred Securities that constituted "Firm Securities"
under the Underwriting Agreement (defined in the Underwriting Agreement as
Preferred Securities having an aggregate liquidation amount of $25,000,000),
notwithstanding the stated intention of the parties to provide for the issuance
and sale of Preferred Securities "pursuant to the Underwriting Agreement,"
conformity with which would have required that the Amended and Restated Trust
Agreement provide for the additional possible issuance and sale of Preferred
Securities constituting "Option Securities," as defined in the Underwriting
Agreement; and
WHEREAS, pursuant to Section 10.2(a) of the Amended and Restated Trust
Agreement, the Amended and Restated Trust Agreement may be amended from time to
time by the Property Trustee, the Administrative Trustees and the Depositor,
without the consent of any Securityholders (as defined therein), to cure any
ambiguity, correct or supplement any provision therein which may be inconsistent
with any other provision therein, or to make any other provisions with respect
to matters or questions arising under the Amended and Restated Trust Agreement,
so long as any such amendment is not inconsistent with the other provisions of
the Amended and Restated Trust Agreement; and
WHEREAS, the parties hereto desire to amend the Amended and Restated Trust
Agreement to provide for the additional possible issuance and sale of Preferred
Securities constituting "Option Securities" in conformity with the terms of the
Underwriting Agreement, as contained herein;
Exhibit 4.1
NOW THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the sufficiency of
which is hereby acknowledged, each party, for the benefit of the other parties
and for the benefit of the Holders, hereby agrees as follows:
1. Definitions. Capitalized terms used herein and not defined herein
shall have the respective meanings given to such terms in the Amended and
Restated Trust Agreement.
2. Amendments to the Amended and Restated Trust Agreement.
(a) Section 1.1 is hereby amended to include the following
definitions:
"Option Closing Date" shall have the meaning provided in the
Underwriting Agreement.
"Option Securities" means an aggregate Liquidation Amount of
up to $1,000,000 of the Trust's 7.20% Cumulative Trust
Preferred Securities, issuable to the Underwriters, at their
option, exercisable within 30 days after the date of the
Underwriting Agreement, solely to cover over-allotments, if
any.
(b) Section 2.4(a) is hereby amended to read in its entirety as
follows:
(a) The Depositor and an Administrative Trustee, on behalf of
the Trust and pursuant to the Trust Agreement, have executed
and delivered the Underwriting Agreement. Contemporaneously
with the execution and delivery of this Trust Agreement, an
Administrative Trustee, on behalf of the Trust, shall execute
in accordance with Section 5.2 and deliver to the Underwriters
named in the Underwriting Agreement, Preferred Securities
Certificates, registered in the name of the nominee of the
initial Clearing Agency, as instructed by Advest, Inc., as an
Underwriter, in an aggregate amount of 1,000,000 Preferred
Securities having an aggregate Liquidation Amount of
$25,000,000, against receipt of such aggregate purchase price
of such Preferred Securities of $25,000,000 which amount the
Administrative Trustee shall promptly deliver to the Property
Trustee. At the option of the Underwriters, within 30 days of
the date of the Underwriting Agreement, and solely for the
purpose of covering an over-allotment, if any, an
Administrative Trustee, on behalf of the Trust, shall execute
in accordance with Section 5.2 and deliver to the Underwriters
named in the Underwriting Agreement, Preferred Securities
Certificates, registered in the name of the nominee of the
initial Clearing Agency, as instructed by Advest, Inc., as an
Underwriter, in an aggregate amount of up to 40,000 Option
Securities having an aggregate Liquidation Amount of up to
$1,000,000, against receipt of such aggregate purchase price
of such Option Securities of up to $1,000,000 which amount the
Administrative Trustee shall promptly deliver to the Property
Trustee.
(c) Section 2.5 is hereby amended to read in its entirety as
follows:
Contemporaneously with the execution and delivery of this
Trust Agreement, an Administrative Trustee, on behalf of the
Trust, shall execute in accordance with Section 5.2 and
deliver to the Depositor Common Securities Certificates,
registered in the name of the Depositor, in an aggregate
amount of 30,928 Common Securities having an
Exhibit 4.1
aggregate Liquidation Amount of $773,200, against payment by
the Depositor of such amount, which amount such Administrative
Trustee shall promptly deliver to the Property Trustee. In the
event of any exercise of an over-allotment option requiring
issuance of additional Preferred Securities Certificates, as
described in Section 2.4 above, a proportionate number of
additional Common Securities Certificates, with corresponding
aggregate Liquidation Amount, shall be delivered to the
Depositor. An Administrative Trustee, on behalf of the Trust,
shall subscribe to and purchase from the Depositor Debentures,
registered in the name of the Property Trustee on behalf of
the Trust, and having an aggregate principal amount equal to
$25,773,200 (plus, in the event of any exercise of the
over-allotment option (i) a corresponding additional number of
Debentures not exceeding an aggregate principal amount of
$1,000,000 and (ii) a corresponding number of Debentures not
exceeding an aggregate principal amount equal to the aggregate
Liquidation Amount of Common Securities issued pursuant to
such exercise of an over-allotment option) and, in
satisfaction of the purchase price for such Debentures, the
Property Trustee, on behalf of the Trust, shall deliver to the
Depositor the sum of $25,773,200, such amount being the sum of
the amounts delivered to the Property Trustee pursuant to (a)
the second sentence of Section 2.4 and (b) the first sentence
of this Section 2.5, plus any corresponding over-allotment
option amount (being the sum of the amounts delivered to the
Property Trustee pursuant to (i) the third sentence of Section
2.4, and (ii) the second sentences of this Section 2.5).
(d) Section 5.3 is hereby amended to read in its entirety as
follows:
On the Closing Date (and, with respect to the Option
Securities, on the Option Closing Date), the Administrative
Trustees shall cause Trust Securities Certificates, in an
aggregate Liquidation Amount as provided in Section 2.4 and
Section 2.5, to be executed on behalf of the Trust and
delivered to or upon the written order of the Depositor,
signed by its chief executive officer, its president, any
executive vice president or any vice president, treasurer or
assistant treasurer or controller without further corporate
action by the Depositor, in authorized denominations.
3. Counterparts. This Amendment may be executed in several
counterparts, each of which when executed and delivered shall be deemed an
original and all of which counterparts, taken together, shall constitute but one
and the same Amendment.
4. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE.
5. Amended and Restated Trust Agreement Remains in Effect. Except as
provided herein, all provisions, terms and conditions of the Amended and
Restated Trust Agreement shall remain in full force and effect. As amended
hereby, the Amended and Restated Trust Agreement is ratified and confirmed in
all respects.
[Signatures Provided on Following Page]
Exhibit 4.1
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered by their duly authorized officers as of the day and year
first above written.
BancFirst Corporation
By: /s/ Joe T. Shockley, Jr. /s/ David E. Rainbolt
----------------------------------- -----------------------------------
Name: Joe T. Shockley, Jr. Name: David E. Rainbolt,
Title: Executive Vice President and as Administrative Trustee
Chief Financial Officer
The Bank of New York, /s/ Joe T. Shockley, Jr.
as Property Trustee -----------------------------------
Name: Joe T. Shockley, Jr.
as Administrative Trustee
By: /s/ Van K. Brown /s/ Randy P. Foraker
----------------------------------- -----------------------------------
Name: Van K. Brown Name: Randy P. Foraker,
Title: Vice President as Administrative Trustee