EXHIBIT 99.b.2
AMENDED AND RESTATED DECLARATION
OF TRUST
Fidelity Federal Bancorp Statutory Trust I-2004
Dated as of December 16, 2004
TABLE OF CONTENTS
Page
ARTICLE I
INTERPRETATION AND DEFINITIONS
Section 1.1. Definitions.....................................................................................1
ARTICLE II
ORGANIZATION
Section 2.1. Name............................................................................................8
Section 2.2. Office..........................................................................................8
Section 2.3. Purpose.........................................................................................8
Section 2.4. Authority.......................................................................................8
Section 2.5. Title to Property of the Trust..................................................................9
Section 2.6. Powers and Duties of the Trustees and the Administrators........................................9
Section 2.7. Prohibition of Actions by the Trust and the Trustees...........................................13
Section 2.8. Powers and Duties of the Institutional Trustee.................................................13
Section 2.9. Certain Duties and Responsibilities of the Trustees and the Administrators.....................15
Section 2.10. Certain Rights of Institutional Trustee........................................................16
Section 2.11. Delaware Trustee...............................................................................18
Section 2.12. Execution of Documents.........................................................................19
Section 2.13. Not Responsible for Recitals or Issuance of Securities.........................................19
Section 2.14. Duration of Trust..............................................................................19
Section 2.15. Mergers........................................................................................19
ARTICLE III
SPONSOR
Section 3.1. Sponsor's Purchase of Common Securities........................................................21
Section 3.2. Responsibilities of the Sponsor................................................................21
ARTICLE IV
TRUSTEES AND ADMINISTRATORS
Section 4.1. Number of Trustees.............................................................................21
Section 4.2. Delaware Trustee...............................................................................21
Section 4.3. Institutional Trustee; Eligibility.............................................................22
Section 4.4. Certain Qualifications of the Delaware Trustee Generally.......................................22
Section 4.5. Administrators.................................................................................22
Section 4.6. Initial Delaware Trustee.......................................................................22
Section 4.7. Appointment, Removal and Resignation of the Trustees and the Administrators....................23
Section 4.8. Vacancies Among Trustees.......................................................................24
Section 4.9. Effect of Vacancies............................................................................24
Section 4.10. Meetings of the Trustees and the Administrators................................................24
Section 4.11. Delegation of Power............................................................................25
Section 4.12. Merger, Conversion, Consolidation or Succession to Business....................................25
ARTICLE V
DISTRIBUTIONS
Section 5.1. Distributions..................................................................................25
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ARTICLE VI
ISSUANCE OF SECURITIES
Section 6.1. General Provisions Regarding Securities........................................................26
Section 6.2. Paying Agent, Transfer Agent, Calculation Agent and Registrar..................................27
Section 6.3. Form and Dating................................................................................27
Section 6.4. Mutilated, Destroyed, Lost or Stolen Certificates..............................................27
Section 6.5. Temporary Securities...........................................................................38
Section 6.6. Cancellation...................................................................................28
Section 6.7. Rights of Holders; Waivers of Past Defaults....................................................28
ARTICLE VII
DISSOLUTION AND TERMINATION OF TRUST
Section 7.1. Dissolution and Termination of Trust...........................................................30
ARTICLE VIII
TRANSFER OF INTERESTS
Section 8.1. General........................................................................................31
Section 8.2. Transfer Procedures and Restrictions...........................................................32
Section 8.3. Deemed Security Holders........................................................................36
Section 8.4. Initial Transfer of Capital Securities.........................................................36
ARTICLE IX
LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
Section 9.1. Liability......................................................................................36
Section 9.2. Exculpation....................................................................................37
Section 9.3. Fiduciary Duty.................................................................................37
Section 9.4. Indemnification................................................................................38
Section 9.5. Outside Businesses.............................................................................40
Section 9.6. Compensation; Fee..............................................................................40
ARTICLE X
ACCOUNTING
Section 10.1. Fiscal Year....................................................................................41
Section 10.2. Certain Accounting Matters.....................................................................41
Section 10.3. Banking........................................................................................42
Section 10.4. Withholding....................................................................................42
ARTICLE XI
AMENDMENTS AND MEETINGS
Section 11.1. Amendments.....................................................................................42
Section 11.2. Meetings of the Holders of the Securities; Action by Written Consent...........................44
ARTICLE XII
REPRESENTATIONS OF INSTITUTIONAL TRUSTEE AND DELAWARE TRUSTEE
Section 12.1. Representations and Warranties of Institutional Trustee........................................45
Section 12.2. Representations and Warranties of Delaware Trustee.............................................46
ARTICLE XIII
MISCELLANEOUS
Section 13.1. Notices........................................................................................46
Section 13.2. Governing Law..................................................................................48
Section 13.3. Submission to Jurisdiction.....................................................................48
Section 13.4. Intention of the Parties.......................................................................48
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Section 13.5. Headings.......................................................................................48
Section 13.6. Successors and Assigns.........................................................................48
Section 13.7. Partial Enforceability.........................................................................48
Section 13.8. Counterparts...................................................................................49
ANNEXES AND EXHIBITS
ANNEX I Terms of Floating Rate TruPS(R)and Floating Rate Common Securities
EXHIBIT A-1 Form of Capital Security Certificate
EXHIBIT A-2 Form of Common Security Certificate
EXHIBIT B Form of Transferee Certificate to be Executed by Transferees Other than QIBs
EXHIBIT C Form of Transferor Certificate to be Executed for QIBs
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AMENDED AND RESTATED DECLARATION OF TRUST
OF
Fidelity Federal Bancorp Statutory Trust I-2004
December 16, 2004
AMENDED AND RESTATED DECLARATION OF TRUST (this "Declaration"), dated
and effective as of December 16, 2004, by the Trustees (as defined herein), the
Administrators (as defined herein), the Sponsor (as defined herein) and the
holders from time to time of undivided beneficial interests in the assets of the
Trust (as defined herein) to be issued pursuant to this Declaration.
WHEREAS, certain of the Trustees and the Sponsor established Fidelity
Federal Bancorp Statutory Trust I-2004 (the "Trust"), a statutory trust under
the Statutory Trust Act (as defined herein), pursuant to a Declaration of Trust,
dated as of December 1, 2004 (the "Original Declaration"), and a Certificate of
Trust filed with the Secretary of State of the State of Delaware on December 1,
2004, for the sole purpose of issuing and selling certain securities
representing undivided beneficial interests in the assets of the Trust and
investing the proceeds thereof in certain debentures of the Debenture Issuer (as
defined herein) and participating in the Regional Diversified Funding 2004-II
Ltd. transaction or other pooled trust preferred program;
WHEREAS, as of the date hereof, no interests in the assets of the
Trust have been issued; and
WHEREAS, all of the Trustees, the Administrators and the Sponsor, by
this Declaration, amend and restate each and every term and provision of the
Original Declaration.
NOW, THEREFORE, it being the intention of the parties hereto to
continue the Trust as a statutory trust under the Statutory Trust Act and that
this Declaration constitutes the governing instrument of such statutory trust,
and that all assets contributed to the Trust will be held in trust for the
benefit of the holders, from time to time, of the securities representing
undivided beneficial interests in the assets of the Trust issued hereunder,
subject to the provisions of this Declaration, and, in consideration of the
mutual covenants contained herein and other good and valuable consideration, the
receipt of which is hereby acknowledged, the parties, intending to be legally
bound hereby, amend and restate in its entirety the Original Declaration and
agree as follows:
ARTICLE I
INTERPRETATION AND DEFINITIONS
Section 1.1. Definitions. Unless the context otherwise requires:
(a) capitalized terms used in this Declaration but not defined in the preamble
above or elsewhere herein have the respective meanings assigned to them in this
Section 1.1 or, if not defined in this Section 1.1 or elsewhere herein, in the
Indenture;
(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;
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(d) all references in this Declaration to Articles and Sections and Annexes and
Exhibits are to Articles and Sections of and Annexes and Exhibits to this
Declaration unless otherwise specified;
(e) a term defined in the Trust Indenture Act (as defined herein) has the same
meaning when used in this Declaration unless otherwise defined in this
Declaration or unless the context otherwise requires; and
(f) a reference to the singular includes the plural and vice versa.
"Acceleration Event of Default": has the meaning set forth in Section
5.01 of the Indenture.
"Additional Amounts": has the meaning set forth in Section 3.06 of the
Indenture.
"Administrative Action": has the meaning set forth in paragraph 4(a)
of Annex I.
"Administrators": means each of Donald R. Neel and Mark A. Isaac,
solely in such Person's capacity as Administrator of the Trust continued
hereunder and not in such Person's individual capacity, or such Administrator's
successor in interest in such capacity, or any successor appointed as herein
provided.
"Affiliate": has the same meaning as given to that term in Rule 405 of
the Securities Act or any successor rule thereunder.
"Authorized Officer": of a Person means any Person that is authorized
to bind such Person.
"Bankruptcy Event": means, with respect to any Person:
(a) a court having jurisdiction in the premises enters a decree or order for
relief in respect of such Person in an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
appoints a receiver, liquidator, assignee, custodian, trustee, sequestrator or
similar official of such Person or for any substantial part of its property, or
orders the winding-up or liquidation of its affairs, and such decree,
appointment or order remains unstayed and in effect for a period of 90
consecutive days; or
(b) such Person commences a voluntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, consents to the
entry of an order for relief in an involuntary case under any such law, or
consents to the appointment of or taking possession by a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of such
Person of any substantial part of its property, or makes any general assignment
for the benefit of creditors, or fails generally to pay its debts as they become
due.
"Business Day": means any day other than Saturday, Sunday or any other
day on which banking institutions in Wilmington, Delaware, New York City or
Evansville, Indiana are permitted or required by any applicable law or executive
order to close.
"Calculation Agent": has the meaning set forth in Section 1.01 of the
Indenture.
"Capital Securities": has the meaning set forth in Section 6.1(a).
"Capital Security Certificate": means a definitive Certificate
registered in the name of the Holder representing a Capital Security
substantially in the form of Exhibit A-1.
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"Capital Treatment Event": has the meaning set forth in paragraph 4(a)
of Annex I.
"Certificate": means any certificate evidencing Securities.
"Certificate of Trust": means the certificate of trust filed with the
Secretary of State of the State of Delaware with respect to the Trust, as
amended and restated from time to time.
"Clearstream": means Citibank, N.A., as operator of Clearstream
Banking, societe anonyme.
"Closing Date": has the meaning set forth in the Purchase Agreement.
"Code": means the Internal Revenue Code of 1986, as amended from time
to time, or any successor legislation.
"Commission": means the United States Securities and Exchange
Commission.
"Common Securities": has the meaning set forth in Section 6.1(a).
"Common Security Certificate": means a definitive Certificate
registered in the name of the Holder representing a Common Security
substantially in the form of Exhibit A-2.
"Company Indemnified Person": means (a) any Administrator; (b) any
Affiliate of any Administrator; (c) any officers, directors, shareholders,
members, partners, employees, representatives or agents of any Administrator; or
(d) any officer, employee or agent of the Trust or its Affiliates.
"Comparable Treasury Issue": has the meaning set forth in paragraph
4(a) of Annex I.
"Comparable Treasury Price": has the meaning set forth in paragraph
4(a) of Annex I.
"Corporate Trust Office": means the office of the Institutional
Trustee at which the corporate trust business of the Institutional Trustee
shall, at any particular time, be principally administered, which office shall
at all times be located in the United States and at the date of execution of
this Declaration is located at 919 North Market Street Suite 700, Wilmington, DE
19801, Attention: Corporate Trust Administration.
"Coupon Rate": has the meaning set forth in paragraph 2(a) of Annex I.
"Covered Person": means: (a) any Administrator, officer, director,
shareholder, partner, member, representative, employee or agent of (i) the Trust
or (ii) any of the Trust's Affiliates; and (b) any Holder of Securities.
"Debenture Issuer": means Fidelity Federal Bancorp, a savings and loan
holding company incorporated in Indiana, in its capacity as issuer of the
Debentures under the Indenture.
"Debenture Trustee": means Wells Fargo Bank, National Association, a
national banking association with its principal place of business in the State
of Delaware, not in its individual capacity but solely as trustee under the
Indenture until a successor is appointed thereunder, and thereafter means such
successor trustee.
"Debentures": means the Floating Rate Junior Subordinated Debt
Securities due 2034 to be issued by the Debenture Issuer under the Indenture.
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"Deferred Interest": means any interest on the Debentures that would
have been overdue and unpaid for more than one Distribution Payment Date but for
the imposition of an Extension Period, and the interest that shall accrue (to
the extent that the payment of such interest is legally enforceable) on such
interest at the Coupon Rate in effect for each such Extension Period, compounded
quarterly from the date on which such Deferred Interest would otherwise have
been due and payable until paid or made available for payment.
"Definitive Capital Securities": means any Capital Securities in
definitive form issued by the Trust.
"Delaware Trustee": has the meaning set forth in Section 4.2.
"Direct Action": has the meaning set forth in Section 2.8(e).
"Distribution": means a distribution payable to Holders of Securities
in accordance with Section 5.1.
"Distribution Payment Date": has the meaning set forth in paragraph
2(e) of Annex I.
"Distribution Period": has the meaning set forth in paragraph 2(a) of
Annex I.
"Euroclear": Euroclear Bank S.A./N.V. as operator and depository of
the Euroclear system.
"Event of Default": means the occurrence of an Indenture Event of
Default.
"Exchange Act": means the Securities Exchange Act of 1934, as amended
from time to time, or any successor legislation.
"Extension Period": has the meaning set forth in paragraph 2(e) of
Annex I.
"Federal Reserve": means the Board of Governors of the Federal Reserve
System.
"Fiduciary Indemnified Person": shall mean each of the Institutional
Trustee (including in its individual capacity), the Delaware Trustee (including
in its individual capacity), any Affiliate of the Institutional Trustee or the
Delaware Trustee, and any officers, directors, shareholders, members, partners,
employees, representatives, custodians, nominees or agents of the Institutional
Trustee or the Delaware Trustee.
"Fiscal Year": has the meaning set forth in Section 10.1
"Guarantee": means the Guarantee Agreement, dated as of December 16,
2004, of the Sponsor in respect of the Capital Securities.
"Holder": means a Person in whose name a Certificate representing a
Security is registered on the register maintained by or on behalf of the
Registrar, such Person being a beneficial owner within the meaning of the
Statutory Trust Act.
"Holders of 10% in liquidation amount of the Securities": means
Holders of outstanding Securities voting together as a single 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 and,
"Holders of not less than 10% in
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liquidation amount of the Securities" and "Holders of not less than 10% in
liquidation amount of the Capital Securities" shall have meaning correlative to
the foregoing.
"Holder of a Majority in liquidation amount of the Securities": means
Holders of outstanding Securities voting together as a single class who are the
record owners of more than 50% of the aggregate liquidation amount (including
the stated amount that would be paid on redemption, liquidation or otherwise,
plus accrued and unpaid Distributions to the date upon which the voting
percentages are determined) of all outstanding Securities of the relevant class,
and "Holders of a Majority in liquidation amount of the Capital Securities,"
"Holders in liquidation amount of the Common Securities" and "Holders of not
less than a Majority in liquidation amount of the Securities" shall have
meanings correlative to the foregoing.
"Indemnified Person": means a Company Indemnified Person or a
Fiduciary Indemnified Person.
"Indenture": means the Indenture, dated as of December 16, 2004, among
the Debenture Issuer and the Debenture Trustee, and any indenture supplemental
thereto pursuant to which the Debentures are to be issued.
"Indenture Event of Default": means an "Event of Default" as defined
in the Indenture.
"Initial Purchaser": has the meaning set forth in the Purchase
Agreement.
"Institutional Trustee": means the Trustee meeting the eligibility
requirements set forth in Section 4.3.
"Investment Company": means an investment company as defined in the
Investment Company Act.
"Investment Company Act": means the Investment Company Act of 1940, as
amended from time to time, or any successor legislation.
"Investment Company Event": has the meaning set forth in paragraph
4(a) of Annex I.
"Legal Action": has the meaning set forth in Section 2.8(e).
"LIBOR": means the London Interbank Offered Rate for U.S. Dollar
deposits in Europe as determined by the Calculation Agent according to paragraph
2(b) of Annex I.
"LIBOR Banking Day": has the meaning set forth in paragraph 2(b)(1) of
Annex I.
"LIBOR Business Day": has the meaning set forth in paragraph 2(b)(1)
of Annex I.
"LIBOR Determination Date": has the meaning set forth in paragraph
2(b)(1) of Annex I.
"Liquidation": has the meaning set forth in paragraph 3 of Annex I.
"Liquidation Distribution": has the meaning set forth in paragraph 3
of Annex I.
"Officers' Certificate": means, with respect to any Person, a
certificate signed by two Authorized Officers of such Person. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Declaration shall include:
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(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 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 to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"OTS": means the Office of Thrift Supervision.
"Paying Agent": has the meaning set forth in Section 6.2.
"Payment Amount": has the meaning set forth in Section 5.1.
"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.
"PORTAL": has the meaning set forth in Section 2.6(a)(i).
"Primary Treasury Dealer": has the meaning set forth in paragraph 4(a)
of Annex I.
"Property Account": has the meaning set forth in Section 2.8(c).
"Pro Rata": has the meaning set forth in paragraph 8 of Annex I.
"Purchase Agreement": means the Purchase Agreement relating to the
offering and sale of Capital Securities.
"QIB": means a "qualified institutional buyer" as defined under Rule
144A.
"Quorum": means a majority of the Administrators or, if there are only
two Administrators, both of them.
"Quotation Agent": has the meaning set forth in paragraph 4(a) of
Annex I.
"Redemption/Distribution Notice": has the meaning set forth in
paragraph 4(e) of Annex I.
"Redemption Price": has the meaning set forth in paragraph 4(a) of
Annex I.
"Reference Treasury Dealer": has the meaning set forth in paragraph
4(a) of Annex I.
"Reference Treasury Dealer Quotations": has the meaning set forth in
paragraph 4(a) of Annex I.
"Registrar": has the meaning set forth in Section 6.2.
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"Regulation S Transferee": means a non-U.S. Person acquiring Capital
Securities in accordance with Regulation S under the Securities Act.
"Relevant Trustee": has the meaning set forth in Section 4.7(a).
"Remaining Life": has the meaning set forth in paragraph 4(a) of Annex
I.
"Responsible Officer": means, with respect to the Institutional
Trustee, any officer within the Corporate Trust Office of the Institutional
Trustee with direct responsibility for the administration of this Declaration,
including any vice-president, any assistant vice-president, any secretary, any
assistant secretary, the treasurer, any assistant treasurer, any trust officer
or other officer of the Corporate Trust Office of the Institutional Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of that
officer's knowledge of and familiarity with the particular subject.
"Restricted Securities Legend": has the meaning set forth in Section
8.2(c).
"Rule 144A": means Rule 144A under the Securities Act.
"Rule 3a-5": means Rule 3a-5 under the Investment Company Act.
"Rule 3a-7": means Rule 3a-7 under the Investment Company Act.
"Securities": means the Common Securities and the Capital Securities.
"Securities Act": means the Securities Act of 1933, as amended from
time to time, or any successor legislation.
"Sponsor": means Fidelity Federal Bancorp, a savings and loan holding
company that is a U.S. Person incorporated in Indiana, or any successor entity
in a merger, consolidation or amalgamation that is a U.S. Person, in its
capacity as sponsor of the Trust.
"Statutory 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.
"Successor Delaware Trustee": has the meaning set forth in Section
4.7(e).
"Successor Entity": has the meaning set forth in Section 2.15(b).
"Successor Institutional Trustee": has the meaning set forth in
Section 4.7(b).
"Successor Securities": has the meaning set forth in Section 2.15(b).
"Super Majority": has the meaning set forth in paragraph 5(b) of Annex
I.
"Tax Event": has the meaning set forth in paragraph 4(a) of Annex I.
"Transfer Agent": has the meaning set forth in Section 6.2.
"Treasury Rate": has the meaning set forth in paragraph 4(a) of Annex
I.
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"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 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 in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
"Trust Property": means (a) the Debentures, (b) any cash on deposit
in, or owing to, the Property Account and (c) all proceeds and rights in respect
of the foregoing and any other property and assets for the time being held or
deemed to be held by the Institutional Trustee pursuant to the trusts of this
Declaration.
"U.S. Person": means a United States Person as defined in Section
7701(a)(30) of the Code.
ARTICLE II
ORGANIZATION
Section 2.1. Name. The Trust is named "Fidelity Federal Bancorp Statutory Trust
I-2004," as such name may be modified from time to time by the Administrators
following written notice to the Institutional Trustee and the Holders of the
Securities. The Trust's activities may be conducted under the name of the Trust
or any other name deemed advisable by the Administrators.
Section 2.2. Office. The address of the principal office of the Trust, which
shall be in a state of the United States or the District of Columbia, is 18 N.W.
Fourth Street, Evansville, IN 47708. On ten Business Days' written notice to the
Institutional Trustee and the Holders of the Securities, the Administrators may
designate another principal office, which shall be in a state of the United
States or the District of Columbia.
Section 2.3. Purpose. The exclusive purposes and functions of the Trust are (a)
to issue and sell the Securities representing undivided beneficial interests in
the assets of the Trust, (b) to invest the gross proceeds from such sale in the
Debentures and (c) except as otherwise limited herein, to engage in only those
other activities incidental thereto that are deemed necessary or advisable by
the Institutional Trustee, including, without limitation, those activities
specified in this Declaration. The Trust shall not borrow money, issue debt or
reinvest proceeds derived from investments, pledge any of its assets, or
otherwise undertake (or permit to be undertaken) any activity that would cause
the Trust not to be classified for United States federal income tax purposes as
a grantor trust.
Section 2.4. Authority. Except as specifically provided in this Declaration, the
Institutional Trustee shall have exclusive and complete authority to carry out
the purposes of the Trust. An action taken by a Trustee on behalf of the Trust
and in accordance with such Trustee's 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. The Administrators shall have only those ministerial duties set
forth herein with respect
8
to accomplishing the purposes of the Trust and are not intended to be trustees
or fiduciaries with respect to the Trust or the Holders. The Institutional
Trustee shall have the right, but shall not be obligated except as provided in
Section 2.6, to perform those duties assigned to the Administrators.
Section 2.5. Title to Property of the Trust. Except as provided in Section 2.8
with respect to the Debentures and the Property Account or as otherwise provided
in this Declaration, legal title to all assets of the Trust shall be vested in
the Trust. The Holders shall not have legal title to any part of the assets of
the Trust, but shall have an undivided beneficial interest in the assets of the
Trust.
Section 2.6. Powers and Duties of the Trustees and the Administrators.
(a) The Trustees and the Administrators shall conduct the affairs of the Trust
in accordance with the terms of this Declaration. Subject to the limitations set
forth in paragraph (b) of this Section, and in accordance with the following
provisions (i) and (ii), the Administrators and, at the direction of the
Administrators, the Trustees, shall have the authority to enter into all
transactions and agreements determined by the Administrators to be appropriate
in exercising the authority, express or implied, otherwise granted to the
Trustees or the Administrators, as the case may be, under this Declaration, and
to perform all acts in furtherance thereof, including without limitation, the
following:
(i) Each Administrator shall have the power, duty and
authority, and is hereby authorized, to act on behalf of the Trust
with respect to the following matters:
(A) the issuance and sale of the Securities;
(B) to cause the Trust to enter into, and to
execute, deliver and perform on behalf of the Trust, such
agreements as may be necessary or desirable in connection
with the purposes and function of the Trust, including
agreements with the Paying Agent, a Debenture subscription
agreement between the Trust and the Sponsor and a Common
Securities subscription agreement between the Trust and the
Sponsor;
(C) ensuring compliance with the Securities Act
and applicable state securities or blue sky laws;
(D) assisting with providing book-entry clearance
for the Capital Securities pursuant to Section 8.2(e) and if
and at such time determined solely by the Sponsor at the
request of the Holders, assisting in the designation of the
Capital Securities for trading in the Private Offering,
Resales and Trading through the Automatic Linkages
("PORTAL") system if available;
(E) the sending of notices (other than notices of
default) and other information regarding the Securities and
the Debentures to the Holders in accordance with this
Declaration, including notice of any notice received from
the Debenture Issuer of its election to defer payments of
interest on the Debentures by extending the interest payment
period under the Indenture;
(F) the appointment of a Paying Agent, Transfer
Agent and Registrar in accordance with this Declaration;
(G) execution and delivery of the Securities in
accordance with this Declaration;
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(H) execution and delivery of closing certificates
pursuant to the Purchase Agreement and the application for a
taxpayer identification number;
(I) unless otherwise determined by the Holders of
a Majority in liquidation amount of the Securities or as
otherwise required by the Statutory Trust Act, to execute on
behalf of the Trust (either acting alone or together with
any or all of the Administrators) any documents that the
Administrators have the power to execute pursuant to this
Declaration;
(J) the taking of any action incidental to the
foregoing as the Sponsor or an Administrator may from time
to time determine is necessary or advisable to give effect
to the terms of this Declaration for the benefit of the
Holders (without consideration of the effect of any such
action on any particular Holder);
(K) to establish a record date with respect to all
actions to be taken hereunder that require a record date be
established, including Distributions, voting rights,
redemptions and exchanges, and to issue relevant notices to
the Holders of Capital Securities and Holders of Common
Securities as to such actions and applicable record dates;
(L) to duly prepare and file on behalf of the
Trust all applicable tax returns and tax information reports
that are required to be filed with respect to the Trust;
(M) to negotiate the terms of, and the execution
and delivery of, the Purchase Agreement and any subscription
agreements or other agreements providing for the sale of the
Capital Securities or resale by the Initial Purchaser and
other related agreements;
(N) to employ or otherwise engage employees,
agents (who may be designated as officers with titles),
managers, contractors, advisors, attorneys and consultants
and pay reasonable compensation for such services;
(O) to incur expenses that are necessary or
incidental to carry out any of the purposes of the Trust;
(P) to give the certificate required by Section
314(a)(4) of the Trust Indenture Act to the Institutional
Trustee, which certificate may be executed by an
Administrator; and
(Q) 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 trust under the laws of each jurisdiction
(other than the State of Delaware) in which such existence
is necessary to protect the limited liability of the Holders
of the Capital Securities or to enable the Trust to effect
the purposes for which the Trust was created.
(ii) As among the Trustees and the Administrators, the Institutional
Trustee shall have the power, duty and authority, and is hereby authorized, to
act on behalf of the Trust with respect to the following matters:
(A) the establishment of the Property Account;
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(B) the receipt of the Debentures;
(C) the collection of interest, principal and any other
payments made in respect of the Debentures in the Property Account;
(D) the distribution through the Paying Agent of amounts
owed to the Holders in respect of the Securities;
(E) the exercise of all of the rights, powers and privileges
of a holder of the Debentures;
(F) the sending of notices of default and other information
regarding the Securities and the Debentures to the Holders in
accordance with this Declaration;
(G) the distribution of the Trust Property in accordance
with the terms of this Declaration;
(H) to the extent provided in this Declaration, the winding
up of the affairs of and liquidation of the Trust and the preparation,
execution and filing of the certificate of cancellation with the
Secretary of State of the State of Delaware;
(I) after any Event of Default (of which the Institutional
Trustee has knowledge (as provided in Section 2.10(m) hereof))
(provided, that such Event of Default is not by or with respect to the
Institutional Trustee), the taking of any action incidental to the
foregoing as the Institutional Trustee may from time to time determine
is necessary or advisable to give effect to the terms of this
Declaration and protect and conserve the Trust Property for the
benefit of the Holders (without consideration of the effect of any
such action on any particular Holder);
(J) 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 trust
under the laws of the State of Delaware to protect the limited
liability of the Holders of the Capital Securities or to enable the
Trust to effect the purposes for which the Trust was created; and
(K) to undertake any actions set forth in Section 317(a) of
the Trust Indenture Act.
(iii) The Institutional Trustee shall have the power and authority,
and is hereby authorized, to act on behalf of the Trust with respect to any of
the duties, liabilities, powers or the authority of the Administrators set forth
in Section 2.6(a)(i)(E) and (F) herein but shall not have a duty to do any such
act unless specifically requested to do so in writing by the Sponsor, and shall
then be fully protected in acting pursuant to such written request; and in the
event of a conflict between the action of the Administrators and the action of
the Institutional Trustee, the action of the Institutional Trustee shall
prevail.
(b) So long as this Declaration remains in effect, the Trust (or the Trustees or
Administrators acting on behalf of the Trust) shall not undertake any business,
activities or transaction except as expressly provided herein or contemplated
hereby. In particular, neither the Trustees nor the Administrators may cause the
Trust to (i) acquire any investments or engage in any activities not authorized
by this Declaration; (ii) sell, assign, transfer, exchange, mortgage, pledge,
set-off or otherwise
11
dispose of any of the Trust Property or interests therein, including to Holders,
except as expressly provided herein; (iii) take any action that would cause (or
in the case of the Institutional Trustee, to the actual knowledge of a
Responsible Officer would cause) the Trust to fail or cease to qualify as a
"grantor trust" for United States federal income tax purposes; (iv) incur any
indebtedness for borrowed money or issue any other debt; or (v) take or consent
to any action that would result in the placement of a lien on any of the Trust
Property. The Institutional Trustee shall, at the sole cost and expense of the
Trust subject to reimbursement under Section 9.6(a), defend all claims and
demands of all Persons at any time claiming any lien on any of the Trust
Property adverse to the interest of the Trust or the Holders in their capacity
as Holders.
(c) In connection with the issuance and sale of the Capital Securities, the
Sponsor shall have the right and responsibility to assist the Trust with respect
to, or effect on behalf of the Trust, the following (and any actions taken by
the Sponsor in furtherance of the following prior to the date of this
Declaration are hereby ratified and confirmed in all respects):
(i) the taking of any action necessary to obtain an exemption from the
Securities Act;
(ii) the determination of the States in which to take appropriate
action to qualify or register for sale all or part of the Capital Securities and
the determination of any and all such acts, other than actions which must be
taken by or on behalf of the Trust, and the advisement of and direction to the
Trustees of actions they must take on behalf of the Trust, and the preparation
for execution and filing of any documents to be executed and filed by the Trust
or on behalf of the Trust, as the Sponsor deems necessary or advisable in order
to comply with the applicable laws of any such States in connection with the
sale of the Capital Securities; and
(iii) the taking of any other actions necessary or desirable to carry
out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators, the
Institutional Trustee and the Holders of a Majority in liquidation amount of the
Common Securities are authorized and directed to conduct the affairs of the
Trust and to operate the Trust so that (i) the Trust will not be deemed to be an
"investment company" required to be registered under the Investment Company Act
(in the case of the Institutional Trustee, to the actual knowledge of a
Responsible Officer); (ii) the Trust will not fail to be classified as a grantor
trust for United States federal income tax purposes (in the case of the
Institutional Trustee, to the actual knowledge of a Responsible Officer); and
(iii) the Trust will not take any action inconsistent with the treatment of the
Debentures as indebtedness of the Debenture Issuer for United States federal
income tax purposes (in the case of the Institutional Trustee, to the actual
knowledge of a Responsible Officer). In this connection, the Institutional
Trustee, the Administrators and the Holders of a Majority in liquidation amount
of the Common Securities are authorized to take any action, not inconsistent
with applicable laws or this Declaration, as amended from time to time, that
each of the Institutional Trustee, the Administrators and such Holders determine
in their discretion to be necessary or desirable for such purposes, even if such
action adversely affects the interests of the Holders of the Capital Securities.
(e) All expenses incurred by the Administrators or the Trustees pursuant to this
Section 2.6 shall be reimbursed by the Sponsor, and the Trustees shall have no
obligations with respect to such expenses.
(f) The assets of the Trust shall consist of the Trust Property.
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(g) Legal title to all Trust Property shall be vested at all times in the
Institutional Trustee (in its capacity as such) and shall be held and
administered by the Institutional Trustee for the benefit of the Trust in
accordance with this Declaration.
(h) If the Institutional Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Declaration and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Institutional Trustee or to such Holder, then and in every such case the
Sponsor, the Institutional Trustee and the Holders shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Institutional Trustee and the Holders shall continue as though no such
proceeding had been instituted.
Section 2.7. Prohibition of Actions by the Trust and the Trustees.
The Trust shall not, and the Institutional Trustee and the
Administrators shall not, and the Administrators shall cause the Trust not to,
engage in any activity other than as required or authorized by this Declaration.
In particular, the Trust shall not, and the Institutional Trustee and the
Administrators shall not cause the Trust to:
(a) invest any proceeds received by the Trust from holding the Debentures, but
shall distribute all such proceeds to Holders of the Securities pursuant to the
terms of this Declaration and of the Securities;
(b) acquire any assets other than as expressly provided herein;
(c) possess Trust Property for other than a Trust purpose;
(d) make any loans or incur any indebtedness other than loans represented by the
Debentures;
(e) possess any power or otherwise act in such a way as to vary the Trust
Property or the terms of the Securities;
(f) issue any securities or other evidences of beneficial ownership of, or
beneficial interest in, the Trust other than the Securities; or
(g) other than as provided in this Declaration (including Annex I), (i) direct
the time, method and place of exercising any trust or power conferred upon the
Debenture Trustee with respect to the Debentures, (ii) waive any past default
that is waivable under the Indenture, (iii) exercise any right to rescind or
annul any declaration that the principal of all the Debentures shall be due and
payable, or (iv) consent to any amendment, modification or termination of the
Indenture or the Debentures where such consent shall be required unless the
Trust shall have received a written opinion of counsel experienced in such
matters to the effect that such amendment, modification or termination will not
cause the Trust to cease to be classified as a grantor trust for United States
federal income tax purposes.
Section 2.8. Powers and Duties of the Institutional Trustee.
(a) The legal title to the Debentures shall be owned by and held of record in
the name of the Institutional Trustee in trust for the benefit of the Trust. The
right, title and interest of the Institutional Trustee to the Debentures shall
vest automatically in each Person who may hereafter be appointed as
13
Institutional Trustee in accordance with Section 4.7. Such vesting and cessation
of title shall be effective whether or not conveyancing documents with regard to
the Debentures have been executed and delivered.
(b) The Institutional Trustee shall not transfer its right, title and interest
in the Debentures to the Administrators or to the Delaware Trustee.
(c) The Institutional Trustee shall:
(i) establish and maintain a segregated non-interest bearing trust
account (the "Property Account") in the United States (as defined in Treasury
Regulations Section 301.7701-7), in the name of and under the exclusive control
of the Institutional Trustee, and maintained in the Institutional Trustee's
trust department, on behalf of the Holders of the Securities and, upon the
receipt of payments of funds made in respect of the Debentures held by the
Institutional Trustee, deposit such funds into the Property Account and make
payments to the Holders of the Capital Securities and Holders of the Common
Securities from the Property Account in accordance with Section 5.1. Funds in
the Property Account shall be held uninvested until disbursed in accordance with
this Declaration;
(ii) engage in such ministerial activities as shall be necessary or
appropriate to effect the redemption of the Capital Securities and the Common
Securities to the extent the Debentures are redeemed or mature; and
(iii) upon written notice of distribution issued by the Administrators
in accordance with the terms of the Securities, engage in such ministerial
activities as shall be necessary or appropriate to effect the distribution of
the Debentures to Holders of Securities upon the occurrence of certain
circumstances pursuant to the terms of the Securities.
(d) The Institutional Trustee shall take all actions and perform such duties as
may be specifically required of the Institutional Trustee pursuant to the terms
of the Securities.
(e) The Institutional Trustee may bring or defend, pay, collect, compromise,
arbitrate, resort to legal action with respect to, or otherwise adjust claims or
demands of or against, the Trust (a "Legal Action") which arise out of or in
connection with an Event of Default of which a Responsible Officer of the
Institutional Trustee has actual knowledge or the Institutional Trustee's duties
and obligations under this Declaration or the Trust Indenture Act; provided,
however, that if an Event of Default has occurred and is continuing and such
event is attributable to the failure of the Debenture Issuer to pay interest or
principal on the Debentures on the date such interest or principal is otherwise
payable (or in the case of redemption, on the redemption date), then a Holder of
the Capital Securities may directly institute a proceeding for enforcement of
payment to such Holder of the principal of or interest on the Debentures having
a principal amount equal to the aggregate liquidation amount of the Capital
Securities of such Holder (a "Direct Action") on or after the respective due
date specified in the Debentures. In connection with such Direct Action, the
rights of the Holders of the Common Securities will be subrogated to the rights
of such Holder of the Capital Securities to the extent of any payment made by
the Debenture Issuer to such Holder of the Capital Securities in such Direct
Action; provided, however, that a Holder of the Common Securities may exercise
such right of subrogation only if no Event of Default with respect to the
Capital Securities has occurred and is continuing.
(f) The Institutional Trustee shall continue to serve as a Trustee until either:
14
(i) the Trust has been completely liquidated and the proceeds of the
liquidation distributed to the Holders of the Securities pursuant to the terms
of the Securities and this Declaration (including Annex I); or
(ii) a Successor Institutional Trustee has been appointed and has
accepted that appointment in accordance with Section 4.7.
(g) The Institutional Trustee shall have the legal power to exercise all of the
rights, powers and privileges of a holder of the Debentures under the Indenture
and, if an Event of Default occurs and is continuing, the Institutional Trustee
may, for the benefit of Holders of the Securities, enforce its rights as holder
of the Debentures subject to the rights of the Holders pursuant to this
Declaration (including Annex I) and the terms of the Securities.
(h) The Institutional Trustee must exercise the powers set forth in this Section
2.8 in a manner that is consistent with the purposes and functions of the Trust
set out in Section 2.3, and the Institutional Trustee shall not take any action
that is inconsistent with the purposes and functions of the Trust set out in
Section 2.3.
Section 2.9. Certain Duties and Responsibilities of the Trustees and the
Administrators.
(a) The Institutional Trustee, before the occurrence of any Event of Default (of
which the Institutional Trustee has knowledge (as provided in Section 2.10(m)
hereof)) and after the curing of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Declaration and no implied covenants shall be read into this Declaration
against the Institutional Trustee. In case an Event of Default (of which the
Institutional Trustee has knowledge (as provided in Section 2.10(m) hereof)),
has occurred (that has not been cured or waived pursuant to Section 6.7), the
Institutional Trustee shall exercise such of the rights and powers vested in it
by this Declaration, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the circumstances in
the conduct of his or her own affairs.
(b) The duties and responsibilities of the Trustees and the Administrators shall
be as provided by this Declaration and, in the case of the Institutional
Trustee, by the Trust Indenture Act. Notwithstanding the foregoing, no provision
of this Declaration shall require any Trustee or Administrator to expend or risk
its own funds or otherwise incur any financial liability in the performance of
any of its duties hereunder, or in the exercise of any of its rights or powers,
if it shall have reasonable grounds for believing that repayment of such funds
or adequate indemnity satisfactory to it against such risk or liability is not
reasonably assured to it. Whether or not therein expressly so provided, every
provision of this Declaration relating to the conduct or affecting the liability
of or affording protection to the Trustees or the Administrators shall be
subject to the provisions of this Article. Nothing in this Declaration shall be
construed to release a Trustee from liability for its own negligent action, its
own negligent failure to act, or its own willful misconduct. Nothing in this
Declaration shall be construed to release an Administrator from liability for
its own gross negligent action, its own gross negligent failure to act, or its
own willful misconduct. To the extent that, at law or in equity, a Trustee or an
Administrator has duties and liabilities relating to the Trust or to the
Holders, such Trustee or Administrator shall not be liable to the Trust or to
any Holder for such Trustee's or Administrator's good faith reliance on the
provisions of this Declaration. The provisions of this Declaration, to the
extent that they restrict the duties and liabilities of the Administrators or
the Trustees otherwise existing at law or in equity, are agreed by the Sponsor
and the Holders to replace such other duties and liabilities of the
Administrators or the Trustees.
15
(c) All payments made by the Institutional Trustee or a Paying Agent in respect
of the Securities shall be made only from the revenue and proceeds from the
Trust Property and only to the extent that there shall be sufficient revenue or
proceeds from the Trust Property to enable the Institutional Trustee or a Paying
Agent to make payments in accordance with the terms hereof. Each Holder, by its
acceptance of a Security, agrees that it will look solely to the revenue and
proceeds from the Trust Property to the extent legally available for
distribution to it as herein provided and that the Trustees and the
Administrators are not personally liable to it for any amount distributable in
respect of any Security or for any other liability in respect of any Security.
This Section 2.9(c) does not limit the liability of the Trustees expressly set
forth elsewhere in this Declaration or, in the case of the Institutional
Trustee, in the Trust Indenture Act.
(d) No provision of this Declaration shall be construed to relieve the
Institutional Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct with respect to matters
that are within the authority of the Institutional Trustee under this
Declaration, except that:
(i) the Institutional Trustee shall not be liable for any error or
judgment made in good faith by an Authorized Officer of the Institutional
Trustee, unless it shall be proved that the Institutional Trustee was negligent
in ascertaining the pertinent facts;
(ii) the Institutional Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of not less than a Majority in liquidation amount of
the Capital Securities or the Common Securities, as applicable, relating to the
time, method and place of conducting any proceeding for any remedy available to
the Institutional Trustee, or exercising any trust or power conferred upon the
Institutional Trustee under this Declaration;
(iii) the Institutional Trustee's sole duty with respect to the
custody, 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
Institutional Trustee deals with similar property for its own account, subject
to the protections and limitations on liability afforded to the Institutional
Trustee under this Declaration and the Trust Indenture Act;
(iv) the Institutional Trustee shall not be liable for any interest on
any money received by it except as it may otherwise agree in writing with the
Sponsor; and money held by the Institutional Trustee need not be segregated from
other funds held by it except in relation to the Property Account maintained by
the Institutional Trustee pursuant to Section 2.8(c)(i) and except to the extent
otherwise required by law; and
(v) the Institutional Trustee shall not be responsible for monitoring
the compliance by the Administrators or the Sponsor with their respective duties
under this Declaration, nor shall the Institutional Trustee be liable for any
default or misconduct of the Administrators or the Sponsor.
Section 2.10. Certain Rights of Institutional Trustee. Subject to the provisions
of Section 2.9:
(a) the Institutional Trustee may conclusively rely and shall fully be protected
in acting or refraining from acting in good faith upon any resolution, written
opinion of counsel, certificate, written representation of a Holder or
transferee, certificate of auditors or any other certificate, statement,
16
instrument, opinion, report, notice, request, direction, consent, order,
appraisal, bond, debenture, note, other evidence of indebtedness or other paper
or document believed by it to be genuine and to have been signed, sent or
presented by the proper party or parties;
(b) if (i) in performing its duties under this Declaration, the Institutional
Trustee is required to decide between alternative courses of action, (ii) in
construing any of the provisions of this Declaration, the Institutional Trustee
finds the same ambiguous or inconsistent with any other provisions contained
herein, or (iii) the Institutional Trustee is unsure of the application of any
provision of this Declaration, then, except as to any matter as to which the
Holders of Capital Securities are entitled to vote under the terms of this
Declaration, the Institutional Trustee may deliver a notice to the Sponsor
requesting the Sponsor's opinion as to the course of action to be taken and the
Institutional Trustee shall take such action, or refrain from taking such
action, as the Institutional Trustee in its sole discretion shall deem advisable
and in the best interests of the Holders, in which event the Institutional
Trustee shall have no liability except for its own negligence or willful
misconduct;
(c) any direction or act of the Sponsor or the Administrators contemplated by
this Declaration shall be sufficiently evidenced by an Officers' Certificate;
(d) whenever in the administration of this Declaration, the Institutional
Trustee shall deem it desirable that a matter be proved or established before
undertaking, suffering or omitting any action hereunder, the Institutional
Trustee (unless other evidence is herein specifically prescribed) may, 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 Administrators;
(e) the Institutional Trustee shall have no duty to see to any recording, filing
or registration of any instrument (including any financing or continuation
statement or any filing under tax or securities laws) or any rerecording,
refiling or reregistration thereof;
(f) the Institutional Trustee may consult with counsel of its selection (which
counsel may be counsel to the Sponsor or any of its Affiliates) and the advice
of such counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon and in accordance with such advice; the Institutional
Trustee shall have the right at any time to seek instructions concerning the
administration of this Declaration from any court of competent jurisdiction;
(g) the Institutional Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Declaration at the request or
direction of any of the Holders pursuant to this Declaration, unless such
Holders shall have offered to the Institutional Trustee security or indemnity
reasonably satisfactory to it against the costs, expenses and liabilities which
might be incurred by it in compliance with such request or direction; provided,
that nothing contained in this Section 2.10(g) shall be taken to relieve the
Institutional Trustee, upon the occurrence of an Event of Default (of which the
Institutional Trustee has knowledge (as provided in Section 2.10(m) hereof))
that has not been cured or waived, of its obligation to exercise the rights and
powers vested in it by this Declaration;
(h) the Institutional Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond,
debenture, note or other evidence of indebtedness or other paper or document,
unless requested in writing to do so by one or more Holders, but the
Institutional Trustee may make such further inquiry or investigation into such
facts or matters as it may see fit;
17
(i) the Institutional Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through its agents or
attorneys and the Institutional Trustee shall not be responsible for any
misconduct or negligence on the part of, or for the supervision of, any such
agent or attorney appointed with due care by it hereunder;
(j) whenever in the administration of this Declaration the Institutional Trustee
shall deem it desirable to receive instructions with respect to enforcing any
remedy or right or taking any other action hereunder, the Institutional Trustee
(i) may request instructions from the Holders of the Common Securities and the
Capital Securities, which instructions may be given only by the Holders of the
same proportion in liquidation amount of the Common Securities and the Capital
Securities as would be entitled to direct the Institutional Trustee under the
terms of the Common Securities and the Capital Securities in respect of such
remedy, right or action, (ii) may refrain from enforcing such remedy or right or
taking such other action until such instructions are received, and (iii) shall
be fully protected in acting in accordance with such instructions;
(k) except as otherwise expressly provided in this Declaration, the
Institutional Trustee shall not be under any obligation to take any action that
is discretionary under the provisions of this Declaration;
(l) when the Institutional Trustee incurs expenses or renders services in
connection with a Bankruptcy Event, such expenses (including the fees and
expenses of its counsel) and the compensation for such services are intended to
constitute expenses of administration under any bankruptcy law or law relating
to creditors rights generally;
(m) the Institutional Trustee shall not be charged with knowledge of an Event of
Default unless a Responsible Officer of the Institutional Trustee has actual
knowledge of such event or the Institutional Trustee receives written notice of
such event from any Holder, except with respect to an Event of Default pursuant
to Sections 5.01(d) or 5.01(e) of the Indenture (other than an Event of Default
resulting from the default in the payment of Additional Amounts or premium, if
any, if the Institutional Trustee does not have actual knowledge or written
notice that such payment is due and payable), of which the Institutional Trustee
shall be deemed to have knowledge;
(n) any action taken by the Institutional Trustee or its agents hereunder shall
bind the Trust and the Holders of the Securities, and the signature of the
Institutional Trustee or its agents alone shall be sufficient and effective to
perform any such action and no third party shall be required to inquire as to
the authority of the Institutional Trustee to so act or as to its compliance
with any of the terms and provisions of this Declaration, both of which shall be
conclusively evidenced by the Institutional Trustee or its agent taking such
action; and
(o) no provision of this Declaration shall be deemed to impose any duty or
obligation on the Institutional Trustee to perform any act or acts or exercise
any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which the Institutional Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Institutional
Trustee shall be construed to be a duty.
Section 2.11. Delaware Trustee. Notwithstanding any other provision of this
Declaration other than Section 4.2, the Delaware Trustee shall not be entitled
to exercise any powers, nor shall the Delaware Trustee have any of the duties
and responsibilities of any of the Trustees or the Administrators described in
this Declaration (except as may be required under the Statutory Trust Act).
Except as set
18
forth in Section 4.2, the Delaware Trustee shall be a Trustee for the sole and
limited purpose of fulfilling the requirements of Section 3807 of the Statutory
Trust Act.
Section 2.12. Execution of Documents. Unless otherwise determined in writing by
the Institutional Trustee, and except as otherwise required by the Statutory
Trust Act, the Institutional Trustee, or any one or more of the Administrators,
as the case may be, is authorized to execute and deliver on behalf of the Trust
any documents, agreements, instruments or certificates that the Trustees or the
Administrators, as the case may be, have the power and authority to execute
pursuant to Section 2.6.
Section 2.13. 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
Debentures or the Securities.
Section 2.14. Duration of Trust. The Trust, unless dissolved pursuant to the
provisions of Article VII hereof, shall have existence for thirty-five (35)
years from December 16, 2004.
Section 2.15. 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 corporation or other Person, except as
described in this Section 2.15 and except with respect to the distribution of
Debentures to Holders of Securities pursuant to Section 7.1(a)(iv) of the
Declaration or Section 4 of Annex I.
(b) The Trust may, with the consent of the Administrators (which consent will
not be unreasonably withheld) and without the consent of the Institutional
Trustee, the Delaware Trustee or the Holders of the Capital Securities,
consolidate, amalgamate, merge with or into, or be replaced by, or convey,
transfer or lease its properties and assets as an entirety or substantially as
an entirety to a trust organized as such under the laws of any state; provided,
that:
(i) if the Trust is not the survivor, such successor entity (the
"Successor Entity") either:
(A) expressly assumes all of the obligations of the Trust
under the Securities; or
(B) substitutes for the Securities other securities having
substantially the same terms as the Securities (the "Successor
Securities") so that the Successor Securities rank the same as the
Securities rank with respect to Distributions and payments upon
Liquidation, redemption and otherwise;
(ii) the Sponsor expressly appoints, as the holder of the Debentures,
a trustee of the Successor Entity that possesses the same powers and duties as
the Institutional Trustee;
(iii) the Capital Securities or any Successor Securities (excluding
any securities substituted for the Common Securities) are listed or quoted, or
any Successor Securities will be listed or quoted upon notification of issuance,
on any national securities exchange or with another organization on which the
Capital Securities are then listed or quoted, if any;
19
(iv) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not cause the Capital Securities (including
any Successor Securities) to be downgraded by any nationally recognized
statistical rating organization, if the Capital Securities are then rated;
(v) such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease does not adversely affect the rights, preferences and
privileges of the Holders of the Securities (including any Successor Securities)
in any material respect (other than with respect to any dilution of such
Holders' interests in the Successor Entity as a result of such merger,
consolidation, amalgamation or replacement);
(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 Trust has received a written opinion of a
nationally recognized independent counsel to the Trust experienced in such
matters to the effect that:
(A) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights,
preferences and privileges of the Holders of the Securities (including
any Successor Securities) in any material respect (other than with
respect to any dilution of the Holders' interests in the Successor
Entity);
(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,
replacement, conveyance, transfer or lease, the Trust (or the
Successor Entity) will continue to be classified as a grantor trust
for United States federal income tax purposes;
(viii) the Sponsor guarantees the obligations of such Successor Entity
under the Successor Securities to the same extent provided by the Guarantee, the
Debentures and this Declaration; and
(ix) prior to such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease, the Institutional Trustee shall have received an
Officers' Certificate of the Administrators and an opinion of counsel, each to
the effect that all conditions precedent of this paragraph (b) to such
transaction have been satisfied.
(c) Notwithstanding Section 2.15(b), the Trust shall not, except with the
consent of Holders of 100% in liquidation amount of the Securities, consolidate,
amalgamate, merge with or into, or be replaced by, or convey, transfer or lease
its properties and assets as an entirety or substantially as an entirety to, any
other Person or permit any other Person to consolidate, amalgamate, merge 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.
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ARTICLE III
SPONSOR
Section 3.1. Sponsor's Purchase of Common Securities. On the Closing Date, the
Sponsor will purchase all of the Common Securities issued by the Trust, in an
amount at least equal to 3% of the capital of the Trust, at the same time as the
Capital Securities are sold.
Section 3.2. Responsibilities of the Sponsor. In connection with the issue and
sale of the Capital Securities, the Sponsor shall have the exclusive right and
responsibility and sole decision to engage in, or direct the Administrators to
engage in, the following activities:
(a) determine the States in which to take appropriate action to qualify or
register for sale all or part of the Capital Securities and doing any and all
such acts, other than actions which must be taken by the Trust, and advising the
Trust of actions it must take, and preparing 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;
(b) preparing for filing and requesting the Administrators to cause the filing
by the Trust, as may be appropriate, of an application to the PORTAL system, for
listing or quotation upon notice of issuance of any Capital Securities, as
requested by the Holders of not less than a Majority in liquidation amount of
the Capital Securities; and
(c) negotiate the terms of, and the execution and delivery, on behalf of the
Trust, of the Purchase Agreement and any subscription agreements or other
agreements providing for the sale of the Capital Securities or resale by the
Initial Purchaser and other related agreements.
ARTICLE IV
TRUSTEES AND ADMINISTRATORS
Section 4.1. Number of Trustees. The number of Trustees initially shall be two,
and:
(a) at any time before the issuance of any Securities, the Sponsor may, by
written instrument, increase or decrease the number of Trustees; and
(b) after the issuance of any Securities, the number of Trustees may be
increased or decreased by vote of the Holders of a Majority in liquidation
amount of the Common Securities voting as a class at a meeting of the Holders of
the Common Securities; provided, however, that there shall be a Delaware Trustee
if required by Section 4.2; and there shall always be one Trustee who shall be
the Institutional Trustee, and such Trustee may also serve as Delaware Trustee
if it meets the applicable requirements, in which case Section 2.11 shall have
no application to such entity in its capacity as Institutional Trustee.
Section 4.2. Delaware Trustee. If required by the Statutory Trust Act, one
Trustee (the "Delaware Trustee") shall be:
(a) a natural person who is a resident of the State of Delaware; or
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(b) if not a natural person, an entity which is organized under the laws of the
United States or any state thereof or the District of Columbia, has its
principal place of business in the State of Delaware, and otherwise meets the
requirements of applicable law, including Section 3807 of the Statutory Trust
Act.
Section 4.3. Institutional Trustee; Eligibility.
(a) There shall at all times be one Trustee that shall act as Institutional
Trustee which shall:
(i) not be an Affiliate of the Sponsor;
(ii) not offer or provide credit or credit enhancement to the Trust;
and
(iii) be a banking corporation or national association organized and
doing business under the laws of the United States of America or any state
thereof or of the District of Columbia and authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus of at
least fifty million U.S. dollars ($50,000,000), and subject to supervision or
examination by federal, state or District of Columbia authority. If such
corporation or national association publishes reports of condition at least
annually, pursuant to law or to the requirements of the supervising or examining
authority referred to above, then for the purposes of this Section 4.3(a)(iii),
the combined capital and surplus of such corporation or national association
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published.
(b) If at any time the Institutional Trustee shall cease to be eligible to so
act under Section 4.3(a), the Institutional Trustee shall immediately resign in
the manner and with the effect set forth in Section 4.7.
(c) If the Institutional Trustee has or shall acquire any "conflicting interest"
within the meaning of Section 310(b) of the Trust Indenture Act, the
Institutional Trustee shall either eliminate such interest or resign, to the
extent and in the manner provided by, and subject to this Declaration.
(d) The initial Institutional Trustee shall be Wells Fargo Bank, National
Association.
Section 4.4. Certain Qualifications of the Delaware Trustee Generally. The
Delaware Trustee shall be a U.S. Person and 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 4.5. Administrators. Each Administrator shall be a U.S. Person. There
shall at all times be at least one Administrator. Except where a requirement for
action by a specific number of Administrators is expressly set forth in this
Declaration and except with respect to any action the taking of which is the
subject of a meeting of the Administrators, any action required or permitted to
be taken by the Administrators may be taken by, and any power of the
Administrators may be exercised by, or with the consent of, any one such
Administrator acting alone.
Section 4.6. Initial Delaware Trustee. The initial Delaware Trustee shall be
Wells Fargo Delaware Trust Company.
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Section 4.7. Appointment, Removal and Resignation of the Trustees and the
Administrators.
(a) No resignation or removal of any Trustee (the "Relevant Trustee") and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of this Section 4.7.
(b) Subject to Section 4.7(a), a Relevant Trustee may resign at any time by
giving written notice thereof to the Holders of the Securities and by appointing
a successor Relevant Trustee. Upon the resignation of the Institutional Trustee,
the Institutional Trustee shall appoint a successor by requesting from at least
three Persons meeting the eligibility requirements their expenses and charges to
serve as the successor Institutional Trustee on a form provided by the
Administrators, and selecting the Person who agrees to the lowest expense and
charges (the "Successor Institutional Trustee"). If the instrument of acceptance
by the successor Relevant Trustee required by this Section 4.7 shall not have
been delivered to the Relevant Trustee within 60 days after the giving of such
notice of resignation or delivery of the instrument of removal, the Relevant
Trustee may petition, at the expense of the Trust, any federal, state or
District of Columbia court of competent jurisdiction for the appointment of a
successor Relevant Trustee. Such court may thereupon, after prescribing such
notice, if any, as it may deem proper, appoint a Relevant Trustee. The
Institutional Trustee shall have no liability for the selection of such
successor pursuant to this Section 4.7.
(c) Unless an Event of Default shall have occurred and be continuing, any
Trustee may be removed at any time by an act of the Holders of a Majority in
liquidation amount of the Common Securities. If any Trustee shall be so removed,
the Holders of the Common Securities, by act of the Holders of a Majority in
liquidation amount of the Common Securities delivered to the Relevant Trustee,
shall promptly appoint a successor Relevant Trustee, and such successor Trustee
shall comply with the applicable requirements of this Section 4.7. If an Event
of Default shall have occurred and be continuing, the Institutional Trustee or
the Delaware Trustee, or both of them, may be removed by the act of the Holders
of a Majority in liquidation amount of the Capital Securities, delivered to the
Relevant Trustee (in its individual capacity and on behalf of the Trust). If any
Trustee shall be so removed, the Holders of Capital Securities, by act of the
Holders of a Majority in liquidation amount of the Capital Securities then
outstanding delivered to the Relevant Trustee, shall promptly appoint a
successor Relevant Trustee or Trustees, and such successor Trustee shall comply
with the applicable requirements of this Section 4.7. If no successor Relevant
Trustee shall have been so appointed by the Holders of a Majority in liquidation
amount of the Capital Securities and accepted appointment in the manner required
by this Section 4.7 within 30 days after delivery of an instrument of removal,
the Relevant Trustee or any Holder who has been a Holder of the Securities for
at least six months may, on behalf of himself and all others similarly situated,
petition any federal, state or District of Columbia court of competent
jurisdiction for the appointment of a successor Relevant Trustee. Such court may
thereupon, after prescribing such notice, if any, as it may deem proper, appoint
a successor Relevant Trustee or Trustees.
(d) The Institutional Trustee shall give notice of each resignation and each
removal of a Trustee and each appointment of a successor Trustee to all Holders
and to the Sponsor. Each notice shall include the name of the successor Relevant
Trustee and the address of its Corporate Trust Office if it is the Institutional
Trustee.
(e) Notwithstanding the foregoing or any other provision of this Declaration, in
the event a Delaware Trustee who is a natural person dies or is adjudged by a
court to have become incompetent or incapacitated, the vacancy created by such
death, incompetence or incapacity may be filled by the Institutional Trustee
following the procedures in this Section 4.7 (with the successor being a Person
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who satisfies the eligibility requirement for a Delaware Trustee set forth in
this Declaration) (the "Successor Delaware Trustee").
(f) In case of the appointment hereunder of a successor Relevant Trustee, the
retiring Relevant Trustee and each successor Relevant Trustee with respect to
the Securities shall execute and deliver an amendment hereto wherein each
successor Relevant Trustee shall accept such appointment and which (i) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Relevant Trustee all the rights,
powers, trusts and duties of the retiring Relevant Trustee with respect to the
Securities and the Trust and (ii) shall add to or change any of the provisions
of this Declaration as shall be necessary to provide for or facilitate the
administration of the Trust by more than one Relevant Trustee, it being
understood that nothing herein or in such amendment shall constitute such
Relevant Trustees co-trustees and upon the execution and delivery of such
amendment the resignation or removal of the retiring Relevant Trustee shall
become effective to the extent provided therein and each such successor Relevant
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Relevant Trustee; but,
on request of the Trust or any successor Relevant Trustee, such retiring
Relevant Trustee shall duly assign, transfer and deliver to such successor
Relevant Trustee all Trust Property, all proceeds thereof and money held by such
retiring Relevant Trustee hereunder with respect to the Securities and the Trust
subject to the payment of all unpaid fees, expenses and indemnities of such
retiring Relevant Trustee.
(g) No Institutional Trustee or Delaware Trustee shall be liable for the acts or
omissions to act of any Successor Institutional Trustee or Successor Delaware
Trustee, as the case may be.
(h) The Holders of the Capital Securities will have no right to vote to appoint,
remove or replace the Administrators, which voting rights are vested exclusively
in the Holders of the Common Securities.
(i) Any successor Delaware Trustee shall file an amendment to the Certificate of
Trust with the Secretary of State of the State of Delaware identifying the name
and principal place of business of such Delaware Trustee in the State of
Delaware.
Section 4.8. Vacancies Among Trustees. If a Trustee ceases to hold office for
any reason and the number of Trustees is not reduced pursuant to Section 4.1, or
if the number of Trustees is increased pursuant to Section 4.1, a vacancy shall
occur. A resolution certifying the existence of such vacancy by the Trustees or,
if there are more than two, a majority of the Trustees shall be conclusive
evidence of the existence of such vacancy. The vacancy shall be filled with a
Trustee appointed in accordance with Section 4.7.
Section 4.9. 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 dissolve, terminate or annul the Trust
or terminate this Declaration. Whenever a vacancy in the number of Trustees
shall occur, until such vacancy is filled by the appointment of a Trustee in
accordance with Section 4.7, the Institutional Trustee shall have all the powers
granted to the Trustees and shall discharge all the duties imposed upon the
Trustees by this Declaration.
Section 4.10. Meetings of the Trustees and the Administrators. Meetings of the
Trustees or the Administrators shall be held from time to time upon the call of
any Trustee or Administrator, as applicable. Regular meetings of the Trustees
and the Administrators, respectively, may be in person in the United States or
by telephone, at a place (if applicable) and time fixed by resolution of the
Trustees or the Administrators, as applicable. Notice of any in-person meetings
of the Trustees or the Administrators shall be hand delivered or otherwise
delivered in writing (including by facsimile, with a hard copy by overnight
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courier) not less than 48 hours before such meeting. Notice of any telephonic
meetings of the Trustees or the Administrators or any committee thereof shall be
hand delivered or otherwise delivered in writing (including by facsimile, with a
hard copy by overnight courier) not less than 24 hours before a meeting. Notices
shall contain a brief statement of the time, place and anticipated purposes of
the meeting. The presence (whether in person or by telephone) of a Trustee or an
Administrator, as the case may be, at a meeting shall constitute a waiver of
notice of such meeting except where a Trustee or an Administrator, as the case
may be, attends a meeting for the express purpose of objecting to the
transaction of any activity on the ground that the meeting has not been lawfully
called or convened. Unless provided otherwise in this Declaration, any action of
the Trustees or the Administrators, as the case may be, may be taken at a
meeting by vote of a majority of the Trustees or the Administrators present
(whether in person or by telephone) and eligible to vote with respect to such
matter; provided, that, in the case of the Administrators, a Quorum is present,
or without a meeting by the unanimous written consent of the Trustees or the
Administrators, as the case may be. Meetings of the Trustees and the
Administrators together shall be held from time to time upon the call of any
Trustee or Administrator.
Section 4.11. Delegation of Power.
(a) Any Trustee or any Administrator, as the case may be, may, by power of
attorney consistent with applicable law, delegate to any other natural person
over the age of 21 that is a U.S. Person his or her power for the purpose of
executing any documents, instruments or other writings contemplated in Section
2.6.
(b) The Trustees shall have power to delegate from time to time to such of their
number or to any officer of the Trust that is a U.S. Person, the doing of such
things and the execution of such instruments or other writings either in the
name of the Trust or the names of the Trustees or otherwise as the Trustees may
deem expedient, to the extent such delegation is not prohibited by applicable
law or contrary to the provisions of the Trust, as set forth herein.
Section 4.12. Merger, Conversion, Consolidation or Succession to Business. Any
Person into which the Institutional Trustee or the Delaware Trustee, as the case
may be, may be merged or converted or with which either may be consolidated, or
any Person resulting from any merger, conversion or consolidation to which the
Institutional Trustee or the Delaware Trustee, as the case may be, shall be a
party, or any Person succeeding to all or substantially all the corporate trust
business of the Institutional Trustee or the Delaware Trustee, as the case may
be, shall be the successor of the Institutional Trustee or the Delaware Trustee,
as the case may be, hereunder, without the execution or filing of any paper or
any further act on the part of any of the parties hereto, provided such Person
shall be otherwise qualified and eligible under this Article and, provided,
further, that such Person shall file an amendment to the Certificate of Trust
with the Secretary of State of the State of Delaware as contemplated in Section
4.7(i).
ARTICLE V
DISTRIBUTIONS
Section 5.1. Distributions. Holders shall receive Distributions in accordance
with the applicable terms of the relevant Holder's Securities. Distributions
shall be made on the Capital Securities and the Common Securities in accordance
with the preferences set forth in their respective terms. If and to the extent
that the Debenture Issuer makes a payment of interest (including any Additional
Amounts or Deferred Interest) and/or principal on the Debentures held by the
Institutional Trustee (the amount of any such payment being a "Payment Amount"),
the Institutional Trustee shall and is directed, to the extent funds are
available in the Property Account for that purpose, to make a distribution (a
"Distribution") of the Payment Amount to Holders. For the avoidance of doubt,
funds in the Property Account shall not be
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distributed to Holders to the extent of any taxes payable by the Trust, in the
case of withholding taxes, as determined by the Institutional Trustee or any
Paying Agent and, in the case of taxes other than withholding taxes, as
determined by the Administrators in a written notice to the Institutional
Trustee.
ARTICLE VI
ISSUANCE OF SECURITIES
Section 6.1. General Provisions Regarding Securities.
(a) The Administrators shall on behalf of the Trust issue one series of capital
securities, subject to Section 8.2, evidenced by a certificate substantially in
the form of Exhibit A-1, representing undivided beneficial interests in the
assets of the Trust and having such terms as are set forth in Annex I (the
"Capital Securities"), and one series of common securities, evidenced by a
certificate substantially in the form of Exhibit A-2, representing undivided
beneficial interests in the assets of the Trust and having such terms as are set
forth in Annex I (the "Common Securities"). The Trust shall issue no securities
or other interests in the assets of the Trust other than the Capital Securities
and the Common Securities. The Capital Securities rank pari passu and payment
thereon shall be made Pro Rata with the Common Securities except that, where an
Event of Default has occurred and is continuing, the rights of Holders of the
Common Securities to payment in respect of Distributions and payments upon
liquidation, redemption and otherwise are subordinated to the rights to payment
of the Holders of the Capital Securities.
(b) The Certificates shall be signed on behalf of the Trust by one or more
Administrators. Such signature shall be the facsimile or manual signature of any
Administrator. In case any Administrator of the Trust who shall have signed any
of the Securities shall cease to be such Administrator before the Certificates
so signed shall be delivered by the Trust, such Certificates nevertheless may be
delivered as though the person who signed such Certificates had not ceased to be
such Administrator. Any Certificate may be signed on behalf of the Trust by such
person who, at the actual date of execution of such Security, shall be an
Administrator of the Trust, although at the date of the execution and delivery
of the Declaration any such person was not such an Administrator. A Capital
Security shall not be valid until authenticated by the manual signature of an
Authorized Officer of the Institutional Trustee. Such signature shall be
conclusive evidence that the Capital Security has been authenticated under this
Declaration. Upon written order of the Trust signed by one Administrator, the
Institutional Trustee shall authenticate the Capital Securities for original
issue. The Institutional Trustee may appoint an authenticating agent that is a
U.S. Person acceptable to the Trust to authenticate the Capital Securities. A
Common Security need not be so authenticated and shall be valid upon execution
by one or more Administrators.
(c) The consideration received by the Trust for the issuance of the Securities
shall constitute a contribution to the capital of the Trust and shall not
constitute a loan to the Trust.
(d) Upon issuance of the Securities as provided in this Declaration, the
Securities so issued shall be deemed to be validly issued, fully paid and
non-assessable, and each Holder thereof shall be entitled to the benefits
provided by this Declaration.
(e) Every Person, by virtue of having become a Holder in accordance with the
terms of this Declaration, shall be deemed to have expressly assented and agreed
to the terms of, and shall be bound by, this Declaration and the Guarantee.
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Section 6.2. Paying Agent, Transfer Agent, Calculation Agent and Registrar.
(a) The Trust shall maintain in Wilmington, Delaware, an office or agency where
the Securities may be presented for payment (the "Paying Agent"), and an office
or agency where Securities may be presented for registration of transfer or
exchange (the "Transfer Agent"). The Trust shall keep or cause to be kept at
such office or agency a register for the purpose of registering Securities and
transfers and exchanges of Securities, such register to be held by a registrar
(the "Registrar"). The Administrators may appoint the Paying Agent, the
Registrar and the Transfer Agent, and may appoint one or more additional Paying
Agents, one or more co-Registrars, or one or more co-Transfer Agents in such
other locations as it shall determine. The term "Paying Agent" includes any
additional Paying Agent, the term "Registrar" includes any additional Registrar
or co-Registrar and the term "Transfer Agent" includes any additional Transfer
Agent or co-Transfer Agent. The Administrators may change any Paying Agent,
Transfer Agent or Registrar at any time without prior notice to any Holder. The
Administrators shall notify the Institutional Trustee of the name and address of
any Paying Agent, Transfer Agent and Registrar not a party to this Declaration.
The Administrators hereby initially appoint the Institutional Trustee to act as
Paying Agent, Transfer Agent and Registrar for the Capital Securities and the
Common Securities at its Corporate Trust Office. The Institutional Trustee or
any of its Affiliates in the United States may act as Paying Agent, Transfer
Agent or Registrar.
(b) The Trust shall also appoint a Calculation Agent, which shall determine the
Coupon Rate in accordance with the terms of the Securities. The Trust initially
appoints the Institutional Trustee as Calculation Agent.
Section 6.3. Form and Dating.
(a) Subject to Section 8.2, the Capital Securities and the Institutional
Trustee's certificate of authentication thereon shall be substantially in the
form of Exhibit A-1, and the Common Securities shall be substantially in the
form of Exhibit A-2, each of which is hereby incorporated in and expressly made
a part of this Declaration. Certificates may be typed, printed, lithographed or
engraved or may be produced in any other manner as is reasonably acceptable to
the Administrators, as conclusively evidenced by their execution thereof. The
Securities may have letters, numbers, notations or other marks of identification
or designation and such legends or endorsements required by law, stock exchange
rule, agreements to which the Trust is subject, if any, or usage (provided, that
any such notation, legend or endorsement is in a form acceptable to the
Sponsor). The Trust at the direction of the Sponsor shall furnish any such
legend not contained in Exhibit A-1 to the Institutional Trustee in writing.
Each Capital Security shall be dated the date of its authentication. The terms
and provisions of the Securities set forth in Annex I and, subject to Section
8.2, the forms of Securities set forth in Exhibits A-1 and A-2 are part of the
terms of this Declaration and to the extent applicable, the Institutional
Trustee, the Delaware Trustee, the Administrators and the Sponsor, by their
execution and delivery of this Declaration, expressly agree to such terms and
provisions and to be bound thereby. Capital Securities will be issued only in
blocks having a stated liquidation amount of not less than $100,000.
(b) Subject to Section 8.2, the Capital Securities are being offered and sold by
the Trust pursuant to the Purchase Agreement in definitive form, registered in
the name of the Holder thereof, without coupons and with the Restricted
Securities Legend.
Section 6.4. Mutilated, Destroyed, Lost or Stolen Certificates. If:
(a) any mutilated Certificates should be surrendered to the Registrar, or if the
Registrar shall receive evidence to its satisfaction of the destruction, loss or
theft of any Certificate; and
27
(b) there shall be delivered to the Registrar, the Administrators and the
Institutional Trustee such security or indemnity as may be required by them to
keep each of them harmless;
then, in the absence of notice that such Certificate shall have been acquired by
a bona fide purchaser, an Administrator on behalf of the Trust shall execute
(and in the case of a Capital Security Certificate, the Institutional Trustee
shall authenticate) and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
denomination. In connection with the issuance of any new Certificate under this
Section 6.4, the Registrar or the Administrators may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection therewith. Any duplicate Certificate issued pursuant to this
Section shall constitute conclusive evidence of an ownership interest in the
relevant Securities, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
Section 6.5. Temporary Securities. Until definitive Securities are ready for
delivery, the Administrators may prepare and, in the case of the Capital
Securities, the Institutional Trustee shall authenticate, temporary Securities.
Temporary Securities shall be substantially in form of definitive Securities but
may have variations that the Administrators consider appropriate for temporary
Securities. Without unreasonable delay, the Administrators shall prepare and, in
the case of the Capital Securities, the Institutional Trustee shall authenticate
definitive Securities in exchange for temporary Securities.
Section 6.6. Cancellation. The Administrators at any time may deliver Securities
to the Institutional Trustee for cancellation. The Registrar shall forward to
the Institutional Trustee any Securities surrendered to it for registration of
transfer, redemption or payment. The Institutional Trustee shall promptly cancel
all Securities surrendered for registration of transfer, payment, replacement or
cancellation and shall dispose of such canceled Securities as the Administrators
direct. The Administrators may not issue new Securities to replace Securities
that have been paid or that have been delivered to the Institutional Trustee for
cancellation.
Section 6.7. Rights of Holders; Waivers of Past Defaults.
(a) The legal title to the Trust Property is vested exclusively in the
Institutional Trustee (in its capacity as such) in accordance with Section 2.5,
and the Holders shall not have any right or title therein other than the
undivided beneficial interest in the assets of the Trust conferred by their
Securities and they shall have no right to call for any partition or division of
property, profits or rights of the Trust except as described below. The
Securities shall be personal property giving only the rights specifically set
forth therein and in this Declaration. The Securities shall have no, and the
issuance of the Securities shall not be subject to, preemptive or other similar
rights and when issued and delivered to Holders against payment of the purchase
price therefor, the Securities will be fully paid and nonassessable by the
Trust.
(b) For so long as any Capital Securities remain outstanding, if, upon an
Acceleration Event of Default, the Debenture Trustee fails or the holders of not
less than 25% in principal amount of the outstanding Debentures fail to declare
the principal of all of the Debentures to be immediately due and payable, the
Holders of not less than a Majority in liquidation amount of the Capital
Securities then outstanding shall have the right to make such declaration by a
notice in writing to the Institutional Trustee, the Sponsor and the Debenture
Trustee.
(c) At any time after a declaration of acceleration with respect to the
Debentures has been made and before a judgment or decree for payment of the
money due has been obtained by the Debenture Trustee as provided in the
Indenture, if the Institutional Trustee, subject to the provisions hereof, fails
to annul any such declaration and waive such default, the Holders of not less
than a Majority in liquidation
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amount of the Capital Securities, by written notice to the Institutional
Trustee, the Sponsor and the Debenture Trustee, may rescind and annul such
declaration and its consequences if:
(i) the Sponsor has paid or deposited with the Debenture Trustee a sum
sufficient to pay
(A) all overdue installments of interest on all of the
Debentures,
(B) any accrued Deferred Interest on all of the Debentures,
(C) all payments on any Debentures that have become due
otherwise than by such declaration of acceleration and interest and
Deferred Interest thereon at the rate borne by the Debentures, and
(D) all sums paid or advanced by the Debenture Trustee under
the Indenture and the reasonable compensation, documented expenses,
disbursements and advances of the Debenture Trustee and the
Institutional Trustee, their agents and counsel; and
(ii) all Events of Default with respect to the Debentures, other than
the non-payment of the principal of the Debentures that has become due solely by
such acceleration, have been cured or waived as provided in Section 5.07 of the
Indenture.
(d) The Holders of not less than a Majority in liquidation amount of the Capital
Securities may, on behalf of the Holders of all the Capital Securities, waive
any past default or Event of Default, except a default or Event of Default in
the payment of principal or interest (unless such default or Event of Default
has been cured and a sum sufficient to pay all matured installments of interest
and principal due otherwise than by acceleration has been deposited with the
Debenture Trustee) or a default or Event of Default in respect of a covenant or
provision that under the Indenture cannot be modified or amended without the
consent of the holder of each outstanding Debenture. No such rescission shall
affect any subsequent default or impair any right consequent thereon.
(e) Upon receipt by the Institutional Trustee of written notice declaring such
an acceleration, or rescission and annulment thereof, by Holders of any part of
the Capital Securities, a record date shall be established for determining
Holders of outstanding Capital Securities entitled to join in such notice, which
record date shall be at the close of business on the day the Institutional
Trustee receives such notice. The Holders on such record date, or their duly
designated proxies, and only such Persons, shall be entitled to join in such
notice, whether or not such Holders remain Holders after such record date;
provided, that, unless such declaration of acceleration, or rescission and
annulment, as the case may be, shall have become effective by virtue of the
requisite percentage having joined in such notice prior to the day that is 90
days after such record date, such notice of declaration of acceleration, or
rescission and annulment, as the case may be, shall automatically and without
further action by any Holder be canceled and of no further effect. Nothing in
this paragraph shall prevent a Holder, or a proxy of a Holder, from giving,
after expiration of such 90-day period, a new written notice of declaration of
acceleration, or rescission and annulment thereof, as the case may be, that is
identical to a written notice that has been canceled pursuant to the proviso to
the preceding sentence, in which event a new record date shall be established
pursuant to the provisions of this Section 6.7.
(f) Except as otherwise provided in this Section 6.7, the Holders of not less
than a Majority in liquidation amount of the Capital Securities may, on behalf
of the Holders of all the Capital Securities, waive any past default or Event of
Default and its consequences. Upon such waiver, any such default or Event of
Default shall cease to exist, and any default or Event of Default arising
therefrom shall be
29
deemed to have been cured, for every purpose of this Declaration, but no such
waiver shall extend to any subsequent or other default or Event of Default or
impair any right consequent thereon.
ARTICLE VII
DISSOLUTION AND TERMINATION OF TRUST
Section 7.1. Dissolution and Termination of Trust.
(a) The Trust shall dissolve on the first to occur of:
(i) unless earlier dissolved, on December 16, 2039, the expiration of
the term of the Trust;
(ii) a Bankruptcy Event with respect to the Sponsor, the Trust or the
Debenture Issuer;
(iii) other than in connection with a merger, consolidation or similar
transaction not prohibited by the Indenture, this Declaration or the Guarantee,
as the case may be, the filing of a certificate of dissolution or its equivalent
with respect to the Sponsor or upon the revocation of the charter of the Sponsor
and the expiration of 90 days after the date of revocation without a
reinstatement thereof;
(iv) the distribution of the Debentures to the Holders of the
Securities, upon exercise of the right of the Holders of all of the outstanding
Common Securities to dissolve the Trust as provided in Annex I hereto;
(v) the entry of a decree of judicial dissolution of any Holder of the
Common Securities, the Sponsor, the Trust or the Debenture Issuer; (vi) the date
when all of the Securities shall have been called for redemption and the amounts
necessary for redemption thereof shall have been paid to the Holders in
accordance with the terms of the Securities; or
(vii) before the issuance of any Securities, with the consent of all
of the Trustees and the Sponsor.
(b) As soon as is practicable after the occurrence of an event referred to in
Section 7.1(a), and after satisfaction of liabilities to creditors of the Trust
as required by applicable law, including Section 3808 of the Statutory Trust
Act, and subject to the terms set forth in Annex I, the Institutional Trustee
shall terminate the Trust by filing a certificate of cancellation with the
Secretary of State of the State of Delaware.
(c) The provisions of Section 2.9 and Article IX shall survive the termination
of the Trust.
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ARTICLE VIII
TRANSFER OF INTERESTS
Section 8.1. General.
(a) Where Capital Securities are presented to the Registrar with a request to
register a transfer or to exchange them for an equal number of Capital
Securities represented by different Certificates, the Registrar shall register
the transfer or make the exchange if its requirements for such transactions are
met. To permit registrations of transfers and exchanges, the Trust shall issue
and the Institutional Trustee shall authenticate Capital Securities at the
Registrar's request.
(b) Upon issuance of the Common Securities, the Sponsor shall acquire and retain
beneficial and record ownership of the Common Securities and, for so long as the
Securities remain outstanding, the Sponsor shall maintain 100% ownership of the
Common Securities; provided, however, that any permitted successor of the
Sponsor under the Indenture that is a U.S. Person may succeed to the Sponsor's
ownership of the Common Securities.
(c) Capital Securities may only be transferred, in whole or in part, in
accordance with the terms and conditions set forth in this Declaration and in
the terms of the Capital Securities. To the fullest extent permitted by
applicable law, any transfer or purported transfer of any Security not made in
accordance with this Declaration shall be null and void and will be deemed to be
of no legal effect whatsoever and any such transferee shall be deemed not to be
the holder of such Capital Securities for any purpose, including but not limited
to the receipt of Distributions on such Capital Securities, and such transferee
shall be deemed to have no interest whatsoever in such Capital Securities.
(d) The Registrar shall provide for the registration of Securities and of
transfers of Securities, which will be effected without charge but only upon
payment (with such indemnity as the Registrar may require) in respect of any tax
or other governmental charges that may be imposed in relation to it. Upon
surrender for registration of transfer of any Securities, the Registrar shall
cause one or more new Securities to be issued in the name of the designated
transferee or transferees. Any Security issued upon any registration of transfer
or exchange pursuant to the terms of this Declaration shall evidence the same
Security and shall be entitled to the same benefits under this Declaration as
the Security surrendered upon such registration of transfer or exchange. Every
Security surrendered for registration of transfer shall be accompanied by a
written instrument of transfer in form similar to Exhibit B or C attached hereto
satisfactory to the Registrar duly executed by the Holder or such Holder's
attorney duly authorized in writing. Each Security surrendered for registration
of transfer shall be canceled by the Institutional Trustee pursuant to Section
6.6. A transferee of a Security shall be entitled to the rights and subject to
the obligations of a Holder hereunder upon the receipt by such transferee of a
Security. By acceptance of a Security, each transferee shall be deemed to have
agreed to be bound by this Declaration as amended, revised or supplemented from
time to time.
(e) Neither the Trust nor the Registrar shall be required (i) to issue, register
the transfer of, or exchange any Securities during a period beginning at the
opening of business 15 days before the day of any selection of Securities for
redemption and ending at the close of business on the earliest date on which the
relevant notice of redemption is deemed to have been given to all Holders of the
Securities to be redeemed, or (ii) to register the transfer or exchange of any
Security so selected for redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part.
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Section 8.2. Transfer Procedures and Restrictions.
(a) The Capital Securities shall bear the Restricted Securities Legend (as
defined below), which shall not be removed unless there is delivered to the
Trust such satisfactory evidence, which may include an opinion of counsel, as
may be reasonably required by the Trust, that neither the legend nor the
restrictions on transfer set forth therein are required to ensure that transfers
thereof comply with the provisions of the Securities Act or that such Securities
are not "restricted" within the meaning of Rule 144 under the Securities Act.
Upon provision of such satisfactory evidence, the Institutional Trustee, at the
written direction of the Trust, shall authenticate and deliver Capital
Securities that do not bear the Restricted Securities Legend.
(b) When Capital Securities are presented to the Registrar (x) to register the
transfer of such Capital Securities, or (y) to exchange such Capital Securities
for an equal number of Capital Securities represented by different Certificates,
the Registrar shall register the transfer or make the exchange as requested if
its reasonable requirements for such transaction are met; provided, however,
that the Capital Securities surrendered for registration of transfer or
exchange, other than in connection with the initial transfer by the Initial
Purchaser, pursuant to Section 8.4, shall be duly endorsed or accompanied by a
written instrument of transfer in form reasonably satisfactory to the Trust and
the Registrar, duly executed by the Holder thereof or his attorney duly
authorized in writing and (i) if such Capital Securities are being transferred
to a QIB or a Regulation S Transferee, accompanied by a certificate of the
transferor substantially in the form set forth as Exhibit C hereto or (ii) if
such Capital Securities are being transferred otherwise than to a QIB or a
Regulation S Transferee, accompanied by a certificate of the transferee
substantially in the form set forth as Exhibit B hereto.
(c) Except as permitted by Section 8.2(a) or as otherwise provided in Section
8.2(e), each Capital Security shall bear a legend (the "Restricted Securities
Legend") in substantially the following form:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR ANY OTHER
APPLICABLE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS SECURITY BY ITS
ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY ONLY
(A) TO THE DEBENTURE ISSUER OR THE TRUST, (B) PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON THE HOLDER REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE
IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) TO A
"NON-U.S. PERSON" IN AN "OFFSHORE TRANSACTION" PURSUANT TO REGULATION S UNDER
THE SECURITIES ACT, (D) PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT TO AN "ACCREDITED INVESTOR" WITHIN THE
MEANING OF SUBPARAGRAPH (a) (1), (2), (3) OR (7) OF RULE 501 UNDER THE
SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE
ACCOUNT OF AN "ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES AND NOT WITH A VIEW
TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF
THE SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE DEBENTURE
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ISSUER'S AND THE TRUST'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER
PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM IN
ACCORDANCE WITH THE AMENDED AND RESTATED DECLARATION OF TRUST, A COPY OF WHICH
MAY BE OBTAINED FROM THE DEBENTURE ISSUER OR THE TRUST. THE HOLDER OF THIS
SECURITY BY ITS ACCEPTANCE HEREOF AGREES THAT IT WILL COMPLY WITH THE FOREGOING
RESTRICTIONS.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES, REPRESENTS AND
WARRANTS THAT IT WILL NOT ENGAGE IN HEDGING TRANSACTIONS INVOLVING THIS SECURITY
UNLESS SUCH TRANSACTIONS ARE IN COMPLIANCE WITH THE SECURITIES ACT.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF ALSO AGREES, REPRESENTS AND
WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT, INDIVIDUAL RETIREMENT ACCOUNT OR
OTHER PLAN OR ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), (EACH A "PLAN"), OR AN ENTITY
WHOSE UNDERLYING ASSETS INCLUDE "PLAN ASSETS" BY REASON OF ANY PLAN'S INVESTMENT
IN THE ENTITY AND NO PERSON INVESTING "PLAN ASSETS" OF ANY PLAN MAY ACQUIRE OR
HOLD THIS SECURITY OR ANY INTEREST THEREIN, UNLESS SUCH PURCHASER OR HOLDER IS
ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF LABOR
PROHIBITED TRANSACTION CLASS EXEMPTION 96-23, 95-60, 91-38, 90-1 OR 84-14 OR
ANOTHER APPLICABLE EXEMPTION OR ITS PURCHASE AND HOLDING OF THIS SECURITY IS NOT
PROHIBITED BY SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE WITH RESPECT TO
SUCH PURCHASE OR HOLDING. ANY PURCHASER OR HOLDER OF THIS SECURITY OR ANY
INTEREST THEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING
THEREOF THAT EITHER (i) IT IS NOT AN EMPLOYEE BENEFIT PLAN WITHIN THE MEANING OF
SECTION 3(3) OF ERISA, OR A PLAN TO WHICH SECTION 4975 OF THE CODE IS
APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF AN EMPLOYEE BENEFIT
PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY USING THE ASSETS OF ANY EMPLOYEE
BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE, OR (ii) SUCH PURCHASE WILL NOT
RESULT IN A PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF
THE CODE FOR WHICH THERE IS NO APPLICABLE STATUTORY OR ADMINISTRATIVE EXEMPTION.
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND
TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS MAY BE REQUIRED BY THE
AMENDED AND RESTATED DECLARATION OF TRUST TO CONFIRM THAT THE TRANSFER COMPLIES
WITH THE FOREGOING RESTRICTIONS.
THIS SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING A
LIQUIDATION AMOUNT OF NOT LESS THAN $100,000 AND MULTIPLES OF $1,000 IN EXCESS
THEREOF. ANY ATTEMPTED TRANSFER OF THIS SECURITY IN A BLOCK HAVING A LIQUIDATION
AMOUNT OF LESS THAN $100,000 SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT
WHATSOEVER. ANY SUCH PURPORTED TRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDER
OF THIS SECURITY FOR ANY PURPOSE, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF
DISTRIBUTIONS ON THIS SECURITY, AND SUCH PURPORTED TRANSFEREE SHALL BE DEEMED TO
HAVE NO INTEREST WHATSOEVER IN THIS SECURITY.
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(d) Capital Securities may only be transferred in minimum blocks of $100,000
aggregate liquidation amount (100 Capital Securities) and multiples of $1,000 in
excess thereof. Any attempted transfer of Capital Securities in a block having
an aggregate liquidation amount of less than $100,000 shall be deemed to be void
and of no legal effect whatsoever. Any such purported transferee shall be deemed
not to be a Holder of such Capital Securities for any purpose, including, but
not limited to, the receipt of Distributions on such Capital Securities, and
such purported transferee shall be deemed to have no interest whatsoever in such
Capital Securities.
(e) The Trust, upon the request of the Initial Purchaser, shall provide for some
or all of the Capital Securities to be transferred and held through the
facilities of The Depository Trust Company, the Euroclear system, Clearstream
banking or similar book-entry system for holders and transferees who are QIB's
or Regulation S Transferees or, consistent with an opinion of counsel, other
holders or transferees. The Administrators on behalf of the Trust shall cause
appropriate revisions to the form of Capital Securities necessary to facilitate
book-entry transfers and holding.
Any person acquiring an interest in a Capital Security through a
book-entry facility will be deemed to represent the following:
1. We are:
(i) a "qualified institutional buyer" as defined in Rule
144A under the United States Securities Act of 1933, as amended (the
"Securities Act") and are acquiring Floating Rate TRUPS(R) (the
"Capital Securities") of Fidelity Federal Bancorp Statutory Trust-I
2004 (the "Trust") in reliance on Rule 144A; or
(ii) a person that is not a "U.S. person" as defined in
Regulation S under the Securities Act, and are acquiring the Capital
Securities in reliance on the exemption from registration provided by
Regulation S thereunder.
2. We understand that the Floating Rate Capital Securities (including
the guarantee (the "Guarantee") of Fidelity Federal Bancorp (the "Company")
executed in connection therewith) and the Floating Rate Junior Subordinated Debt
Securities due 2034 of the Company (the "Subordinated Debt Securities") (the
Capital Securities, the Guarantee and the Subordinated Debt Securities together
being referred to herein as the "Offered Securities"), have not been registered
under the Securities Act, and may not be offered or sold except as permitted in
the following sentence. We agree on our own behalf and on behalf of any investor
account for which we are purchasing the Capital Securities that, if we decide to
offer, sell or otherwise transfer any such Capital Securities, such offer, sale
or transfer will be made only (a) to the Company or the Trust, (b) pursuant to
Rule 144A under the Securities Act, to a person we reasonably believe is a
qualified institutional buyer under Rule 144A (a "QIB") that purchases for its
own account or for the account of a QIB and to whom notice is given that the
transfer is being made in reliance on Rule 144A, (c) pursuant to Regulation S
under the Securities Act, (d) pursuant to an exemption from registration, to an
"accredited investor" within the meaning of subparagraph (a) (1), (2), (3) or
(7) of Rule 501 under the Securities Act that is acquiring Capital Securities
for its own account or for the account of such an accredited investor for
investment purposes and not with a view to, or for offer or sale in connection
with, any distribution thereof in violation of the Securities Act, or (e)
pursuant to another available exemption from the registration requirements of
the Securities Act, and in each of the foregoing cases in accordance with any
applicable state securities laws and any requirements of law that govern the
disposition of our property. The foregoing restrictions on resale will not apply
subsequent to the date on which, in the written opinion of counsel, the Capital
Securities are not "restricted securities" within the meaning of Rule 144 under
the Securities Act. If any resale or other transfer of the Capital Securities is
proposed to be made pursuant to clause (d) or (e) above, the transferor shall
deliver a letter from the
34
transferee substantially in the form of Exhibit B hereto to the Institutional
Trustee as Transfer Agent, which shall provide as applicable, among other
things, that the transferee is an "accredited investor" within the meaning of
subparagraph (a)(1), (2), (3) or (7) of Rule 501 under the Securities Act that
is acquiring such Securities for investment purposes and not for distribution in
violation of the Securities Act. We acknowledge on our behalf and on behalf of
any investor account for which we are purchasing Capital Securities that the
Trust and the Company reserve the right prior to any offer, sale or other
transfer pursuant to clause (d) or (e) to require the delivery of any opinion of
counsel, certifications and/or other information satisfactory to the Trust and
the Company. We understand that the certificates for the Capital Securities will
bear a legend substantially to the effect of the foregoing.
3. We are acquiring the Capital Securities for investment purposes and
not with view to, or for offer or sale in connection with, any distribution in
violation of the Securities Act, and we have such knowledge and experience in
financial and business matters as to be capable of evaluating the merits and
risks of our investment in the Capital Securities, and we and any account for
which we are acting are each able to bear the economic risks of our or its
investment.
4. We are a sophisticated institutional investor, have knowledge and
experience in financial matters and are capable of independently evaluating the
merits and risks of our investment decision with respect to the Capital
Securities, and we have conducted, to the extent we deemed necessary, an
independent investigation of such matters, as, in our judgment, is necessary for
us to make an informed investment decision with respect to the acquisition of an
interest in the Capital Securities.
5. We are acquiring the Capital Securities purchased by us for our own
account (or for one or more accounts as to each of which we exercise sole
investment discretion and have authority to make, and do make, the statements
contained herein) and not with a view to any distribution of the Capital
Securities, subject, nevertheless, to the understanding that the disposition of
our property will at all times be and remain within our control.
6. In the event that we purchase any Capital Securities, we will
acquire such Capital Securities having an aggregate stated liquidation amount of
not less than $100,000, for our own account and for each separate account for
which we are acting.
7. We acknowledge that we either (A) are not a fiduciary of a pension,
profit-sharing or other employee benefit plan subject to the Employee Retirement
Income Security Act of 1974, as amended ("ERISA") (a "Plan"), or an entity whose
assets include "plan assets" by reason of any Plan's investment in the entity
and are not purchasing the Capital Securities on behalf of or with "plan assets"
by reason of any Plan's investment in the entity and are not purchasing the
Capital Securities on behalf of or with "plan assets" of any Plan or (B) are
eligible for the exemptive relief available under one or more of the following
prohibited transaction class exemptions ("PTCEs") issued by the U.S. Department
of Labor: PTCE 96-23, 95-60, 91-38, 90-1 or 84-14.
8. We acknowledge that the Trust and the Company and others will rely
upon the truth and accuracy of the foregoing acknowledgments, representations,
warranties and agreements and agree that if any of the acknowledgments,
representations, warranties and agreements deemed to have been made by our
purchase of the Capital Securities are no longer accurate, we shall promptly
notify the Initial Purchaser. If we are acquiring any Capital Securities as a
fiduciary or agent for one or more investor accounts, we represent that we have
sole discretion with respect to each such investor account and that we have full
power to make the foregoing acknowledgments, representations and agreement on
behalf of each such investor account.
The above deemed representations may be modified consistent with an
opinion of counsel.
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Section 8.3. Deemed Security Holders. The Trust, the Administrators, the
Trustees, the Paying Agent, the Transfer Agent or the Registrar may treat the
Person in whose name any Certificate shall be registered on the books and
records of the Trust as the sole holder of such Certificate and of the
Securities represented by such Certificate for purposes of receiving
Distributions and for all other purposes whatsoever and, accordingly, shall not
be bound to recognize any equitable or other claim to or interest in such
Certificate or in the Securities represented by such Certificate on the part of
any Person, whether or not the Trust, the Administrators, the Trustees, the
Paying Agent, the Transfer Agent or the Registrar shall have actual or other
notice thereof.
Section 8.4. Initial Transfer of Capital Securities. Notwithstanding the
foregoing provisions of this Article VIII or any other provision of this
Declaration (including all Annexes and Exhibits hereto) to the contrary, any or
all of the Capital Securities issued to the Initial Purchaser on the date of
this Declaration (the "Initial Securities") may be transferred by the Initial
Purchaser to Regional Diversified Funding 2004-II Ltd. or such other transferees
as the Initial Purchaser may select, and such transfer of the Initial Securities
shall be accomplished as follows and no other conditions, restrictions or other
provisions of this Declaration or any other document shall apply to such
transfer: (i) the Certificate(s) evidencing the Initial Securities issued to the
Initial Purchaser to be transferred shall be surrendered to the Registrar for
registration of transfer and shall be accompanied by an assignment, executed by
the Initial Purchaser, in the form attached to Exhibit A-1 hereof, except that
no signature guarantee shall be required, and (ii) in the case of the transfer
to Regional Diversified Funding 2004-II Ltd. or other pooled trust preferred
vehicle designated by the Initial Purchaser, such surrendered Certificate shall
be cancelled by the Institutional Trustee pursuant to Section 6.6 and a new
Certificate, registered in the name of the trustee (with appropriate language
indicating the status of such trustee as a trustee and any beneficiaries) for
such pooled vehicle as directed by such trustee, in accordance with an indenture
under which such pooled vehicle will pledge such Certificate or as directed by
the Initial Purchaser, and if directed by the Initial Purchaser such Certificate
shall be designated as Certificate No. P-1, evidencing the number of Capital
Securities to be transferred to such pooled vehicle and, if applicable, another
new Certificate, registered as directed by the Initial Purchaser, evidencing any
remaining Capital Securities represented by such cancelled Certificate, shall be
executed by an Administrator on behalf of the Trust and, upon receipt of such
executed Certificate(s), the Institutional Trustee is hereby authorized and
directed to execute the certificate of authentication thereon and deliver such
new Certificate(s) to the Holder(s) thereof.
ARTICLE IX
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, 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 shall not be:
(i) personally liable for the return of any portion of the capital
contributions (or any return thereon) of the Holders of the Securities which
shall be made solely from assets of the Trust; and
(ii) required to pay to the Trust or to any Holder of the Securities
any deficit upon dissolution of the Trust or otherwise.
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(b) The Holder of the Common Securities shall be liable for all of the debts and
obligations of the Trust (other than with respect to the Securities) to the
extent not satisfied out of the Trust's assets.
(c) Pursuant to Section 3803(a) of the Statutory Trust Act, the Holders of the
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, except as otherwise
specifically set forth herein.
Section 9.2. Exculpation.
(a) No Indemnified Person shall be liable, responsible or accountable in damages
or otherwise to the Trust or any Covered Person for any loss, damage or claim
incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Declaration or by law, except that
an Indemnified Person (other than an Administrator) shall be liable for any such
loss, damage or claim incurred by reason of such Indemnified Person's negligence
or willful misconduct with respect to such acts or omissions and except that an
Administrator shall be liable for any such loss, damage or claim incurred by
reason of such Administrator's gross negligence or willful misconduct with
respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good faith upon
the records of the Trust and upon such information, opinions, reports or
statements presented to the Trust by any Person as to matters the Indemnified
Person reasonably believes are within such other Person's professional or expert
competence and, if selected by such Indemnified Person, has been selected by
such Indemnified Person with reasonable care by or on behalf of the Trust,
including information, opinions, reports or statements as to the value and
amount of the assets, liabilities, profits, losses or any other facts pertinent
to the existence and amount of assets from which Distributions to Holders of
Securities might properly be paid.
Section 9.3. Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified Person has duties
(including fiduciary duties) and liabilities relating thereto to the Trust or to
any other Covered Person, an Indemnified Person acting under this Declaration
shall not be liable to the Trust or to any other Covered Person for its good
faith reliance on the provisions of this Declaration. The provisions of this
Declaration, to the extent that they restrict the duties and liabilities of an
Indemnified Person otherwise existing at law or in equity (other than the duties
imposed on the Institutional Trustee under the Trust Indenture Act), are agreed
by the parties hereto to replace such other duties and liabilities of the
Indemnified Person.
(b) Whenever in this Declaration an Indemnified Person is permitted or required
to make a decision:
(i) in its "discretion" or under a grant of similar authority, the
Indemnified Person shall be entitled to consider such interests and factors as
it desires, including its own interests, and shall have no duty or obligation to
give any consideration to any interest of or factors affecting the Trust or any
other Person; or
37
(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 Sponsor shall indemnify, to the fullest extent permitted
by law, any Indemnified Person who was or is a party or is threatened to be made
a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the Trust) by reason of the fact that such Person is or
was an Indemnified Person against expenses (including attorneys' fees and
expenses), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such Person in connection with such action, suit or
proceeding if such Person acted in good faith and in a manner such Person
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 such 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 Indemnified Person did not act in good faith and in a manner which such
Person 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 such conduct was unlawful.
(ii) The Sponsor shall indemnify, to the fullest extent permitted by
law, any Indemnified Person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit by or in the right
of the Trust to procure a judgment in its favor by reason of the fact that such
Person is or was an Indemnified Person against expenses (including attorneys'
fees and expenses) actually and reasonably incurred by such Person in connection
with the defense or settlement of such action or suit if such Person acted in
good faith and in a manner such Person reasonably believed to be in or not
opposed to the best interests of the Trust and except that no such
indemnification shall be made in respect of any claim, issue or matter as to
which such Indemnified Person shall have been adjudged to be liable to the Trust
unless and only to the extent that the Court of Chancery of Delaware or the
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances
of the case, such Person is fairly and reasonably entitled to indemnity for such
expenses which such Court of Chancery or such other court shall deem proper.
(iii) To the extent that an Indemnified Person shall be successful on
the merits or otherwise (including dismissal of an action without prejudice or
the settlement of an action without admission of liability) in defense of any
action, suit or proceeding referred to in paragraphs (i) and (ii) of this
Section 9.4(a), or in defense of any claim, issue or matter therein, such Person
shall be indemnified, to the fullest extent permitted by law, against expenses
(including attorneys' fees and expenses) actually and reasonably incurred by
such Person in connection therewith.
(iv) Any indemnification of an Administrator under paragraphs (i) and
(ii) of this Section 9.4(a) (unless ordered by a court) shall be made by the
Sponsor only as authorized in the specific case upon a determination that
indemnification of the Indemnified Person is proper in the circumstances because
such Person has met the applicable standard of conduct set forth in paragraphs
(i) and (ii). Such determination shall be made (A) by the Administrators by a
majority vote of a Quorum consisting of such Administrators who were not parties
to such action, suit or
38
proceeding, (B) if such a Quorum is not obtainable, or, even if obtainable, if a
Quorum of disinterested Administrators so directs, by independent legal counsel
in a written opinion, or (C) by the Common Security Holder of the Trust.
(v) To the fullest extent permitted by law, expenses (including
attorneys' fees and expenses) incurred by an Indemnified Person in defending a
civil, criminal, administrative or investigative action, suit or proceeding
referred to in paragraphs (i) and (ii) of this Section 9.4(a) shall be paid by
the Sponsor in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such Indemnified
Person to repay such amount if it shall ultimately be determined that such
Person is not entitled to be indemnified by the Sponsor as authorized in this
Section 9.4(a). Notwithstanding the foregoing, no advance shall be made by the
Sponsor if a determination is reasonably and promptly made (1) in the case of a
Company Indemnified Person (A) by the Administrators by a majority vote of a
Quorum of disinterested Administrators, (B) if such a Quorum is not obtainable,
or, even if obtainable, if a Quorum of disinterested Administrators so directs,
by independent legal counsel in a written opinion or (C) by the Common Security
Holder of the Trust, that, based upon the facts known to the Administrators,
counsel or the Common Security Holder at the time such determination is made,
such Indemnified Person acted in bad faith or in a manner that such Person
either believed to be opposed to or did not believe to be in the best interests
of the Trust, or, with respect to any criminal proceeding, that such Indemnified
Person believed or had reasonable cause to believe such conduct was unlawful, or
(2) in the case of a Fiduciary Indemnified Person, by independent legal counsel
in a written opinion that, based upon the facts known to the counsel at the time
such determination is made, such Indemnified Person acted in bad faith or in a
manner that such Indemnified Person either believed to be opposed to or did not
believe to be in the best interests of the Trust, or, with respect to any
criminal proceeding, that such Indemnified Person believed or had reasonable
cause to believe such conduct was unlawful. In no event shall any advance be
made (i) to a Company Indemnified Person in instances where the Administrators,
independent legal counsel or the Common Security Holder reasonably determine
that such Person deliberately breached such Person's duty to the Trust or its
Common or Capital Security Holders or (ii) to a Fiduciary Indemnified Person in
instances where independent legal counsel promptly and reasonably determines in
a written opinion that such Person deliberately breached such Person's duty to
the Trust or its Common or Capital Security Holders.
(b) The Sponsor shall indemnify, to the fullest extent permitted by applicable
law, each Indemnified Person from and against any and all loss, damage,
liability, tax (other than taxes based on the income of such Indemnified
Person), penalty, expense or claim of any kind or nature whatsoever incurred by
such Indemnified Person arising out of or in connection with or by reason of the
creation, administration or termination of the Trust, or any act or omission of
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 authority
conferred on such Indemnified Person by this Declaration, except that no
Indemnified Person shall be entitled to be indemnified in respect of any loss,
damage, liability, tax, penalty, expense or claim incurred by such Indemnified
Person by reason of negligence or willful misconduct with respect to such acts
or omissions.
(c) The indemnification and advancement of expenses provided by, or granted
pursuant to, the other paragraphs of this Section 9.4 shall not be deemed
exclusive of any other rights to which those seeking indemnification and
advancement of expenses may be entitled under any agreement, vote of
stockholders or disinterested directors of the Sponsor or Capital Security
Holders of the Trust or otherwise, both as to action in such Person's official
capacity and as to action in another capacity while holding such office. All
rights to indemnification under this Section 9.4 shall be deemed to be provided
by a contract between the Sponsor and each Indemnified Person who serves in such
capacity at any time
39
while this Section 9.4 is in effect. Any repeal or modification of this Section
9.4 shall not affect any rights or obligations then existing.
(d) The Sponsor or the Trust may purchase and maintain insurance on behalf of
any Person who is or was an Indemnified Person against any liability asserted
against such Person and incurred by such Person in any such capacity, or arising
out of such Person's status as such, whether or not the Sponsor would have the
power to indemnify such Person against such liability under the provisions of
this Section 9.4.
(e) For purposes of this Section 9.4, references to "the Trust" shall include,
in addition to the resulting or surviving entity, any constituent entity
(including any constituent of a constituent) absorbed in a consolidation or
merger, so that any Person who is or was a director, trustee, officer or
employee of such constituent entity, or is or was serving at the request of such
constituent entity as a director, trustee, officer, employee or agent of another
entity, shall stand in the same position under the provisions of this Section
9.4 with respect to the resulting or surviving entity as such Person would have
with respect to such constituent entity if its separate existence had continued.
(f) The indemnification and advancement of expenses provided by, or granted
pursuant to, this Section 9.4 shall, unless otherwise provided when authorized
or ratified, continue as to a Person who has ceased to be an Indemnified Person
and shall inure to the benefit of the heirs, executors and administrators of
such a Person.
(g) The provisions of this Section 9.4 shall survive the termination of this
Declaration or the earlier resignation or removal of the Institutional Trustee.
The obligations of the Sponsor under this Section 9.4 to compensate and
indemnify the Trustees and to pay or reimburse the Trustees for expenses,
disbursements and advances shall constitute additional indebtedness hereunder.
Such additional indebtedness shall be secured by a lien prior to that of the
Securities upon all property and funds held or collected by the Trustees as
such, except funds held in trust for the benefit of the holders of particular
Capital Securities, provided, that the Sponsor is the holder of the Common
Securities.
Section 9.5. Outside Businesses. Any Covered Person, the Sponsor, the Delaware
Trustee and the Institutional Trustee (subject to Section 4.3(c)) may engage in
or possess an interest in other business ventures of any nature or description,
independently or with others, similar or dissimilar to the business of the
Trust, and the Trust and the Holders of Securities shall have no rights by
virtue of this Declaration in and to such independent ventures or the income or
profits derived therefrom, and the pursuit of any such venture, even if
competitive with the business of the Trust, shall not be deemed wrongful or
improper. None of any Covered Person, the Sponsor, the Delaware Trustee or the
Institutional Trustee shall be obligated to present any particular investment or
other opportunity to the Trust even if such opportunity is of a character that,
if presented to the Trust, could be taken by the Trust, and any Covered Person,
the Sponsor, the Delaware Trustee and the Institutional Trustee shall have the
right to take for its own account (individually or as a partner or fiduciary) or
to recommend to others any such particular investment or other opportunity. Any
Covered Person, the Delaware Trustee and the Institutional Trustee may engage or
be interested in any financial or other transaction with the Sponsor or any
Affiliate of the Sponsor, or may act as depositary for, trustee or agent for, or
act on any committee or body of holders of, securities or other obligations of
the Sponsor or its Affiliates.
Section 9.6. Compensation; Fee. (a) The Sponsor agrees:
(i) to pay to the Trustees from time to time such compensation for all
services rendered by them hereunder as the parties shall agree in writing from
time to time (which
40
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust); and
(ii) except as otherwise expressly provided herein, to reimburse the
Trustees upon request for all reasonable, documented expenses, disbursements and
advances incurred or made by the Trustees in accordance with any provision of
this Declaration (including the reasonable compensation and the expenses and
disbursements of their respective agents and counsel), except any such expense,
disbursement or advance attributable to their negligence or willful misconduct.
(b) The provisions of this Section 9.6 shall survive the dissolution of the
Trust and the termination of this Declaration and the removal or resignation of
any Trustee.
ARTICLE X
ACCOUNTING
Section 10.1. Fiscal Year. The fiscal year (the "Fiscal Year") of the Trust
shall be the calendar year, or such other year as is required by the Code.
Section 10.2. Certain Accounting Matters.
(a) At all times during the existence of the Trust, the Administrators shall
keep, or cause to be kept at the principal office of the Trust in the United
States, as defined for purposes of Treasury Regulations Section 301.7701-7, full
books of account, records and supporting documents, which shall reflect in
reasonable detail each transaction of the Trust. The books of account shall be
maintained on the accrual method of accounting, in accordance with generally
accepted accounting principles, consistently applied.
(b) The Administrators shall either (i) cause each Form 10-K and Form 10-Q
prepared by the Sponsor and filed with the Commission in accordance with the
Exchange Act to be delivered to each Holder of Securities, within 90 days after
the filing of each Form 10-K and within 30 days after the filing of each Form
10-Q or (ii) cause to be prepared at the principal office of the Trust in the
United States, as defined for purposes of Treasury Regulations Section
301.7701-7, and delivered to each of the Holders 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 Administrators shall cause to be duly prepared and delivered to each of
the Holders of Securities Form 1099 or such other annual United States federal
income tax information statement required by the Code, containing such
information with regard to the Securities held by each Holder as is required by
the Code and the Treasury Regulations. Notwithstanding any right under the Code
to deliver any such statement at a later date, the Administrators shall endeavor
to deliver all such statements within 30 days after the end of each Fiscal Year
of the Trust.
(d) The Administrators shall cause to be duly prepared in the United States, as
defined for purposes of Treasury Regulations Section 301.7701-7, and filed an
annual United States federal income tax return on a Form 1041 or such other form
required by United States federal income tax law, and any other annual income
tax returns required to be filed by the Administrators on behalf of the Trust
with any state or local taxing authority.
(e) The Administrators will cause the Sponsor's reports on Form H-b(11) to be
delivered to the Holder promptly following their filing with the OTS.
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Section 10.3. Banking. The Trust shall maintain one or more bank accounts in the
United States, as defined for purposes of Treasury Regulations Section
301.7701-7, in the name and for the sole benefit of the Trust; provided,
however, that all payments of funds in respect of the Debentures held by the
Institutional Trustee shall be made directly to the Property Account and no
other funds of the Trust shall be deposited in the Property Account. The sole
signatories for such accounts (including the Property Account) shall be
designated by the Institutional Trustee.
Section 10.4. Withholding. The Institutional Trustee or any Paying Agent and the
Administrators shall comply with all withholding requirements under United
States federal, state and local law. The Institutional Trustee or any Paying
Agent shall request, and each Holder shall provide to the Institutional Trustee
or any Paying Agent, such forms or certificates as are necessary to establish an
exemption from withholding with respect to the Holder, and any representations
and forms as shall reasonably be requested by the Institutional Trustee or any
Paying Agent to assist it in determining the extent of, and in fulfilling, its
withholding obligations. The Administrators shall file required forms with
applicable jurisdictions and, unless an exemption from withholding is properly
established by a Holder, shall remit amounts withheld with respect to the Holder
to applicable jurisdictions. To the extent that the Institutional Trustee or any
Paying Agent is required to withhold and pay over any amounts to any authority
with respect to distributions or allocations to any Holder, the amount withheld
shall be deemed to be a Distribution to the Holder in the amount of the
withholding. In the event of any claimed overwithholding, Holders shall be
limited to an action against the applicable jurisdiction. If the amount required
to be withheld was not withheld from actual Distributions made, the
Institutional Trustee or any Paying Agent may reduce subsequent Distributions by
the amount of such withholding.
ARTICLE XI
AMENDMENTS AND MEETINGS
Section 11.1. Amendments.
(a) Except as otherwise provided in this Declaration or by any applicable terms
of the Securities, this Declaration may only be amended by a written instrument
approved and executed by
(i) the Institutional Trustee,
(ii) if the amendment affects the rights, powers, duties, obligations
or immunities of the Delaware Trustee, the Delaware Trustee,
(iii) if the amendment affects the rights, powers, duties, obligations
or immunities of the Administrators, the Administrators, and
(iv) the Holders of a Majority in liquidation amount of the Common
Securities.
(b) Notwithstanding any other provision of this Article XI, no amendment shall
be made, and any such purported amendment shall be void and ineffective:
(i) unless the Institutional Trustee shall have first received
(A) an Officers' Certificate from each of the Trust and the
Sponsor that such amendment is permitted by, and conforms to, the
terms of this Declaration (including the terms of the Securities); and
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(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; or
(ii) if the result of such amendment would be to
(A) cause the Trust to cease to be classified for purposes
of United States federal income taxation as a grantor trust;
(B) reduce or otherwise adversely affect the powers of the
Institutional Trustee in contravention of the Trust Indenture Act;
(C) cause the Trust to be deemed to be an Investment Company
required to be registered under the Investment Company Act; or
(D) cause the Debenture Issuer to be unable to treat an
amount equal to the Liquidation Amount of the Debentures as "Tier 1
Capital" or its then equivalent in the guidelines or regulations
issued by the OTS; provided, that the Debenture Issuer shall have
become, or pursuant to law or regulation will become within 180 days,
subject to capital requirements.
(c) Except as provided in Section 11.1(d), (e) or (g), no amendment shall be
made, and any such purported amendment shall be void and ineffective, unless the
Holders of a Majority in liquidation amount of the Capital Securities shall have
consented to such amendment.
(d) In addition to and notwithstanding any other provision in this Declaration,
without the consent of each affected Holder, this Declaration may not be amended
to (i) change the amount or timing of any Distribution on the Securities or
otherwise adversely affect the amount of any Distribution required to be made in
respect of the Securities as of a specified date or (ii) restrict the right of a
Holder to institute suit for the enforcement of any such payment on or after
such date.
(e) Sections 9.1(b) and 9.1(c) and this Section 11.1 shall not be amended
without the consent of all of the Holders of the Securities.
(f) The rights of the Holders of the Capital Securities and Common Securities,
as applicable, under Article IV 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 Capital Securities or Common
Securities, as applicable.
(g) This Declaration may be amended by the Institutional Trustee and the Holder
of a Majority in liquidation amount of the Common Securities without the consent
of the Holders of the Capital Securities to:
(i) cure any ambiguity;
(ii) correct or supplement any provision in this Declaration that may
be defective or inconsistent with any other provision of this Declaration;
(iii) add to the covenants, restrictions or obligations of the
Sponsor;
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(iv) modify, eliminate or add to any provision of this Declaration to
such extent as may be necessary or desirable, including, without limitation, to
ensure that the Trust will be classified for United States federal income tax
purposes at all times as a grantor trust and will not be required to register as
an Investment Company under the Investment Company Act (including without
limitation to conform to any change in Rule 3a-5, Rule 3a-7 or any other
applicable rule under the Investment Company Act or written change in
interpretation or application thereof by any legislative body, court, government
agency or regulatory authority) which amendment does not have a material adverse
effect on the right, preferences or privileges of the Holders of Securities; or
(v) facilitate the clearance of the Capital Securities through the
facilities of The Depository Trust Company or other book-entry system.
provided, however, that no such modification, elimination or addition referred
to in clause (i), (ii), (iii), (iv) or (v) shall adversely affect the powers,
preferences or rights of Holders of Capital Securities (it being understood, for
purposes of this proviso, that providing for transfer of the Capital Securities
in global or book-entry form shall not be deemed to adversely affect the powers,
preferences or rights of Holders of the Capital Securities).
Section 11.2. Meetings of the Holders of the Securities; Action by Written
Consent.
(a) Meetings of the Holders of any class of Securities may be called at any time
by the Administrators (or as provided in the terms of the Securities) to
consider and act on any matter on which Holders of such class of Securities are
entitled to act under the terms of this Declaration, the terms of the Securities
or the rules of any stock exchange on which the Capital Securities are listed or
admitted for trading, if any. The Administrators shall call a meeting of the
Holders of such class if directed to do so by the Holders of not less than 10%
in liquidation amount of such class of Securities. Such direction shall be given
by delivering to the Administrators one or more notices in a writing stating
that the signing Holders of the Securities wish to call a meeting and indicating
the general or specific purpose for which the meeting is to be called. Any
Holders of the Securities calling a meeting shall specify in writing the
Certificates held by the Holders of the Securities exercising the right to call
a meeting and only those Securities represented by such Certificates shall be
counted for purposes of determining whether the required percentage set forth in
the second sentence of this paragraph has been met.
(b) Except to the extent otherwise provided in the terms of the Securities, the
following provisions shall apply to meetings of Holders of the Securities:
(i) notice of any such meeting shall be given to all the Holders of
the Securities having a right to vote thereat at least 7 days and not more than
60 days before the date of such meeting. Whenever a vote, consent or approval of
the Holders of the Securities is permitted or required under this Declaration or
the rules of any stock exchange on which the Capital Securities are listed or
admitted for trading, if any, such vote, consent or approval may be given at a
meeting of the Holders of the Securities. Any action that may be taken at a
meeting of the Holders of the Securities may be taken without a meeting if a
consent in writing setting forth the action so taken is signed by the Holders of
the Securities owning not less than the minimum amount of Securities that would
be necessary to authorize or take such action at a meeting at which all Holders
of the Securities having a right to vote thereon were present and voting. Prompt
notice of the taking of action without a meeting shall be given to the Holders
of the Securities entitled to vote who have not consented in writing. The
Administrators may specify that any written ballot submitted to the Holders of
the Securities for the purpose of taking any action without a meeting shall be
returned to the Trust within the time specified by the Administrators;
44
(ii) each Holder of a Security may authorize any Person to act for it
by proxy on all matters in which a Holder of Securities is entitled to
participate, including waiving notice of any meeting, or voting or participating
at a meeting. No proxy shall be valid after the expiration of 11 months from the
date thereof unless otherwise provided in the proxy. Every proxy shall be
revocable at the pleasure of the Holder of the Securities executing it. Except
as otherwise provided herein, all matters relating to the giving, voting or
validity of proxies shall be governed by the General Corporation Law of the
State of 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; each meeting of the Holders of the
Securities shall be conducted by the Administrators or by such other Person that
the Administrators may designate; and
(iii) unless the Statutory Trust Act, this Declaration, the terms of
the Securities, the Trust Indenture Act or the listing rules of any stock
exchange on which the Capital Securities are then listed for trading, if any,
otherwise provides, the Administrators, in their sole discretion, shall
establish all other provisions relating to meetings of Holders of Securities,
including notice of the time, place or purpose of any meeting at which any
matter is to be voted on by any Holders of the Securities, waiver of any such
notice, action by consent without a meeting, the establishment of a record date,
quorum requirements, voting in person or by proxy or any other matter with
respect to the exercise of any such right to vote; provided, however, that each
meeting shall be conducted in the United States (as that term is defined in
Treasury Regulations Section 301.7701-7).
ARTICLE XII
REPRESENTATIONS OF INSTITUTIONAL TRUSTEE
AND DELAWARE TRUSTEE
Section 12.1. Representations and Warranties of Institutional Trustee. The
Trustee that acts as initial Institutional Trustee represents and warrants to
the Trust and to the Sponsor at the date of this Declaration, and each Successor
Institutional Trustee represents and warrants to the Trust and the Sponsor at
the time of the Successor Institutional Trustee's acceptance of its appointment
as Institutional Trustee, that:
(a) the Institutional Trustee is a banking corporation or national association
with trust powers, duly organized, validly existing and in good standing under
the laws of the State of Delaware or the United States of America, respectively,
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 Institutional Trustee has a combined capital and surplus of at least
fifty million U.S. dollars ($50,000,000);
(c) the Institutional Trustee is not an affiliate of the Sponsor, nor does the
Institutional Trustee offer or provide credit or credit enhancement to the
Trust;
(d) the execution, delivery and performance by the Institutional Trustee of this
Declaration has been duly authorized by all necessary action on the part of the
Institutional Trustee. This Declaration has been duly executed and delivered by
the Institutional Trustee, and under Delaware law (excluding any securities
laws) constitutes a legal, valid and binding obligation of the Institutional
Trustee, enforceable against it in accordance with its terms, subject to
applicable bankruptcy, reorganization, moratorium,
45
insolvency and other similar laws affecting creditors' rights generally and to
general principles of equity and the discretion of the court (regardless of
whether considered in a proceeding in equity or at law);
(e) the execution, delivery and performance of this Declaration by the
Institutional Trustee does not conflict with or constitute a breach of the
charter or by-laws of the Institutional Trustee; and
(f) no consent, approval or authorization of, or registration with or notice to,
any state or federal banking authority governing the trust powers of the
Institutional Trustee is required for the execution, delivery or performance by
the Institutional Trustee of this Declaration.
Section 12.2. Representations and Warranties of Delaware Trustee. The Trustee
that acts as initial Delaware Trustee represents and warrants to the Trust and
to the Sponsor at the date of this Declaration, and each Successor Delaware
Trustee represents and warrants to the Trust and the Sponsor at the time of the
Successor Delaware Trustee's acceptance of its appointment as Delaware Trustee
that:
(a) if it is not a natural person, the Delaware Trustee is duly organized,
validly existing and in good standing under the laws of the State of Delaware;
(b) if it is not a natural person, the execution, delivery and performance by
the Delaware Trustee of this Declaration has been duly authorized by all
necessary corporate action on the part of the Delaware Trustee. This Declaration
has been duly executed and delivered by the Delaware Trustee, and under Delaware
law (excluding any securities laws) 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 considered in a proceeding in equity or at law);
(c) if it is not a natural person, the execution, delivery and performance of
this Declaration by the Delaware Trustee does not conflict with or constitute a
breach of the charter or by-laws of the Delaware Trustee;
(d) it has trust power and authority to execute and deliver, and to carry out
and perform its obligations under the terms of, this Declaration;
(e) no consent, approval or authorization of, or registration with or notice to,
any state or federal banking authority governing the trust powers of the
Delaware Trustee is required for the execution, delivery or performance by the
Delaware Trustee of this Declaration; and
(f) the Delaware Trustee is a natural person who is a resident of the State of
Delaware or, if not a natural person, it is an entity which has its principal
place of business in the State of Delaware and, in either case, a Person that
satisfies for the Trust the requirements of Section 3807 of the Statutory Trust
Act.
ARTICLE XIII
MISCELLANEOUS
Section 13.1. Notices. All notices provided for in this Declaration shall be in
writing, duly signed by the party giving such notice, and shall be delivered,
telecopied (which telecopy shall be followed by notice delivered or mailed by
first class mail) or mailed by first class mail, as follows:
46
(a) if given to the Trust, in care of the Administrators at the Trust's mailing
address set forth below (or such other address as the Trust may give notice of
to the Holders of the Securities):
Fidelity Federal Bancorp Statutory Trust I-2004
c/o Fidelity Federal Bancorp
18 N.W. Fourth Street
Evansville, IN 47708
Attention: Donald R. Neel
Telecopy: 812-429-3995
Telephone: 812-429-0550
(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 Holders of
the Securities):
Wells Fargo Delaware Trust Company
919 North Market Street
Suite 700
Wilmington, DE 19801
Attention: Corporate Trust Administration
Telecopy: 302-575-2006
Telephone: 302-575-2005
(c) if given to the Institutional Trustee, at the Institutional Trustee's
mailing address set forth below (or such other address as the Institutional
Trustee may give notice of to the Holders of the Securities):
Wells Fargo Bank, National Association
919 North Market Street
Suite 700
Wilmington, DE 19801
Attention: Corporate Trust Administration
Telecopy: 302-575-2006
Telephone: 302-575-2005
(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 Trust):
Fidelity Federal Bancorp
18 N.W. Fourth Street
Evansville, IN 47708
Attention: Donald R. Neel
Telecopy: 812-429-3995
Telephone: 812-429-0550
(e) if given to any other Holder, at the address set forth on the books and
records of the Trust.
All such notices shall be deemed to have been given when received in person,
telecopied with receipt confirmed, or mailed by first class mail, postage
prepaid, except that if a notice or other document is refused delivery or cannot
be delivered because of a changed address of which no notice was given, such
47
notice or other document shall be deemed to have been delivered on the date of
such refusal or inability to deliver.
Section 13.2. Governing Law. This Declaration and the rights and obligations of
the parties hereunder shall be governed by and interpreted in accordance with
the law of the State of Delaware and all rights, obligations and remedies shall
be governed by such laws without regard to the principles of conflict of laws of
the State of Delaware or any other jurisdiction that would call for the
application of the law of any jurisdiction other than the State of Delaware.
Section 13.3. Submission to Jurisdiction.
(a) Each of the parties hereto agrees that any suit, action or proceeding
arising out of or based upon this Declaration, or the transactions contemplated
hereby, may be instituted in any of the courts of the State of New York and the
United States District Courts, in each case located in the Borough of Manhattan,
City and State of New York, and further agrees to submit to the jurisdiction of
any competent court in the place of its corporate domicile in respect of actions
brought against it as a defendant. In addition, each such party irrevocably
waives, to the fullest extent permitted by law, any objection which it may now
or hereafter have to the laying of the venue of such suit, action or proceeding
brought in any such court and irrevocably waives any claim that any such suit,
action or proceeding brought in any such court has been brought in an
inconvenient forum and irrevocably waives any right to which it may be entitled
on account of its place of corporate domicile. Each such party hereby
irrevocably waives any and all right to trial by jury in any legal proceeding
arising out of or relating to this Declaration or the transactions contemplated
hereby. Each such party agrees that final judgment in any proceedings brought in
such a court shall be conclusive and binding upon it and may be enforced in any
court to the jurisdiction of which it is subject by a suit upon such judgment.
(b) Each of the Sponsor, the Trustees, the Administrators and the Holder of the
Common Securities irrevocably consents to the service of process on it in any
such suit, action or proceeding by the mailing thereof by registered or
certified mail, postage prepaid, to it at its address given in or pursuant to
Section 13.1 hereof.
(c) To the extent permitted by law, nothing herein contained shall preclude any
party from effecting service of process in any lawful manner or from bringing
any suit, action or proceeding in respect of this Declaration in any other
state, country or place.
Section 13.4. Intention of the Parties. It is the intention of the parties
hereto that the Trust be classified for United States federal income tax
purposes as a grantor trust. The provisions of this Declaration shall be
interpreted to further this intention of the parties.
Section 13.5. 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 13.6. Successors and Assigns. Whenever in this Declaration any of the
parties hereto is named or referred to, the successors and assigns of such party
shall be deemed to be included, and all covenants and agreements in this
Declaration by the Sponsor and the Trustees shall bind and inure to the benefit
of their respective successors and assigns, whether or not so expressed.
Section 13.7. 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.
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Section 13.8. 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 and Administrators to any of
such counterpart signature pages. All of such counterpart signature pages shall
be read as though one, and they shall have the same force and effect as though
all of the signers had signed a single signature page.
49
IN WITNESS WHEREOF, the undersigned have caused this Declaration to be
duly executed as of the day and year first above written.
Wells Fargo Delaware Trust Company,
as Delaware Trustee
By: _____________________________
Name:
Title
Wells Fargo Bank, National Association,
as Institutional Trustee
By: _____________________________
Name:
Title:
Fidelity Federal Bancorp
as Sponsor
By: ______________________________
Name:
Title:
------------------------------
Administrator
------------------------------
Administrator
50
ANNEX I
TERMS OF
FLOATING RATE TRUPS(R) AND
FLOATING RATE COMMON SECURITIES
Pursuant to Section 6.1 of the Amended and Restated Declaration of
Trust, dated as of December 16, 2004 (as amended from time to time, the
"Declaration"), the designation, rights, privileges, restrictions, preferences
and other terms and provisions of the Capital Securities and the Common
Securities are set out below (each capitalized term used but not defined herein
has the meaning set forth in the Declaration):
1. Designation and Number.
(a) Capital Securities. 3,000 Capital Securities of Fidelity Federal
Bancorp Statutory Trust I-2004 (the "Trust"), with an aggregate stated
liquidation amount with respect to the assets of the Trust of Three Million
Dollars ($3,000,000) and a stated liquidation amount with respect to the assets
of the Trust of $1,000 per Capital Security, are hereby designated for the
purposes of identification only as the "Floating Rate TRUPS(R)" (the "Capital
Securities"). Subject to Section 8.2 of the Declaration, the Capital Security
Certificates evidencing the Capital Securities shall be substantially in the
form of Exhibit A-1 to the Declaration, with such changes and additions thereto
or deletions therefrom as may be required by ordinary usage, custom or practice
or to conform to the rules of any stock exchange on which the Capital Securities
are listed, if any.
(b) Common Securities. 93 Common Securities of the Trust (the "Common
Securities") will be evidenced by Common Security Certificates substantially in
the form of Exhibit A-2 to the Declaration, with such changes and additions
thereto or deletions therefrom as may be required by ordinary usage, custom or
practice. In the absence of an Event of Default, the Common Securities will have
an aggregate stated liquidation amount with respect to the assets of the Trust
of Ninety-Three Thousand Dollars ($93,000) and a stated liquidation amount with
respect to the assets of the Trust of $1,000 per Common Security.
2. Distributions. (a) Subject to the occurrence of a Reset Event, distributions
payable on each Security will be payable at a variable per annum rate of
interest, reset quarterly, equal to LIBOR, as determined on the LIBOR
Determination Date for such Distribution Period (as defined herein), plus 2.25%
(the "Coupon Rate") of the stated liquidation amount of $1,000 per Security,
such rate being the rate of interest payable on the Debentures to be held by the
Institutional Trustee. A Reset Event will occur if on any day specified by the
Initial Purchaser, Regional Diversified Funding 2004-II Ltd. or another pooled
trust preferred vehicle becomes the registered owner of the Capital Securities
(such day, the "Reset Date"). Upon the occurrence of a Reset Event, the
applicable LIBOR will be reset on the Reset Date to be equal to the LIBOR
applicable on the newly issued trust preferred capital securities with the same
LIBOR Determination Dates issued by other trust subsidiaries of bank holding
companies or thrift holding companies who issue LIBOR based 30 year floating
rate trust preferred capital securities to Regional Diversified Funding 2004-II
Ltd. or another pooled trust preferred vehicle designated by the Initial
Purchaser. Except as set forth below in respect of an Extension Period,
Distributions in arrears for more than one quarterly period will bear interest
thereon compounded quarterly at the applicable Coupon Rate for each such
quarterly period (to the extent permitted by applicable law). The term
"Distributions" as used herein includes cash distributions, any such compounded
distributions and any Additional Amounts payable on the Debentures unless
otherwise stated. A Distribution is payable only to the extent that payments are
made in respect of the Debentures held by the Institutional Trustee and to the
extent the Institutional Trustee has funds legally available in the Property
Account therefor. The amount of
A-I-1
Distributions payable for any period will be computed for any full quarterly
Distribution Period on the basis of a 360-day year and the actual number of days
elapsed in the relevant Distribution Period; provided, however, that upon the
occurrence of a Special Event redemption pursuant to paragraph 4(a) below the
amounts payable pursuant to this Declaration shall be calculated as set forth in
the definition of Special Redemption Price.
The term "Distribution Period" means the period from and including the
immediately preceding Distribution Payment Date or in the case of the first
Distribution Period, the date of the original issuance of the securities to, but
excluding, the next applicable Distribution Payment Date or in the case of the
last Distribution Period, the date of redemption.
(b) LIBOR for a given Distribution Period shall be determined by the
Calculation Agent in accordance with the following provisions:
(i) Subject to the occurrence of a Reset Event, on the
second LIBOR Business Day (provided, that on such day commercial banks
are open for business (including dealings in foreign currency
deposits) in London (a "LIBOR Banking Day"), and otherwise the next
preceding LIBOR Business Day that is also a LIBOR Banking Day) prior
to March 1, June 1, September 1 and December 1, and as the case may
be, immediately prior to the commencement of such Distribution Period
(except, with respect to the first Distribution Period, LIBOR for such
Distribution Period shall be determined on December 9, 2004) (each
such day, a "LIBOR Determination Date"), LIBOR shall equal the rate,
as obtained by the Calculation Agent, for three-month U.S. Dollar
deposits in Europe which appears on Telerate Page 3750 (as defined in
the International Swaps and Derivatives Association, Inc. 1991
Interest Rate and Currency Exchange Definitions) or such other page as
may replace such Telerate Page 3750, as of 11:00 a.m. (London time) on
such LIBOR Determination Date, as reported by Bloomberg Financial
Markets Commodities News. "LIBOR Business Day" means any day that is
not a Saturday, Sunday or other day on which commercial banking
institutions in New York, New York or Wilmington, Delaware are
authorized or obligated by law or executive order to be closed. If
such rate is superseded on Telerate Page 3750 by a corrected rate
before 12:00 noon (London time) on the same LIBOR Determination Date,
the corrected rate as so substituted will be the applicable LIBOR for
that LIBOR Determination Date.
(ii) If, on any LIBOR Determination Date, such rate does not
appear on Telerate Page 3750 as reported by Bloomberg Financial
Markets Commodities News or such other page as may replace such
Telerate Page 3750, the Calculation Agent shall determine the
arithmetic mean of the offered quotations of the Reference Banks (as
defined below) to leading banks in the London interbank market for
three-month U.S. Dollar deposits in Europe (in an amount determined by
the Calculation Agent) by reference to requests for quotations as of
approximately 11:00 a.m. (London time) on the LIBOR Determination Date
made by the Calculation Agent to the Reference Banks. If, on any LIBOR
Determination Date, at least two of the Reference Banks provide such
quotations, LIBOR shall equal the arithmetic mean of such quotations.
If, on any LIBOR Determination Date, only one or none of the Reference
Banks provides such a quotation, LIBOR shall be deemed to be the
arithmetic mean of the offered quotations that at least two leading
banks in the City of New York (as selected by the Calculation Agent)
are quoting on the relevant LIBOR Determination Date for three-month
U.S. Dollar deposits in Europe at approximately 11:00 a.m. (London
time) in an amount determined by the Calculation Agent. As used
herein, "Reference Banks" means four major banks in the London
interbank market selected by the Calculation Agent.
A-I-2
(iii) If the Calculation Agent is required but is unable to
determine a rate in accordance with at least one of the procedures
provided above, LIBOR for such Distribution Period shall be LIBOR in
effect during the immediately preceding Distribution Period.
(c) All percentages resulting from any calculations on the Securities
will be rounded, if necessary, to the nearest one hundred-thousandth of a
percentage point, with five one-millionths of a percentage point rounded upward
(e.g., 9.876545% (or .09876545) being rounded to 9.87655% (or .0987655)), and
all dollar amounts used in or resulting from such calculation will be rounded to
the nearest cent (with one-half cent being rounded upward).
(d) On each LIBOR Determination Date and the Reset Date the
Calculation Agent shall notify, in writing, the Sponsor and the Paying Agent of
the applicable Coupon Rate in effect for the related Distribution payment
period. The Calculation Agent shall, upon the request of the Holder of any
Securities, provide the Coupon Rate then in effect. All calculations made by the
Calculation Agent in the absence of manifest error shall be conclusive for all
purposes and binding on the Sponsor and the Holders of the Securities. The
Paying Agent shall be entitled to rely on information received from the
Calculation Agent or the Sponsor as to the Coupon Rate. The Sponsor shall, from
time to time, provide any necessary information to the Paying Agent relating to
any original issue discount and interest on the Securities that is included in
any payment and reportable for taxable income calculation purposes.
(e) Distributions on the Securities will be cumulative, will accrue
from the date of original issuance, and will be payable, subject to extension of
Distribution payment periods as described herein, quarterly in arrears on March
16, June 16, September 16 and December 16 of each year, commencing on March 16,
2005 (each, a "Distribution Payment Date"). The Debenture Issuer has the right
under the Indenture to defer payments of interest on the Debentures by extending
the interest payment period for up to 20 consecutive quarterly periods (each, an
"Extension Period") at any time and from time to time on the Debentures, subject
to the conditions described below, during which Extension Period no interest
shall be due and payable. During any Extension Period, interest will continue to
accrue on the Debentures, and interest on such accrued interest (such accrued
interest and interest thereon referred to herein as "Deferred Interest") will
accrue at an annual rate equal to the applicable Coupon Rate in effect for each
such Extension Period, compounded quarterly from the date such Deferred Interest
would have been payable were it not for the Extension Period, to the extent
permitted by law. No Extension Period may end on a date other than a
Distribution Payment Date. At the end of any such Extension Period, the
Debenture Issuer shall pay all Deferred Interest then accrued and unpaid on the
Debentures; provided, however, that no Extension Period may extend beyond the
Maturity Date, Redemption Date or Special Redemption Date and provided, further,
that, during any such Extension Period, the Debenture Issuer may not (i) declare
or pay any dividends or distributions on, or redeem, purchase, acquire, or make
a liquidation payment with respect to, any of the Debenture Issuer's capital
stock or (ii) make any payment due on or repay, repurchase or redeem any debt
securities of the Debenture Issuer that rank pari passu in all respects with or
junior in interest to the Debentures (other than (a) repurchases, redemptions or
other acquisitions of shares of capital stock of the Debenture Issuer (1) in
connection with any employment contract, benefit plan or other similar
arrangement with or for the benefit of one or more employees, officers,
directors or consultants, (2) in connection with a dividend reinvestment or
stockholder stock purchase plan or (3) in connection with the issuance of
capital stock of the Debenture Issuer (or securities convertible into or
exercisable for such capital stock), as consideration in an acquisition
transaction entered into prior to the applicable Extension Period, (b) as a
result of any exchange or conversion of any class or series of the Debenture
Issuer's capital stock (or any capital stock of a subsidiary of the Debenture
Issuer) for any class or series of the Debenture Issuer's capital stock or of
any class or series of the Debenture Issuer's indebtedness for any class or
series of the Debenture Issuer's capital stock, (c) the purchase of fractional
interests in shares of the Debenture Issuer's capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged, (d) any
A-I-3
declaration of a dividend in connection with any stockholder's rights plan, or
the issuance of rights, stock or other property under any stockholder's rights
plan, or the redemption or repurchase of rights pursuant thereto, or (e) any
dividend in the form of stock, warrants, options or other rights where the
dividend stock or the stock issuable upon exercise of such warrants, options or
other rights is the same stock as that on which the dividend is being paid or
ranks pari passu with or junior to such stock). Prior to the termination of any
Extension Period, the Debenture Issuer may further extend such period, provided,
that such period together with all such previous and further consecutive
extensions thereof shall not exceed 20 consecutive quarterly periods, or extend
beyond the Maturity Date, Redemption Date or Special Redemption Date. Upon the
termination of any Extension Period and upon the payment of all Deferred
Interest, the Debenture Issuer may commence a new Extension Period, subject to
the foregoing requirements. No interest or Deferred Interest shall be due and
payable during an Extension Period, except at the end thereof, but Deferred
Interest shall accrue upon each installment of interest that would otherwise
have been due and payable during such Extension Period until such installment is
paid. The deferral of the payment of interest during an Extension Period shall
not defer the payment of any Additional Amounts that may be due. If
Distributions are deferred, the Distributions due shall be paid on the date that
the related Extension Period terminates, or, if such date is not a Distribution
Payment Date, on the immediately following Distribution Payment Date, to Holders
of the Securities as they appear on the books and records of the Trust on the
record date immediately preceding such date. Distributions on the Securities
must be paid on the dates payable (after giving effect to any Extension Period)
to the extent that the Trust has funds legally available for the payment of such
distributions in the Property Account of the Trust. The Trust's funds available
for Distribution to the Holders of the Securities will be limited to payments
received from the Debenture Issuer. The payment of Distributions out of moneys
held by the Trust is guaranteed by the Guarantor pursuant to the Guarantee.
(f) Distributions on the Securities will be payable to the Holders
thereof as they appear on the books and records of the Registrar on the relevant
record dates. The relevant record dates shall be selected by the Administrators,
which dates shall be 15 days before the relevant payment dates. Distributions
payable on any Securities that are not punctually paid on any Distribution
Payment Date, as a result of the Debenture Issuer having failed to make a
payment under the Debentures, as the case may be, when due (taking into account
any Extension Period), will cease to be payable to the Person in whose name such
Securities are registered on the relevant record date, and such defaulted
Distribution will instead be payable to the Person in whose name such Securities
are registered on the special record date or other specified date determined in
accordance with the Indenture. If any Distribution Payment Date falls on a day
that is not a Business Day, then Distributions payable on such date will be made
on the next succeeding Business Day, in each case with the same force and effect
as if made on the applicable Distribution Payment Date.
(g) In the event that there is any money or other property held by or
for the Trust that is not accounted for hereunder, such property shall be
distributed pro rata (as defined herein) among the Holders of the Securities.
3. Liquidation Distribution upon Dissolution. In the event of the
voluntary or involuntary liquidation, dissolution, winding-up or termination of
the Trust (each, a "Liquidation") other than in connection with a redemption of
the Debentures, the Holders of the Securities will be entitled to receive out of
the assets of the Trust available for distribution to Holders of the Securities,
after satisfaction of liabilities to creditors of the Trust (to the extent not
satisfied by the Debenture Issuer), distributions equal to the aggregate of the
stated liquidation amount of $1,000 per Security plus accrued and unpaid
Distributions thereon to the date of payment (such amount being the "Liquidation
Distribution"), unless in connection with such Liquidation, the Debentures in an
aggregate stated principal amount equal to the aggregate stated liquidation
amount of such Securities, with an interest rate equal to the Coupon Rate of,
and bearing accrued and unpaid interest in an amount equal to the accrued and
unpaid Distributions on,
A-I-4
and having the same record date as, such Securities, after paying or making
reasonable provision to pay all claims and obligations of the Trust in
accordance with Section 3808(e) of the Statutory Trust Act, shall be distributed
on a Pro Rata basis to the Holders of the Securities in exchange for such
Securities.
The Sponsor, as the Holder of all of the Common Securities, has the
right at any time, upon receipt of an opinion of nationally recognized tax
counsel that Holders will not recognize any gain or loss for United States
Federal income tax purposes as a result of the distribution of Debentures, to
dissolve the Trust (including without limitation upon the occurrence of a Tax
Event, an Investment Company Event or a Capital Treatment Event), subject to the
receipt by the Debenture Issuer of prior approval from the OTS, if then required
under applicable capital guidelines or policies of the OTS and, after
satisfaction of liabilities to creditors of the Trust, cause the Debentures to
be distributed to the Holders of the Securities on a Pro Rata basis in
accordance with the aggregate stated liquidation amount thereof.
The Trust shall dissolve on the first to occur of (i) December 16,
2039, the expiration of the term of the Trust, (ii) a Bankruptcy Event with
respect to the Sponsor, the Trust or the Debenture Issuer, (iii) (other than in
connection with a merger, consolidation or similar transaction not prohibited by
the Indenture, this Declaration or the Guarantee, as the case may be) the filing
of a certificate of dissolution of the Sponsor or upon the revocation of the
charter of the Sponsor and the expiration of 90 days after the date of
revocation without a reinstatement thereof, (iv) the distribution to the Holders
of the Securities of the Debentures, upon exercise of the right of the Holder of
all of the outstanding Common Securities to dissolve the Trust as described
above, (v) the entry of a decree of a judicial dissolution of the Sponsor or the
Trust, or (vi) the date when all of the Securities shall have been called for
redemption and the amounts necessary for redemption thereof shall have been paid
to the Holders in accordance with the terms of the Securities. As soon as
practicable after the dissolution of the Trust and upon completion of the
winding up of the Trust, the Trust shall terminate upon the filing of a
certificate of cancellation with the Secretary of State of the State of
Delaware.
If a Liquidation of the Trust occurs as described in clause (i), (ii),
(iii) or (v) in the immediately preceding paragraph, the Trust shall be
liquidated by the Institutional Trustee of the Trust as expeditiously as such
Trustee determines to be possible by distributing, after satisfaction of
liabilities to creditors of the Trust as provided by applicable law, to the
Holders of the Securities, the Debentures on a Pro Rata basis to the extent not
satisfied by the Debenture Issuer, unless such distribution is determined by the
Institutional Trustee not to be practical, in which event such Holders will be
entitled to receive out of the assets of the Trust available for distribution to
the Holders, after satisfaction of liabilities to creditors of the Trust to the
extent not satisfied by the Debenture Issuer, an amount equal to the Liquidation
Distribution. An early Liquidation of the Trust pursuant to clause (iv) of the
immediately preceding paragraph shall occur if the Institutional Trustee
determines that such Liquidation is possible by distributing, after satisfaction
of liabilities to creditors of the Trust, to the Holders of the Securities on a
Pro Rata basis, the Debentures, and such distribution occurs.
If, upon any such Liquidation, the Liquidation Distribution can be
paid only in part because the Trust has insufficient assets available to pay in
full the aggregate Liquidation Distribution, then the amounts payable directly
by the Trust on such Capital Securities shall be paid to the Holders of the
Securities on a Pro Rata basis, except that if an Event of Default has occurred
and is continuing, the Capital Securities shall have a preference over the
Common Securities with regard to such distributions.
Upon any such Liquidation of the Trust involving a distribution of the
Debentures, if at the time of such Liquidation, the Capital Securities were
rated by at least one nationally-recognized statistical rating organization, the
Debenture Issuer will use its reasonable best efforts to obtain from at least
one such or other rating organization a rating for the Debentures.
A-I-5
After the date for any distribution of the Debentures upon dissolution
of the Trust, (i) the Securities of the Trust will be deemed to be no longer
outstanding, (ii) any certificates representing the Capital Securities will be
deemed to represent undivided beneficial interests in such of the Debentures as
have an aggregate principal amount equal to the aggregate stated liquidation
amount of, with an interest rate identical to the distribution rate of, and
bearing accrued and unpaid interest equal to accrued and unpaid distributions
on, the Securities until such certificates are presented to the Debenture Issuer
or its agent for transfer or reissuance (and until such certificates are so
surrendered, no payments of interest or principal shall be made to Holders of
Securities in respect of any payments due and payable under the Debentures) and
(iii) all rights of Holders of Securities under the Capital Securities or the
Common Securities, as applicable, shall cease, except the right of such Holders
to receive Debentures upon surrender of certificates representing such
Securities.
4. Redemption and Distribution.
(a) The Debentures will mature on December 16, 2034. The Debentures
may be redeemed by the Debenture Issuer, in whole or in part, on any
Distribution Payment Date on or after December 16, 2009, at the Redemption
Price, upon not less than 30 nor more than 60 days' notice to Holders of such
Debentures. In addition, upon the occurrence and continuation of a Tax Event, an
Investment Company Event or a Capital Treatment Event, the Debentures may be
redeemed by the Debenture Issuer in whole but not in part, at any time within 90
days following the occurrence of such Tax Event, Investment Company Event or
Capital Treatment Event, as the case may be (the "Special Redemption Date"), at
the Special Redemption Price, upon not less than 30 nor more than 60 days'
notice to Holders of the Debentures so long as such Tax Event, Investment
Company Event or Capital Treatment Event, as the case may be, is continuing. In
each case, the right of the Debenture Issuer to redeem the Debentures is subject
to the Debenture Issuer having received prior approval from the OTS, if then
required under applicable capital guidelines or policies of the OTS.
"Tax Event" means the receipt by the Debenture Issuer and the Trust of
an opinion of counsel experienced in such matters to the effect that, as a
result of any amendment to or change (including any announced prospective
change) in the laws or any regulations thereunder of the United States or any
political subdivision or taxing authority thereof or therein, or as a result of
any official administrative pronouncement (including any private letter ruling,
technical advice memorandum, regulatory procedure, notice or announcement)(an
"Administrative Action") or judicial decision interpreting or applying such laws
or regulations, regardless of whether such Administrative Action or judicial
decision is issued to or in connection with a proceeding involving the Debenture
Issuer or the Trust and whether or not subject to review or appeal, which
amendment, clarification, change, Administrative Action or decision is enacted,
promulgated or announced, in each case on or after the date of original issuance
of the Debentures, there is more than an insubstantial risk that: (i) the Trust
is, or will be within 90 days of the date of such opinion, subject to United
States federal income tax with respect to income received or accrued on the
Debentures; (ii) interest payable by the Debenture Issuer on the Debentures is
not, or within 90 days of the date of such opinion, will not be, deductible by
the Debenture Issuer, in whole or in part, for United States federal income tax
purposes; or (iii) the Trust is, or will be within 90 days of the date of such
opinion, subject to more than a de minimis amount of other taxes (including
withholding taxes), duties, assessments or other governmental charges.
"Investment Company Event" means the receipt by the Debenture Issuer
and the Trust of an opinion of counsel experienced in such matters to the effect
that, as a result of a change in law or regulation or written change in
interpretation or application of law or regulation by any legislative body,
court, governmental agency or regulatory authority, there is more than an
insubstantial risk that the Trust is or, within 90 days of the date of such
opinion will be, considered an "investment company" that is required to be
registered under the Investment Company Act, which change or prospective change
A-I-6
becomes effective or would become effective, as the case may be, on or after the
date of the original issuance of the Debentures.
"Capital Treatment Event" means the receipt by the Debenture Issuer
and the Trust of an opinion of counsel experienced in such matters to the effect
that, as a result of (a) any amendment to, or change in, the laws, rules or
regulations of the United States or any political subdivision thereof or
therein, or any rules, guidelines or policies of an applicable regulatory
authority for the Debenture Issuer or (b) any official or administrative
pronouncement or action or decision interpreting or applying such laws, rules or
regulations, which amendment or change is effective or which pronouncement,
action or decision is announced on or after the date of original issuance of the
Debentures, there is more than an insubstantial risk that the Debenture Issuer
will not, within 90 days of the date of such opinion, be entitled to treat an
amount equal to the aggregate Liquidation Amount of the Capital Securities as
"Tier 1 Capital" (or its then equivalent if the Debenture Issuer were subject to
such capital requirement) applied as if the Debenture Issuer (or its successors)
were a bank holding company for purposes of the capital adequacy guidelines of
the Federal Reserve (or any successor regulatory authority with jurisdiction
over bank holding companies), or any capital adequacy guidelines as then in
effect and applicable to the Debenture Issuer; provided, however, that the
distribution of the Debentures in connection with the Liquidation of the Trust
by the Debenture Issuer shall not in and of itself constitute a Capital
Treatment Event unless such Liquidation shall have occurred in connection with a
Tax Event or an Investment Company Event. "Special Event" means any of a Capital
Treatment Event, a Tax Event or an Investment Company Event.
"Redemption Price" means 100% of the principal amount of the
Debentures being redeemed plus accrued and unpaid interest on such Debentures to
the Redemption Date or, in the case of redemption in full at maturity, the
Maturity Date, or, in the case of a redemption due to the occurrence of a
Special Event, to the Special Redemption Date if such Special Redemption Date is
on or after December 16, 2009.
"Special Redemption Price" means (1) if the Special Redemption Date is
before December 16, 2009, the greater of (a) 100% of the principal amount of the
Debentures being redeemed pursuant to Section 10.02 of the Indenture or (b) as
determined by a Quotation Agent, the sum of the present value of the principal
amount payable as part of the Redemption Price with respect to a redemption as
of December 16, 2009, together with the present value of interest payments over
the Remaining Life of such Debentures calculated at a fixed per annum rate of
interest equal to 7.42%, discounted to the Special Redemption Date on a
quarterly basis (assuming a 360-day year consisting of twelve 30-day months) at
the Treasury Rate plus 0.50%, plus, in the case of either (a) or (b), accrued
and unpaid interest on such Debentures to the Special Redemption Date and (2) if
the Special Redemption Date is on or after December 16, 2009, the Redemption
Price for such Special Redemption Date.
"Comparable Treasury Issue" means with respect to any Special
Redemption Date, the United States Treasury security selected by the Quotation
Agent as having a maturity comparable to the Remaining Life that would be
utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of comparable
maturity to the Remaining Life. If no United States Treasury security has a
maturity which is within a period from three months before to three months after
December 16, 2009, the two most closely corresponding United States Treasury
securities shall be used as the Comparable Treasury Issue, and the Treasury Rate
shall be interpolated or extrapolated on a straight-line basis, rounding to the
nearest month using such securities.
"Comparable Treasury Price" means (a) the average of five Reference
Treasury Dealer Quotations for such Special Redemption Date, after excluding the
highest and lowest such Reference Treasury Dealer Quotations, or (b) if the
Quotation Agent obtains fewer than five such Reference Treasury Dealer
Quotations, the average of all such Quotations.
A-I-7
"Primary Treasury Dealer" means a primary United States Government
securities dealer in New York City.
"Quotation Agent" means Citigroup Global Markets Inc. and its
successors; provided, however, that if the foregoing shall cease to be a Primary
Treasury Dealer, the Debenture Issuer shall substitute therefor another Primary
Treasury Dealer.
"Redemption Date" means the date fixed for the redemption of Capital
Securities, which shall be any Distribution Payment Date on or after December
16, 2009 .
"Reference Treasury Dealer" means (i) the Quotation Agent and (ii) any
other Primary Treasury Dealer selected by the Debenture Trustee after
consultation with the Debenture Issuer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Special Redemption Date, the average, as
determined by the Quotation Agent, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Debenture Trustee by such Reference
Treasury Dealer at 5:00 p.m., New York City time, on the third Business Day
preceding such Special Redemption Date.
"Remaining Life" means, with respect to any Debentures the period from
the Special Redemption Date for such Debentures to December 16, 2009.
"Treasury Rate" means (i) the yield, under the heading which
represents the average for the week immediately prior to the date of
calculation, appearing in the most recently published statistical release
designated H.15 (519) or any successor publication which is published weekly by
the Federal Reserve and which establishes yields on actively traded United
States Treasury securities adjusted to constant maturity under the caption
"Treasury Constant Maturities," for the maturity corresponding to the Remaining
Life (if no maturity is within three months before or after the Remaining Life,
yields for the two published maturities most closely corresponding to the
Remaining Life shall be determined and the Treasury Rate shall be interpolated
or extrapolated from such yields on a straight-line basis, rounding to the
nearest month) or (ii) if such release (or any successor release) is not
published during the week preceding the calculation date or does not contain
such yields, the rate per annum equal to the quarterly equivalent yield to
maturity of the Comparable Treasury Issue, calculated using a price for the
Comparable Treasury Issue (expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price for such Special Redemption Date. The
Treasury Rate shall be calculated on the third Business Day preceding the
Special Redemption Date.
(b) Upon repayment at maturity or redemption in whole or in part of
the Debentures (other than following the distribution of the Debentures to the
Holders of the Securities), the proceeds from such repayment or payment shall
concurrently be applied to redeem Pro Rata at the applicable Redemption Price,
Securities having an aggregate liquidation amount equal to the aggregate
principal amount of the Debentures so repaid or redeemed; provided, however,
that holders of such Securities shall be given not less than 30 nor more than 60
days' notice of such redemption (other than at the scheduled maturity of the
Debentures).
(c) If fewer than all the outstanding Securities are to be so
redeemed, the Common Securities and the Capital Securities will be redeemed Pro
Rata and the Capital Securities to be redeemed will be as described in Section
4(e)(ii) below.
A-I-8
(d) The Trust may not redeem fewer than all the outstanding Capital
Securities unless all accrued and unpaid Distributions have been paid on all
Capital Securities for all quarterly Distribution periods terminating on or
before the date of redemption.
(e) Redemption or Distribution Procedures.
(i) Notice of any redemption of, or notice of distribution of
the Debentures in exchange for, the Securities (a
"Redemption/Distribution Notice") will be given by the Trust by mail
to each Holder of Securities to be redeemed or exchanged not fewer
than 30 nor more than 60 days before the date fixed for redemption or
exchange thereof which, in the case of a redemption, will be the date
fixed for redemption of the Debentures. For purposes of the
calculation of the date of redemption or exchange and the dates on
which notices are given pursuant to this Section 4(e)(i), a
Redemption/Distribution Notice shall be deemed to be given on the day
such notice is first mailed by first-class mail, postage prepaid, to
Holders of such Securities. Each Redemption/Distribution Notice shall
be addressed to the Holders of such Securities at the address of each
such Holder appearing on the books and records of the Registrar. No
defect in the Redemption/Distribution Notice or in the mailing thereof
with respect to any Holder shall affect the validity of the redemption
or exchange proceedings with respect to any other Holder.
(ii) In the event that fewer than all the outstanding
Securities are to be redeemed, the Securities to be redeemed shall be
redeemed Pro Rata from each Holder of Capital Securities.
(iii) If the Securities are to be redeemed and the Trust gives
a Redemption/Distribution Notice, which notice may only be issued if
the Debentures are redeemed as set out in this Section 4 (which notice
will be irrevocable), then, provided, that the Institutional Trustee
has a sufficient amount of cash in connection with the related
redemption or maturity of the Debentures, the Institutional Trustee
will pay the relevant Redemption Price to the Holders of such
Securities by check mailed to the address of each such Holder
appearing on the books and records of the Trust on the redemption
date. If a Redemption/Distribution Notice shall have been given and
funds deposited as required, then immediately prior to the close of
business on the date of such deposit, Distributions will cease to
accrue on the Securities so called for redemption and all rights of
Holders of such Securities so called for redemption will cease, except
the right of the Holders of such Securities to receive the applicable
Redemption Price or Special Redemption Price specified in Section
4(a), but without interest on such Redemption Price. If any date fixed
for redemption of Securities is not a Business Day, then payment of
any such Redemption Price or Special Redemption Price payable on such
date will be made on the next succeeding day that is a Business Day
except that, if such Business Day falls in the next calendar year,
such payment will be made on the immediately preceding Business Day,
in each case with the same force and effect as if made on such date
fixed for redemption. If payment of the Redemption Price or Special
Redemption Price in respect of any Securities is improperly withheld
or refused and not paid either by the Trust or by the Debenture Issuer
as guarantor pursuant to the Guarantee, Distributions on such
Securities will continue to accrue at the 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 or Special
Redemption Price. In the event of any redemption of the Capital
Securities issued by the Trust in part, the Trust shall not be
required to (i) issue, register the transfer of or exchange any
Security during a period beginning at the opening of business 15 days
before any selection for redemption of the Capital Securities and
ending at the close of business on the earliest date on which the
relevant notice of redemption is deemed to have been given to all
Holders of the Capital Securities to be so redeemed or (ii) register
A-I-9
the transfer of or exchange any Capital Securities so selected for
redemption, in whole or in part, except for the unredeemed portion of
any Capital Securities being redeemed in part.
(iv) Redemption/Distribution Notices shall be sent by the
Administrators on behalf of the Trust (A) in respect of the Capital
Securities, to the Holders thereof, and (B) in respect of the Common
Securities, to the Holder thereof.
(v) Subject to the foregoing and applicable law (including,
without limitation, United States federal securities laws), and
provided, that the acquiror is not the Holder of the Common Securities
or the obligor under the Indenture, the Sponsor or any of its
subsidiaries may at any time and from time to time purchase
outstanding Capital Securities by tender, in the open market or by
private agreement.
5. Voting Rights - Capital Securities. (a) Except as provided under
Sections 5(b) and 7 and as otherwise required by law and the Declaration, the
Holders of the Capital Securities will have no voting rights. The Administrators
are required to call a meeting of the Holders of the Capital Securities if
directed to do so by Holders of not less than 10% in liquidation amount of the
Capital Securities.
(b) Subject to the requirements of obtaining a tax opinion by the
Institutional Trustee in certain circumstances set forth in the last sentence of
this paragraph, the Holders of a Majority in liquidation amount of the Capital
Securities, voting separately as a class, have the right to direct the time,
method, and place of conducting any proceeding for any remedy available to the
Institutional Trustee, or exercising any trust or power conferred upon the
Institutional Trustee under the Declaration, including the right to direct the
Institutional Trustee, as holder of the Debentures, to (i) exercise the remedies
available under the Indenture as the holder of the Debentures, (ii) waive any
past default that is waivable under the Indenture, (iii) exercise any right to
rescind or annul a declaration that the principal of all the Debentures shall be
due and payable or (iv) consent on behalf of all the Holders of the Capital
Securities to any amendment, modification or termination of the Indenture or the
Debentures where such consent shall be required; provided, however, that, where
a consent or action under the Indenture would require the consent or act of the
holders of greater than a simple majority in principal amount of Debentures (a
"Super Majority") affected thereby, the Institutional Trustee may only give such
consent or take such action at the written direction of the Holders of not less
than the proportion in liquidation amount of the Capital Securities outstanding
which the relevant Super Majority represents of the aggregate principal amount
of the Debentures outstanding. If the Institutional Trustee fails to enforce its
rights under the Debentures after the Holders of a Majority in liquidation
amount of such Capital Securities have so directed the Institutional Trustee, to
the fullest extent permitted by law, a Holder of the Capital Securities may
institute a legal proceeding directly against the Debenture Issuer to enforce
the Institutional Trustee's rights under the Debentures without first
instituting any legal proceeding against the Institutional Trustee or any other
person or entity. Notwithstanding the foregoing, if an Event of Default has
occurred and is continuing and such event is attributable to the failure of the
Debenture Issuer to pay interest or principal on the Debentures on the date the
interest or principal is payable (or in the case of redemption, the redemption
date), then a Holder of record of the Capital Securities may directly institute
a proceeding for enforcement of payment, on or after the respective due dates
specified in the Debentures, to such Holder directly of the principal of or
interest on the Debentures having an aggregate principal amount equal to the
aggregate liquidation amount of the Capital Securities of such Holder. The
Institutional Trustee shall notify all Holders of the Capital Securities of any
default actually known to the Institutional Trustee with respect to the
Debentures unless (x) such default has been cured prior to the giving of such
notice or (y) the Institutional Trustee determines in good faith that the
withholding of such notice is in the interest of the Holders of such Capital
Securities, except where the default relates to the payment of principal of or
interest on any of the Debentures. Where such default constitutes an Indenture
Event of Default, such notice shall state that such Indenture Event of Default
also constitutes an Event of Default hereunder.
A-I-10
Except with respect to directing the time, method and place of conducting a
proceeding for a remedy, the Institutional Trustee shall not take any of the
actions described in clause (i), (ii) or (iii) above unless the Institutional
Trustee has obtained an opinion of tax counsel to the effect that, as a result
of such action, the Trust will not be classified as other than a grantor trust
for United States federal income tax purposes.
In the event the consent of the Institutional Trustee, as the holder
of the Debentures is required under the Indenture with respect to any amendment,
modification or termination of the Indenture, the Institutional Trustee shall
request the written direction of the Holders of the Securities with respect to
such amendment, modification or termination and shall vote with respect to such
amendment, modification or termination as directed by a Majority in liquidation
amount of the Securities voting together as a single class; provided, however,
that where a consent under the Indenture would require the consent of a Super
Majority, the Institutional Trustee may only give such consent at the written
direction of the Holders of not less than the proportion in liquidation amount
of such Securities outstanding which the relevant Super Majority represents of
the aggregate principal amount of the Debentures outstanding. The Institutional
Trustee shall not take any such action in accordance with the written directions
of the Holders of the Securities unless the Institutional Trustee has obtained
an opinion of tax counsel to the effect that, as a result of such action, the
Trust will not be classified as other than a grantor trust for United States
federal income tax purposes.
A waiver of an Indenture Event of Default will constitute a waiver of
the corresponding Event of Default hereunder. Any required approval or direction
of Holders of the Capital Securities may be given at a separate meeting of
Holders of the Capital Securities convened for such purpose, at a meeting of all
of the Holders of the Securities in the Trust or pursuant to written consent.
The Institutional Trustee will cause a notice of any meeting at which Holders of
the Capital Securities are entitled to vote, or of any matter upon which action
by written consent of such Holders is to be taken, to be mailed to each Holder
of record of the Capital Securities. Each such notice will include a statement
setting forth the following information (i) the date of such meeting or the date
by which such action is to be taken, (ii) a description of any resolution
proposed for adoption at such meeting on which such Holders are entitled to vote
or of such matter upon which written consent is sought and (iii) instructions
for the delivery of proxies or consents. No vote or consent of the Holders of
the Capital Securities will be required for the Trust to redeem and cancel
Capital Securities or to distribute the Debentures in accordance with the
Declaration and the terms of the Securities.
Notwithstanding that Holders of the Capital Securities are entitled to
vote or consent under any of the circumstances described above, any of the
Capital Securities that are owned by the Sponsor or any Affiliate of the Sponsor
shall not entitle the Holder thereof to vote or consent and shall, for purposes
of such vote or consent, be treated as if such Capital Securities were not
outstanding.
In no event will Holders of the Capital Securities have the right to
vote to appoint, remove or replace the Administrators, which voting rights are
vested exclusively in the Sponsor as the Holder of all of the Common Securities
of the Trust. Under certain circumstances as more fully described in the
Declaration, Holders of Capital Securities have the right to vote to appoint,
remove or replace the Institutional Trustee and the Delaware Trustee.
6. Voting Rights - Common Securities. (a) Except as provided under
Sections 6(b), 6(c) and 7 and as otherwise required by law and the Declaration,
the Common Securities will have no voting rights.
(b) The Holders of the Common Securities are entitled, in accordance
with Article IV of the Declaration, to vote to appoint, remove or replace any
Administrators.
A-I-11
(c) Subject to Section 6.7 of the Declaration and only after each
Event of Default (if any) with respect to the Capital Securities has been cured,
waived or otherwise eliminated and subject to the requirements of the second to
last sentence of this paragraph, the Holders of a Majority in liquidation amount
of the Common Securities, voting separately as a class, may direct the time,
method, and place of conducting any proceeding for any remedy available to the
Institutional Trustee, or exercising any trust or power conferred upon the
Institutional Trustee under the Declaration, including (i) directing the time,
method, place of conducting any proceeding for any remedy available to the
Debenture Trustee, or exercising any trust or power conferred on the Debenture
Trustee with respect to the Debentures, (ii) waiving any past default and its
consequences that are waivable under the Indenture, or (iii) exercising any
right to rescind or annul a declaration that the principal of all the Debentures
shall be due and payable, provided, however, that, where a consent or action
under the Indenture would require a Super Majority, the Institutional Trustee
may only give such consent or take such action at the written direction of the
Holders of not less than the proportion in liquidation amount of the Common
Securities which the relevant Super Majority represents of the aggregate
principal amount of the Debentures outstanding. Notwithstanding this Section
6(c), the Institutional Trustee shall not revoke any action previously
authorized or approved by a vote or consent of the Holders of the Capital
Securities. Other than with respect to directing the time, method and place of
conducting any proceeding for any remedy available to the Institutional Trustee
or the Debenture Trustee as set forth above, the Institutional Trustee shall not
take any action described in clause (i), (ii) or (iii) above, unless the
Institutional Trustee has obtained an opinion of tax counsel to the effect that
for the purposes of United States federal income tax the Trust will not be
classified as other than a grantor trust on account of such action. If the
Institutional Trustee fails to enforce its rights under the Declaration, to the
fullest extent permitted by law any Holder of the Common Securities may
institute a legal proceeding directly against any Person to enforce the
Institutional Trustee's rights under the Declaration, without first instituting
a legal proceeding against the Institutional Trustee or any other Person.
Any approval or direction of Holders of the Common Securities may be
given at a separate meeting of Holders of the Common Securities convened for
such purpose, at a meeting of all of the Holders of the Securities in the Trust
or pursuant to written consent. The Administrators will cause a notice of any
meeting at which Holders of the Common Securities are entitled to vote, or of
any matter upon which action by written consent of such Holders is to be taken,
to be mailed to each Holder of the Common Securities. Each such notice will
include a statement setting forth (i) the date of such meeting or the date by
which such action is to be taken, (ii) a description of any resolution proposed
for adoption at such meeting on which such Holders are entitled to vote or of
such matter upon which written consent is sought and (iii) instructions for the
delivery of proxies or consents.
No vote or consent of the Holders of the Common Securities will be
required for the Trust to redeem and cancel Common Securities or to distribute
the Debentures in accordance with the Declaration and the terms of the
Securities.
7. Amendments to Declaration and Indenture. (a) In addition to any
requirements under Section 11.1 of the Declaration, if any proposed amendment to
the Declaration provides for, or the Trustees otherwise propose to effect, (i)
any action that would adversely affect the powers, preferences or special rights
of the Securities, whether by way of amendment to the Declaration or otherwise,
or (ii) the Liquidation of the Trust, other than as described in Section 7.1 of
the Declaration, then the Holders of outstanding Securities, voting together as
a single class, will be entitled to vote on such amendment or proposal and such
amendment or proposal shall not be effective except with the approval of the
Holders of not less than a Majority in liquidation amount of the Securities
affected thereby; provided, however, if any amendment or proposal referred to in
clause (i) above would adversely affect only the Capital Securities or only the
Common Securities, then only the affected class will be entitled to vote on such
A-I-12
amendment or proposal and such amendment or proposal shall not be effective
except with the approval of a Majority in liquidation amount of such class of
Securities.
(b) In the event the consent of the Institutional Trustee as the
holder of the Debentures is required under the Indenture with respect to any
amendment, modification or termination of the Indenture or the Debentures, the
Institutional Trustee shall request the written direction of the Holders of the
Securities with respect to such amendment, modification or termination and shall
vote with respect to such amendment, modification, or termination as directed by
a Majority in liquidation amount of the Securities voting together as a single
class; provided, however, that where a consent under the Indenture would require
a Super Majority, the Institutional Trustee may only give such consent at the
written direction of the Holders of not less than the proportion in liquidation
amount of the Securities which the relevant Super Majority represents of the
aggregate principal amount of the Debentures outstanding.
(c) Notwithstanding the foregoing, no amendment or modification may be
made to the Declaration if such amendment or modification would (i) cause the
Trust to be classified for purposes of United States federal income taxation as
other than a grantor trust, (ii) reduce or otherwise adversely affect the powers
of the Institutional Trustee or (iii) cause the Trust to be deemed an
"investment company" which is required to be registered under the Investment
Company Act.
(d) Notwithstanding any provision of the Declaration, the right of any
Holder of the Capital Securities to receive payment of distributions and other
payments upon redemption or otherwise, on or after their respective due dates,
or to institute a suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of such
Holder. For the protection and enforcement of the foregoing provision, each and
every Holder of the Capital Securities shall be entitled to such relief as can
be given either at law or equity.
8. Pro Rata. A reference in these terms of the Securities to any
payment, distribution or treatment as being "Pro Rata" shall mean pro rata to
each Holder of the Securities according to the aggregate liquidation amount of
the Securities held by the relevant Holder in relation to the aggregate
liquidation amount of all Securities outstanding unless, in relation to a
payment, an Event of Default has occurred and is continuing, in which case any
funds available to make such payment shall be paid first to each Holder of the
Capital Securities Pro Rata according to the aggregate liquidation amount of the
Capital Securities held by the relevant Holder relative to the aggregate
liquidation amount of all Capital Securities outstanding, and only after
satisfaction of all amounts owed to the Holders of the Capital Securities, to
each Holder of the Common Securities Pro Rata according to the aggregate
liquidation amount of the Common Securities held by the relevant Holder relative
to the aggregate liquidation amount of all Common Securities outstanding.
9. Ranking. The Capital Securities rank pari passu with, and payment
thereon shall be made Pro Rata with, the Common Securities except that, where an
Event of Default has occurred and is continuing, the rights of Holders of the
Common Securities to receive payment of Distributions and payments upon
liquidation, redemption and otherwise are subordinated to the rights of the
Holders of the Capital Securities with the result that no payment of any
Distribution on, or Redemption Price or Special Redemption Price of, any Common
Security, and no other payment on account of redemption, liquidation or other
acquisition of Common Securities, shall be made unless payment in full in cash
of all accumulated and unpaid Distributions on all outstanding Capital
Securities for all distribution periods terminating on or prior thereto, or in
the case of payment of the Redemption Price or Special Redemption Price the full
amount of such Redemption Price or Special Redemption Price on all outstanding
Capital Securities then called for redemption, shall have been made or provided
for, and all funds immediately available to the Institutional Trustee shall
A-I-13
first be applied to the payment in full in cash of all Distributions on, or the
Redemption Price or Special Redemption Price of, the Capital Securities then due
and payable.
10. Acceptance of Guarantee and Indenture. Each Holder of the Capital
Securities and the Common Securities, by the acceptance of such Securities,
agrees to the provisions of the Guarantee, including the subordination
provisions therein and to the provisions of the Indenture.
11. No Preemptive Rights. The Holders of the Securities shall have no,
and the issuance of the Securities is not subject to, preemptive or similar
rights to subscribe for any additional securities.
12. Miscellaneous. These terms constitute a part of the Declaration.
The Sponsor will provide a copy of the Declaration, the Guarantee and the
Indenture to a Holder without charge on written request to the Sponsor at its
principal place of business.
A-I-14
EXHIBIT A-1
FORM OF CAPITAL SECURITY CERTIFICATE
[FORM OF FACE OF SECURITY]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR ANY OTHER
APPLICABLE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS SECURITY BY ITS
ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY ONLY
(A) TO THE DEBENTURE ISSUER OR THE TRUST, (B) PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON THE HOLDER REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE
IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) TO A "NON
U.S.-PERSON" IN AN "OFFSHORE TRANSACTION" PURSUANT TO REGULATION S UNDER THE
SECURITIES ACT, (D) PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT TO AN "ACCREDITED INVESTOR" WITHIN THE MEANING OF
SUBPARAGRAPH (a) (1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT
IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF AN
"ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR
OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE DEBENTURE
ISSUER'S AND THE TRUST'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER
PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM IN
ACCORDANCE WITH THE AMENDED AND RESTATED DECLARATION OF TRUST, A COPY OF WHICH
MAY BE OBTAINED FROM THE DEBENTURE ISSUER OR THE TRUST. THE HOLDER OF THIS
SECURITY BY ITS ACCEPTANCE HEREOF AGREES THAT IT WILL COMPLY WITH THE FOREGOING
RESTRICTIONS.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES, REPRESENTS AND
WARRANTS THAT IT WILL NOT ENGAGE IN HEDGING TRANSACTIONS INVOLVING THIS SECURITY
UNLESS SUCH TRANSACTIONS ARE IN COMPLIANCE WITH THE SECURITIES ACT.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF ALSO AGREES, REPRESENTS AND
WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT, INDIVIDUAL RETIREMENT ACCOUNT OR
OTHER PLAN OR ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), (EACH A "PLAN"), OR AN ENTITY
WHOSE UNDERLYING ASSETS INCLUDE "PLAN ASSETS" BY REASON OF ANY PLAN'S INVESTMENT
IN THE ENTITY AND NO PERSON INVESTING "PLAN ASSETS" OF ANY PLAN MAY ACQUIRE OR
HOLD THIS SECURITY OR ANY INTEREST THEREIN, UNLESS SUCH PURCHASER OR HOLDER IS
ELIGIBLE FOR THE
A-1-1
EXEMPTIVE RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF LABOR PROHIBITED TRANSACTION
CLASS EXEMPTION 96-23, 95-60, 91-38, 90-1 OR 84-14 OR ANOTHER APPLICABLE
EXEMPTION OR ITS PURCHASE AND HOLDING OF THIS SECURITY IS NOT PROHIBITED BY
SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE WITH RESPECT TO SUCH PURCHASE
OR HOLDING. ANY PURCHASER OR HOLDER OF THIS SECURITY OR ANY INTEREST THEREIN
WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING THEREOF THAT
EITHER (i) IT IS NOT AN EMPLOYEE BENEFIT PLAN WITHIN THE MEANING OF SECTION 3(3)
OF ERISA, OR A PLAN TO WHICH SECTION 4975 OF THE CODE IS APPLICABLE, A TRUSTEE
OR OTHER PERSON ACTING ON BEHALF OF AN EMPLOYEE BENEFIT PLAN OR PLAN, OR ANY
OTHER PERSON OR ENTITY USING THE ASSETS OF ANY EMPLOYEE BENEFIT PLAN OR PLAN TO
FINANCE SUCH PURCHASE, OR (ii) SUCH PURCHASE WILL NOT RESULT IN A PROHIBITED
TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE FOR WHICH
THERE IS NO APPLICABLE STATUTORY OR ADMINISTRATIVE EXEMPTION.
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND
TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS MAY BE REQUIRED BY THE
AMENDED AND RESTATED DECLARATION OF TRUST TO CONFIRM THAT THE TRANSFER COMPLIES
WITH THE FOREGOING RESTRICTIONS.
THIS SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING A
LIQUIDATION AMOUNT OF NOT LESS THAN $100,000 AND MULTIPLES OF $1,000 IN EXCESS
THEREOF. ANY ATTEMPTED TRANSFER OF THIS SECURITY IN A BLOCK HAVING A LIQUIDATION
AMOUNT OF LESS THAN $100,000 SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT
WHATSOEVER. ANY SUCH PURPORTED TRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDER
OF THIS SECURITY FOR ANY PURPOSE, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF
DISTRIBUTIONS ON THIS SECURITY, AND SUCH PURPORTED TRANSFEREE SHALL BE DEEMED TO
HAVE NO INTEREST WHATSOEVER IN THIS SECURITY.
A-1-2
Certificate Number P-1 Number of Capital Securities [_______]
CUSIP NO [___________]
Certificate Evidencing Capital Securities
of
Fidelity Federal Bancorp Statutory Trust I-2004
Floating Rate TRUPS(R)
(liquidation amount $1,000 per Capital Security)
Fidelity Federal Bancorp Statutory Trust I-2004, a statutory trust
created under the laws of the State of Delaware (the "Trust"), hereby certifies
that [______________] (the "Holder") is the registered owner of [_______]
capital securities of the Trust representing undivided beneficial interests in
the assets of the Trust, designated the Floating Rate TRUPS(R) (liquidation
amount $1,000 per Capital Security) (the "Capital Securities"). Subject to the
Declaration (as defined below), the Capital Securities are transferable on the
books and records of the Trust, in person or by a duly authorized attorney, upon
surrender of this Certificate duly endorsed and in proper form for transfer. The
Capital Securities represented hereby are issued pursuant to, and the
designation, rights, privileges, restrictions, preferences and other terms and
provisions of the Capital Securities shall in all respects be subject to, the
provisions of the Amended and Restated Declaration of Trust of the Trust, dated
as of December 16, 2004, among Donald R. Neel and Mark A. Isaac, as
Administrators, Wells Fargo Delaware Trust Company, as Delaware Trustee, Wells
Fargo Bank, National Association, as Institutional Trustee, Fidelity Federal
Bancorp, as Sponsor, and the holders from time to time of undivided beneficial
interests in the assets of the Trust, including the designation of the terms of
the Capital Securities as set forth in Annex I to the Declaration, as the same
may be amended from time to time (the "Declaration"). Capitalized terms used
herein but not defined shall have the meaning given them in the Declaration. The
Holder is entitled to the benefits of the Guarantee to the extent provided
therein. The Sponsor will provide a copy of the Declaration, the Guarantee, and
the Indenture to the Holder without charge upon written request to the Sponsor
at its principal place of business.
By acceptance of this Security, the Holder is bound by the Declaration
and is entitled to the benefits thereunder.
By acceptance of this Security, the Holder agrees to treat, for United
States federal income tax purposes, the Debentures as indebtedness and the
Capital Securities as evidence of beneficial ownership in the Debentures.
This Capital Security is governed by, and shall be construed in
accordance with, the laws of the State of Delaware, without regard to principles
of conflict of laws.
A-1-3
IN WITNESS WHEREOF, the Trust has duly executed this certificate.
Fidelity Federal Bancorp Statutory Trust I-2004
By:________________________________
Name:
Title: Administrator
Dated: ___________________________
CERTIFICATE OF AUTHENTICATION
This is one of the Capital Securities referred to in the
within-mentioned Declaration.
Wells Fargo Bank, National Association,
not in its individual capacity but solely as the
Institutional Trustee
By:_______________________________
Authorized Officer
Dated: ___________________________
A-1-4
[FORM OF REVERSE OF SECURITY]
Subject to the occurrence of a Reset Event, distributions payable on
each Capital Security will be payable at a variable per annum rate of interest,
reset quarterly, equal to LIBOR (as defined in the Declaration) plus 2.25% (the
"Coupon Rate") of the stated liquidation amount of $1,000 per Capital Security,
such rate being the rate of interest payable on the Debentures to be held by the
Institutional Trustee. A Reset Event will occur if on any day specified by the
Initial Purchaser, Regional Diversified Funding 2004-II Ltd. or another pooled
trust preferred vehicle becomes the registered owner of the Capital Securities
(such day, the "Reset Date"). Upon the occurrence of a Reset Event, the
applicable LIBOR will be reset on the Reset Date to be equal to the LIBOR
applicable on the newly issued trust preferred capital securities with the same
LIBOR Determination Dates issued by other trust subsidiaries of bank holding
companies or thrift holding companies who issue LIBOR based 30 year floating
rate trust preferred capital securities to Regional Diversified Funding 2004-II
Ltd. or another pooled trust preferred vehicle designated by the Initial
Purchaser. Except as set forth below in respect of an Extension Period,
Distributions in arrears for more than one quarterly period will bear interest
thereon compounded quarterly at the applicable Coupon Rate for each such
quarterly period (to the extent permitted by applicable law). The term
"Distributions" as used herein includes cash distributions, any such compounded
distributions and any Additional Amounts payable on the Debentures unless
otherwise stated. A Distribution is payable only to the extent that payments are
made in respect of the Debentures held by the Institutional Trustee and to the
extent the Institutional Trustee has funds legally available in the Property
Account therefor. The amount of Distributions payable for any period will be
computed for any full quarterly Distribution Period on the basis of a 360-day
year and the actual number of days elapsed in the relevant Distribution Period.
Except as otherwise described below, Distributions on the Capital
Securities will be cumulative, will accrue from the date of original issuance
and will be payable quarterly in arrears on March 16, June 16, September 16 and
December 16 of each year, commencing on March 16, 2005, (each, a "Distribution
Payment Date"). The Debenture Issuer has the right under the Indenture to defer
payments of interest on the Debentures by extending the interest payment period
for up to 20 consecutive quarterly periods (each, an "Extension Period") at any
time and from time to time on the Debentures, subject to the conditions
described below, during which Extension Period no interest shall be due and
payable. During any Extension Period, interest will continue to accrue on the
Debentures, and interest on such accrued interest (such accrued interest and
interest thereon referred to herein as "Deferred Interest") will accrue at an
annual rate equal to the Coupon Rate in effect for each such Extension Period,
compounded quarterly from the date such Deferred Interest would have been
payable were it not for the Extension Period, to the extent permitted by law. No
Extension Period may end on a date other than a Distribution Payment Date. At
the end of any such Extension Period, the Debenture Issuer shall pay all
Deferred Interest then accrued and unpaid on the Debentures; provided, however,
that no Extension Period may extend beyond the Maturity Date, Redemption Date or
Special Redemption Date. Prior to the termination of any Extension Period, the
Debenture Issuer may further extend such period, provided, that such period
together with all such previous and further consecutive extensions thereof shall
not exceed 20 consecutive quarterly periods, or extend beyond the Maturity Date,
Redemption Date or Special Redemption Date. Upon the termination of any
Extension Period and upon the payment of all Deferred Interest, the Debenture
Issuer may commence a new Extension Period, subject to the foregoing
requirements. No interest or Deferred Interest shall be due and payable during
an Extension Period, except at the end thereof, but Deferred Interest shall
accrue upon each installment of interest that would otherwise have been due and
payable during such Extension Period until such installment is paid. The
deferral of the payment of interest during an Extension Period shall not defer
the payment of any Additional Amounts that may be due. If Distributions are
deferred, the Distributions due shall be paid on the date that the related
Extension Period terminates to Holders of the Securities as they appear on the
books and records of the Trust on the record date immediately preceding such
date. Distributions on the Securities must be paid on the dates payable (after
giving effect to any Extension Period) to the extent that the Trust has funds
legally available for the payment of such distributions in the Property Account
of the Trust. The Trust's funds available for Distribution to the Holders of the
A-1-5
Securities will be limited to payments received from the Debenture Issuer. The
payment of Distributions out of moneys held by the Trust is guaranteed by the
Guarantor pursuant to the Guarantee.
The Capital Securities shall be redeemable as provided in the
Declaration.
A-1-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Capital
Security Certificate to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee),
and irrevocably appoints
as agent to transfer this Capital Security Certificate on the books of the
Trust. The agent may substitute another to act for it, him or her.
Date:
Signature:
(Sign exactly as your name appears on the other side of this Capital Security
Certificate)
Signature Guarantee:(1)
- --------
(1) Signature must be guaranteed by an "eligible guarantor institution" that is
a bank, stockbroker, savings and loan association or credit union meeting the
requirements of the Security registrar, which requirements include membership or
participation in the Securities Transfer Agents Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Security
registrar in addition to, or in substitution for, STAMP, all in accordance with
the Securities Exchange Act of 1934, as amended.
A-1-7
EXHIBIT A-2
FORM OF COMMON SECURITY CERTIFICATE
THIS COMMON SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES LAWS
AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT
TO AN EXEMPTION FROM REGISTRATION.
EXCEPT AS SET FORTH IN SECTION 8.1(b) OF THE DECLARATION (AS DEFINED BELOW),
THIS SECURITY MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED.
A-2-1
Certificate Number C-1 Number of Common Securities 93
Certificate Evidencing Common Securities
of
Fidelity Federal Bancorp Statutory Trust I-2004
Fidelity Federal Bancorp Statutory Trust I-2004, a statutory trust
created under the laws of the State of Delaware (the "Trust"), hereby certifies
that Fidelity Federal Bancorp (the "Holder") is the registered owner of 93
common securities of the Trust representing undivided beneficial interests in
the assets of the Trust (liquidation amount $1,000 per Common Security)(the
"Common Securities"). The Common Securities represented hereby are issued
pursuant to, and the designation, rights, privileges, restrictions, preferences
and other terms and provisions of the Common Securities shall in all respects be
subject to, the provisions of the Amended and Restated Declaration of Trust of
the Trust, dated as of December 16, 2004, among Donald R. Neel and Mark A.
Isaac, as Administrators, Wells Fargo Delaware Trust Company, as Delaware
Trustee, Wells Fargo Bank, National Association, as Institutional Trustee, the
Holder, as Sponsor, and the holders from time to time of undivided beneficial
interests in the assets of the Trust, including the designation of the terms of
the Common Securities as set forth in Annex I to the Declaration, as the same
may be amended from time to time (the "Declaration"). Capitalized terms used
herein but not defined shall have the meaning given them in the Declaration. The
Sponsor will provide a copy of the Declaration and the Indenture to the Holder
without charge upon written request to the Sponsor at its principal place of
business.
As set forth in the Declaration, when an Event of Default has occurred
and is continuing, the rights of Holders of Common Securities to payment in
respect of Distributions and payments upon Liquidation, redemption or otherwise
are subordinated to the rights of payment of Holders of the Capital Securities.
By acceptance of this Certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance of this Certificate, the Holder agrees to treat, for
United States federal income tax purposes, the Debentures as indebtedness and
the Common Securities as evidence of undivided beneficial ownership in the
Debentures.
This Common Security is governed by, and shall be construed in
accordance with, the laws of the State of Delaware, without regard to principles
of conflict of laws.
A-2-2
IN WITNESS WHEREOF, the Trust has executed this certificate this ___
day of ____, 2004.
Fidelity Federal Bancorp Statutory Trust I-2004
By:______________________________
Name:
Title: Administrator
A-2-3
[FORM OF REVERSE OF SECURITY]
Subject to the occurrence of a Reset Event, distributions payable on
each Common Security will be identical in amount to the Distributions payable on
each Capital Security, which is at a variable per annum rate of interest, reset
quarterly, equal to LIBOR (as defined in the Declaration) plus 2.25% (the
"Coupon Rate") of the stated liquidation amount of $1,000 per Capital Security,
such rate being the rate of interest payable on the Debentures to be held by the
Institutional Trustee. A Reset Event will occur if on any day specified by the
Initial Purchaser, Regional Diversified Funding 2004-II Ltd. or another pooled
trust preferred vehicle becomes the registered owner of the Capital Securities
(such day, the "Reset Date"). Upon the occurrence of a Reset Event, the
applicable LIBOR will be reset on the Reset Date to be equal to the LIBOR
applicable on the newly issued trust preferred capital securities with the same
LIBOR Determination Dates issued by other trust subsidiaries of bank holding
companies or thrift holding companies who issue LIBOR based 30 year floating
rate trust preferred capital securities to Regional Diversified Funding 2004-II
Ltd. or another pooled trust preferred vehicle designated by the Initial
Purchaser. Except as set forth below in respect of an Extension Period,
Distributions in arrears for more than one quarterly period will bear interest
thereon compounded quarterly at the applicable Coupon Rate for each such
quarterly period (to the extent permitted by applicable law). The term
"Distributions" as used herein includes cash distributions, any such compounded
distributions and any Additional Amounts payable on the Debentures unless
otherwise stated. A Distribution is payable only to the extent that payments are
made in respect of the Debentures held by the Institutional Trustee and to the
extent the Institutional Trustee has funds legally available in the Property
Account therefor. The amount of Distributions payable for any period will be
computed for any full quarterly Distribution Period on the basis of a 360-day
year and the actual number of days elapsed in the relevant Distribution Period.
Except as otherwise described below, Distributions on the Common
Securities will be cumulative, will accrue from the date of original issuance
and will be payable quarterly in arrears on March 16, June 16, September 16 and
December 16 of each year, commencing on March 16, 2005, (each, a "Distribution
Payment Date"). The Debenture Issuer has the right under the Indenture to defer
payments of interest on the Debentures by extending the interest payment period
for up to 20 consecutive quarterly periods (each, an "Extension Period") at any
time and from time to time on the Debentures, subject to the conditions
described below, during which Extension Period no interest shall be due and
payable. During any Extension Period, interest will continue to accrue on the
Debentures, and interest on such accrued interest (such accrued interest and
interest thereon referred to herein as "Deferred Interest") will accrue at an
annual rate equal to the Coupon Rate in effect for each such Extension Period,
compounded quarterly from the date such Deferred Interest would have been
payable were it not for the Extension Period, to the extent permitted by law. No
Extension Period may end on a date other than a Distribution Payment Date. At
the end of any such Extension Period, the Debenture Issuer shall pay all
Deferred Interest then accrued and unpaid on the Debentures; provided, however,
that no Extension Period may extend beyond the Maturity Date, Redemption Date or
Special Redemption Date. Prior to the termination of any Extension Period, the
Debenture Issuer may further extend such period, provided, that such period
together with all such previous and further consecutive extensions thereof shall
not exceed 20 consecutive quarterly periods, or extend beyond the Maturity Date,
Redemption Date or Special Redemption Date. Upon the termination of any
Extension Period and upon the payment of all Deferred Interest, the Debenture
Issuer may commence a new Extension Period, subject to the foregoing
requirements. No interest or Deferred Interest shall be due and payable during
an Extension Period, except at the end thereof, but Deferred Interest shall
accrue upon each installment of interest that would otherwise have been due and
payable during such Extension Period until such installment is paid. The
deferral of the payment of interest during an Extension Period shall not defer
the payment of any Additional Amounts that may be due. If Distributions are
deferred, the Distributions due shall be paid on the date that the related
Extension Period terminates to Holders of the Securities as they appear on the
books and records of the Trust on the record date immediately preceding such
A-2-4
date. Distributions on the Securities must be paid on the dates payable (after
giving effect to any Extension Period) to the extent that the Trust has funds
legally available for the payment of such distributions in the Property Account
of the Trust. The Trust's funds legally available for Distribution to the
Holders of the Securities will be limited to payments received from the
Debenture Issuer. The payment of Distributions out of moneys held by the Trust
is guaranteed by the Guarantor pursuant to the Guarantee.
The Common Securities shall be redeemable as provided in the
Declaration.
A-2-5
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Common
Security Certificate to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee),
and irrevocably appoints as agent to transfer this Common Security Certificate
on the books of the Trust. The agent may substitute another to act for him or
her.
Date:
Signature:
(Sign exactly as your name appears on the other side of this Common Security
Certificate)
Signature Guarantee:(1)
- ----------
(1) Signature must be guaranteed by an "eligible guarantor institution" that is
a bank, stockbroker, savings and loan association or credit union, meeting the
requirements of the Security registrar, which requirements include membership or
participation in the Securities Transfer Agents Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Security
registrar in addition to, or in substitution for, STAMP, all in accordance with
the Securities Exchange Act of 1934, as amended.
A-2-6
EXHIBIT B
FORM OF TRANSFEREE CERTIFICATE
(UNLESS EXHIBIT C APPLIES)
----------, [ ]
Fidelity Federal Bancorp
Fidelity Federal Bancorp Statutory Trust I-2004
18 N.W. Fourth Street
Evansville, IN 47708
Re: Purchase of $[ ] stated liquidation amount of Floating Rate TRUPS(R)
(the "Capital Securities") of Fidelity Federal Bancorp Statutory Trust
I-2004
--------------------------------------------------------------------
Ladies and Gentlemen:
Reference is hereby made to the Amended and Restated Declaration of
Trust of Fidelity Federal Bancorp Statutory Trust I-2004, dated as of December
16, 2004, as amended from time to time (the "Declaration"), among Donald R. Neel
and Mark A. Isaac, as Administrators, Wells Fargo Delaware Trust Company, as
Delaware Trustee, Wells Fargo Bank, National Association, as Institutional
Trustee, Fidelity Federal Bancorp, as Sponsor, and the holders from time to time
of undivided beneficial interests in the assets of Fidelity Federal Bancorp
Statutory Trust I-2004. Capitalized terms used but not defined herein shall have
the meanings given them in the Declaration.
In connection with our purchase of the Capital Securities we confirm
that:
1. We understand that the Floating Rate TRUPS(R) (the "Capital
Securities") of Fidelity Federal Bancorp Statutory Trust I-2004 (the "Trust")
(including the guarantee (the "Guarantee") of Fidelity Federal Bancorp (the
"Company") executed in connection therewith) and the Floating Rate Junior
Subordinated Debt Securities due 2034 of the Company (the "Subordinated Debt
Securities") (the Capital Securities, the Guarantee and the Subordinated Debt
Securities together being referred to herein as the "Offered Securities"), have
not been registered under the Securities Act of 1933, as amended (the
"Securities Act"), and may not be offered or sold except as permitted in the
following sentence. We agree on our own behalf and on behalf of any investor
account for which we are purchasing the Capital Securities that, if we decide to
offer, sell or otherwise transfer any such Capital Securities, such offer, sale
or transfer will be made only (a) to the Company or the Trust, (b) pursuant to
Rule 144A under the Securities Act, to a person we reasonably believe is a
qualified institutional buyer under Rule 144A (a "QIB") that purchases for its
own account or for the account of a QIB and to whom notice is given that the
transfer is being made in reliance on Rule 144A, (c) to a "Non-U.S. Person" in
an "offshore transaction" pursuant to Regulation S under the Securities Act, (d)
pursuant to an exemption from registration, to an "accredited investor" within
the meaning of subparagraph (a) (1), (2), (3) or (7) of Rule 501 under the
Securities Act that is acquiring Capital Securities for its own account or for
the account of such an accredited investor for investment purposes and not with
a view to, or for offer or sale in connection with, any distribution thereof in
violation of the Securities Act, or (e) pursuant to another available exemption
from the registration requirements of the Securities Act, and in each of the
foregoing cases in accordance with any applicable state securities laws and any
requirements of law that govern the disposition of our property. The foregoing
restrictions on resale will not apply subsequent to the date on which, in the
written opinion of counsel, the Capital Securities are not "restricted
securities" within the meaning of Rule 144 under the Securities Act. If any
resale or other transfer of the Capital Securities is proposed to be made
pursuant to clause (d) or (e) above, the transferor shall deliver a letter from
B-1
the transferee substantially in the form of this letter to the Institutional
Trustee as Transfer Agent, which shall provide as applicable, among other
things, that the transferee is an "accredited investor" within the meaning of
subparagraph (a)(1), (2), (3) or (7) of Rule 501 under the Securities Act that
is acquiring such Securities for investment purposes and not for distribution in
violation of the Securities Act. We acknowledge on our behalf and on behalf of
any investor account for which we are purchasing Securities that the Trust and
the Company reserve the right prior to any offer, sale or other transfer
pursuant to clause (d) or (e) to require the delivery of any opinion of counsel,
certifications and/or other information satisfactory to the Trust and the
Company. We understand that the certificates for any Capital Security that we
receive will bear a legend substantially to the effect of the foregoing.
2. We are an "accredited investor" within the meaning of subparagraph
(a) (1), (2), (3) or (7) of Rule 501 under the Securities Act purchasing for our
own account or for the account of such an "accredited investor," and we are
acquiring the Capital Securities for investment purposes and not with view to,
or for offer or sale in connection with, any distribution in violation of the
Securities Act, and we have such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of our
investment in the Capital Securities, and we and any account for which we are
acting are each able to bear the economic risks of our or its investment.
3. We are a sophisticated institutional investor, have knowledge and
experience in financial matters and are capable of independently evaluating the
merits and risks of our investment decision with respect to the Capital
Securities, and we have conducted, to the extent we deemed necessary, an
independent investigation of such matters, as, in our judgment, is necessary for
us to make an informed investment decision with respect to the acquisition of an
interest in the Capital Securities.
4. We are acquiring the Capital Securities purchased by us for our own
account (or for one or more accounts as to each of which we exercise sole
investment discretion and have authority to make, and do make, the statements
contained in this letter) and not with a view to any distribution of the Capital
Securities, subject, nevertheless, to the understanding that the disposition of
our property will at all times be and remain within our control.
5. In the event that we purchase any Capital Securities, we will
acquire such Capital Securities having an aggregate stated liquidation amount of
not less than $100,000, for our own account and for each separate account for
which we are acting.
6. We acknowledge that we either (A) are not a fiduciary of a pension,
profit-sharing or other employee benefit plan subject to the Employee Retirement
Income Security Act of 1974, as amended ("ERISA") (a "Plan"), or an entity whose
assets include "plan assets" by reason of any Plan's investment in the entity
and are not purchasing the Capital Securities on behalf of or with "plan assets"
by reason of any Plan's investment in the entity and are not purchasing the
Capital Securities on behalf of or with "plan assets" of any Plan or (B) are
eligible for the exemptive relief available under one or more of the following
prohibited transaction class exemptions ("PTCEs") issued by the U.S. Department
of Labor: PTCE 96-23, 95-60, 91-38, 90-1 or 84-14.
7. We acknowledge that the Trust and the Company and others will rely
upon the truth and accuracy of the foregoing acknowledgments, representations,
warranties and agreements and agree that if any of the acknowledgments,
representations, warranties and agreements deemed to have been made by our
purchase of the Capital Securities are no longer accurate, we shall promptly
notify the Initial Purchaser. If we are acquiring any Capital Securities as a
fiduciary or agent for one or more investor accounts, we represent that we have
sole discretion with respect to each such investor account and that we have full
power to make the foregoing acknowledgments, representations and agreement on
behalf of each such investor account. You are irrevocably authorized to produce
this letter or a copy hereof to any interested party in any administrative or
legal proceeding or official inquiry with respect to the matters covered hereby.
B-2
(Name of Purchaser)
By:
Date:
Upon transfer, the Capital Securities would be registered in the name
of the new beneficial owner as follows.
Name:
Address:
Taxpayer ID Number:
B-3
EXHIBIT C
FORM OF TRANSFEROR CERTIFICATE
TO BE EXECUTED FOR QIBs OR REGULATION S TRANSFEREES
----------, [ ]
Fidelity Federal Bancorp
Fidelity Federal Bancorp Statutory Trust I-2004
18 N.W. Fourth Street
Evansville, IN 47708
Re: Purchase of $[ ] stated liquidation amount of Floating Rate TRUPS(R)
(the "Capital Securities") of Fidelity Federal Bancorp Statutory Trust
I-2004
--------------------------------------------------------------------
Reference is hereby made to the Amended and Restated Declaration of
Trust of Fidelity Federal Bancorp Statutory Trust I-2004, dated as of December
16, 2004, as amended from time to time (the "Declaration"), among Donald R. Neel
and Mark A. Isaac, as Administrators, Wells Fargo Delaware Trust Company, as
Delaware Trustee, Wells Fargo Bank, National Association, as Institutional
Trustee, Fidelity Federal Bancorp, as Sponsor, and the holders from time to time
of undivided beneficial interests in the assets of Fidelity Federal Bancorp
Statutory Trust I-2004. Capitalized terms used but not defined herein shall have
the meanings given them in the Declaration.
This letter relates to $[_______________] aggregate liquidation amount
of Capital Securities which are held in the name of [name of transferor] (the
"Transferor").
In accordance with Section 8.2(b) of the Declaration, the Transferor
does hereby certify that such Capital Securities are being transferred in
accordance with the transfer restrictions set forth in the Capital Securities
and:
________ Rule 144A under the Securities Act ("Rule 144A"), to a
transferee that the Transferor reasonably believes is
purchasing the Capital Securities for its own account or an
account with respect to which the transferee exercises sole
investment discretion and the transferee and any such
account is a "qualified institutional buyer" within the
meaning of Rule 144A, in a transaction meeting the
requirements of Rule 144A and in accordance with applicable
securities laws of any state of the United States or any
other jurisdiction; or
________ Regulation S under the Securities Act ("Regulation S"), to a
person that is not a "U.S. Person" for purposes of
Regulation S in an "offshore transaction" for purposes of
Regulation S.
C-1
We acknowledge that the Trust and the Sponsor and others will rely
upon the truth and accuracy of the foregoing acknowledgments, representations,
warranties and agreements. You are irrevocably authorized to produce this letter
or a copy hereof to any interested party in any administrative or legal
proceeding or official inquiry with respect to the matters covered hereby.
(Name of Transferor)
By:
Name:
Title:
Date:
C-2