EXECUTION COPY
EXHIBIT 4.4
AMENDED AND RESTATED
DECLARATION OF TRUST
among
CENTRAL FIDELITY BANKS, INC., as Depositor,
THE BANK OF NEW YORK,
as Property Trustee,
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee,
and
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
Dated as of April 23, 1997
CENTRAL FIDELITY CAPITAL TRUST I
TABLE OF CONTENTS
Page
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ARTICLE I
Defined Terms
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SECTION 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II
Continuation of the Trust
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SECTION 2.01. Name. . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 2.02. Office of the Delaware Trustee;
Principal Place of Business . . . . . . . . . . . . 15
SECTION 2.03. Organizational
Expenses. . . . . . . . . . . . . . . . . . . . . . 15
SECTION 2.04. Issuance of the Capital Securities. . . . . . . . . . 15
SECTION 2.05. Issuance of the Common Securities;
Subscription and Purchase of
Junior Subordinated Debt
Securities. . . . . . . . . . . . . . . . . . . . . 16
SECTION 2.06. Declaration of Trust. . . . . . . . . . . . . . . . . 16
SECTION 2.07. Authorization to Enter into Certain
Transactions. . . . . . . . . . . . . . . . . . . . 17
SECTION 2.08. Assets of Trust . . . . . . . . . . . . . . . . . . . 22
SECTION 2.09. Title to Trust Property . . . . . . . . . . . . . . . 22
ARTICLE III
Payment Account
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SECTION 3.01. Payment Account . . . . . . . . . . . . . . . . . . . 22
ARTICLE IV
Distributions; Redemption
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SECTION 4.01. Distributions . . . . . . . . . . . . . . . . . . . . 23
SECTION 4.02. Redemption. . . . . . . . . . . . . . . . . . . . . . 24
SECTION 4.03. Subordination of Common
Securities. . . . . . . . . . . . . . . . . . . . . 27
SECTION 4.04. Payment Procedures. . . . . . . . . . . . . . . . . . 28
SECTION 4.05. Tax Returns and Reports . . . . . . . . . . . . . . . 28
SECTION 4.06. Payment of Taxes, Duties, etc. of
The Trust . . . . . . . . . . . . . . . . . . . . . 29
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SECTION 4.07. Payments under Indenture. . . . . . . . . . . . . . . 29
ARTICLE V
Trust Securities Certificates
-----------------------------
SECTION 5.01. Initial Ownership . . . . . . . . . . . . . . . . . . 29
SECTION 5.02. Trust Securities Certificates . . . . . . . . . . . . 29
SECTION 5.03. Execution and Delivery of Trust
Securities Certificates . . . . . . . . . . . . . . 30
SECTION 5.04 Global Capital Security . . . . . . . . . . . . . . . 30
SECTION 5.05. Registration of Transfer and
Exchange Generally; Certain
Transfers and Exchanges; Capital
Securities Certificates;
Securities Act Legends. . . . . . . . . . . . . . . 33
SECTION 5.06. Mutilated, Destroyed, Lost or Stolen
Trust Securities Certificates . . . . . . . . . . . 39
SECTION 5.07. Persons Deemed Securityholders. . . . . . . . . . . . 40
SECTION 5.08. Access to List of Securityholders'
Names and Addresses . . . . . . . . . . . . . . . . 40
SECTION 5.09. Maintenance of Office or Agency;
Transfer Agent. . . . . . . . . . . . . . . . . . . 40
SECTION 5.10. Appointment of Paying Agent . . . . . . . . . . . . . 41
SECTION 5.11. Ownership of Common Securities by
Depositor . . . . . . . . . . . . . . . . . . . . . 42
SECTION 5.12. Notices to Clearing Agency. . . . . . . . . . . . . . 42
SECTION 5.13. Rights of Securityholders . . . . . . . . . . . . . . 42
ARTICLE VI
Acts of Securityholders; Meetings; Voting
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SECTION 6.01. Limitations on Capital
Securityholders' Voting Rights. . . . . . . . . . . 45
SECTION 6.02. Notice of Meetings. . . . . . . . . . . . . . . . . . 46
SECTION 6.03. Meetings of Securityholders . . . . . . . . . . . . . 47
SECTION 6.04. Voting Rights . . . . . . . . . . . . . . . . . . . . 47
SECTION 6.05. Proxies, etc. . . . . . . . . . . . . . . . . . . . . 47
SECTION 6.06. Securityholder Action by Written
Consent . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 6.07. Record Date for Voting and Other
Purposes. . . . . . . . . . . . . . . . . . . . . . 48
SECTION 6.08. Acts of Securityholders . . . . . . . . . . . . . . . 48
SECTION 6.09. Inspection of Records . . . . . . . . . . . . . . . . 50
Page
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ARTICLE VII
Representations and Warranties
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SECTION 7.01. Representations and Warranties of
the Property Trustee and the
Delaware Trustee. . . . . . . . . . . . . . . . . . 50
SECTION 7.02. Representations and Warranties of
Depositor . . . . . . . . . . . . . . . . . . . . . 51
ARTICLE VIII
The Trustees
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SECTION 8.01. Certain Duties and Responsibilities . . . . . . . . . 52
SECTION 8.02. Events of Default Notices; Deferral
of Interest Payment Notices . . . . . . . . . . . . 54
SECTION 8.03. Certain Rights of Property
Trustee . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 8.04. Not Responsible for Recitals. . . . . . . . . . . . . 57
SECTION 8.05. May Hold Securities . . . . . . . . . . . . . . . . . 58
SECTION 8.06. Compensation, Indemnity, Fees . . . . . . . . . . . . 58
SECTION 8.07. Corporate Property Trustee Required;
Eligibility of Trustees . . . . . . . . . . . . . . 60
SECTION 8.08. Conflicting Interests . . . . . . . . . . . . . . . . 60
SECTION 8.09. Co-Trustees and Separate Trustee. . . . . . . . . . . 60
SECTION 8.10. Resignation and Removal; Appointment
of Successor. . . . . . . . . . . . . . . . . . . . 62
SECTION 8.11. Acceptance of Appointment by
Successor . . . . . . . . . . . . . . . . . . . . . 64
SECTION 8.12. Merger, Conversion, Consolidation or
Succession to Business. . . . . . . . . . . . . . . 65
SECTION 8.13. Preferential Collection of Claims
Against Depositor or Trust. . . . . . . . . . . . . 66
SECTION 8.14. Reports by Property Trustee . . . . . . . . . . . . . 67
SECTION 8.15. Reports to the Property Trustee . . . . . . . . . . . 67
SECTION 8.16. Evidence of Compliance with
Conditions Precedent. . . . . . . . . . . . . . . . 67
SECTION 8.17. Number of Trustees. . . . . . . . . . . . . . . . . . 68
SECTION 8.18. Delegation of Power . . . . . . . . . . . . . . . . . 68
Page
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ARTICLE IX
Termination, Liquidation and Merger
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SECTION 9.01. Termination Upon Expiration Date;
Termination Upon Special Event. . . . . . . . . . . 69
SECTION 9.02. Early Termination . . . . . . . . . . . . . . . . . . 69
SECTION 9.03. Termination . . . . . . . . . . . . . . . . . . . . . 69
SECTION 9.04. Liquidation . . . . . . . . . . . . . . . . . . . . . 70
SECTION 9.05. Mergers, Consolidations,
Amalgamations or Replacements of
the Trust . . . . . . . . . . . . . . . . . . . . . 72
ARTICLE X
Miscellaneous Provisions
------------------------
SECTION 10.01. Limitation of Rights of
Securityholders . . . . . . . . . . . . . . . . . . 73
SECTION 10.02. Liability of the Depositor. . . . . . . . . . . . . . 74
SECTION 10.03. Amendment . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 10.04. Separability. . . . . . . . . . . . . . . . . . . . . 76
SECTION 10.05. Governing Law . . . . . . . . . . . . . . . . . . . . 76
SECTION 10.06. Payments Due on Non-Business Day. . . . . . . . . . . 76
SECTION 10.07. Successors. . . . . . . . . . . . . . . . . . . . . . 76
SECTION 10.08. Headings. . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 10.09. Reports, Notices and Demands. . . . . . . . . . . . . 76
SECTION 10.10. Agreement Not to Petition . . . . . . . . . . . . . . 77
SECTION 10.11. Trust Indenture Act; Conflict with
Trust Indenture Act . . . . . . . . . . . . . . . . 78
SECTION 10.12. Acceptance of Terms of Declaration
of Trust, Guarantee and
Indenture . . . . . . . . . . . . . . . . . . . . . 78
SECTION 10.13. Execution in Counterparts . . . . . . . . . . . . . . 79
CENTRAL FIDELITY CAPITAL TRUST I
Certain Sections of this Declaration of Trust relating
to Sections 310 through 318 of the Trust Indenture Act of 1939:
Trust Indenture Declaration of
Act Section Trust Section
- ---------------- --------------
ss.310(a)(1) ............................................ 8.07
(a)(2)............................................. 8.07
(a)(3)............................................. 8.09
(a)(4)............................................. 2.07(a)(ii)
(b)................................................ 8.08
ss.311(a)................................................ 8.13
(b)................................................ 8.13
ss.312(a)................................................ 5.08
(b)................................................ 5.08
(c)................................................ 5.08
ss.313(a)................................................ 8.14(a)
(a)(4)............................................. 8.14(b)
(b)(1)............................................. 8.14(a)
(b)(2)............................................. 8.14(b)
(c)................................................ 10.09
(d)................................................ 8.14(c)
ss.314(a)................................................ 8.15
(b)................................................ Not Applicable
(c)(1)............................................. 8.16
(c)(2)............................................. 8.16
(c)(3)............................................. Not Applicable
(d)................................................ Not Applicable
(e)................................................ 1.01, 8.16
8.01(a),
ss.315(a)................................................ 8.03(a)
(b)................................................ 8.02, 10.10
(c)................................................ 8.01(a)
(d)................................................ 8.01, 8.03
(e)................................................ Not Applicable
ss.316(a)................................................ Not Applicable
(a)(1)(A).......................................... Not Applicable
(a)(1)(B).......................................... Not Applicable
(a)(2)............................................. Not Applicable
(b)................................................ 5.13
(c)................................................ 6.07
ss.317(a)(1)............................................. Not Applicable
(a)(2)............................................. Not Applicable
(b)................................................ 5.10
ss.318(a)................................................ 10.11
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Note: This reconciliation and tie shall not, for any purpose, be deemed
to be a part of the Declaration of Trust.
AMENDED AND RESTATED DECLARATION OF TRUST, dated as of
April 23, 1997, among (i) CENTRAL FIDELITY BANKS, INC., a
Virginia corporation (including any successors or assigns, the
"Depositor"), (ii) THE BANK OF NEW YORK, a New York banking
corporation, as property trustee (in such capacity, the
"Property Trustee" and, in its separate corporate capacity and
not in its capacity as Property Trustee, the "Bank"), (iii) THE
BANK OF NEW YORK (Delaware), a Delaware banking corporation, as
Delaware trustee (the "Delaware Trustee"), (iv) Charles W.
Tysinger, an individual, John T. Percy, Jr., an individual, and
William N. Stoyko, an individual, each of whose address is c/o
Central Fidelity Banks, Inc. (each an "Administrative Trustee"
and collectively the "Administrative Trustees") (the Property
Trustee, the Delaware Trustee and the Administrative Trustees
are referred to collectively herein as the "Trustees") and (v)
the several Holders, as hereinafter defined.
W I T N E S S E T H :
WHEREAS the Depositor, the Delaware Trustee and the Administrative
Trustees have heretofore duly declared and established a business trust pursuant
to the Delaware Business Trust Act by entering into a certain Declaration of
Trust, dated as of April 2, 1997 (the "Original Declaration of Trust"), and by
the execution and filing by the Delaware Trustee and the Administrative Trustees
with the Secretary of State of the State of Delaware of the Certificate of
Trust, filed on April 2, 1997 (the "Certificate of Trust"); and attached as
Exhibit A; and
WHEREAS the Depositor, the Delaware Trustee and the Administrative
Trustees desire to amend and restate the Original Declaration of Trust in its
entirety as set forth herein to provide for, among other things (i) the issuance
and sale of the Common Securities by the Trust to the Depositor, (ii) the
issuance and sale of the floating rate Capital Securities (the "Initial Capital
Securities") by the Trust pursuant to the Purchase Agreement, (iii) the issuance
pursuant to a registered exchange for the Initial Capital Securities of floating
rate Capital Securities (the "Exchange Capital Securities") (each of the Initial
Capital
2
Securities and the Exchange Capital Securities hereinafter referred to as the
"Capital Securities"), (iv) the acquisition by the Trust from the Depositor of
all of the right, title and interest in the Junior Subordinated Debt Securities
and (v) the appointment of The Bank of New York, a New York banking corporation
(in such capacity, the "Property Trustee" and, in its separate corporate
capacity and not in its capacity as Property Trustee, the "Bank");
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the sufficiency of
which is hereby acknowledged, each party, for the benefit of the other parties
and for the benefit of the Securityholders, as hereinafter defined, hereby
amends and restates the Original Declaration of Trust in its entirety and agrees
as follows:
ARTICLE I
Defined Terms
-------------
SECTION 1.01. Definitions. For all purposes of this Declaration of
------------
Trust, except as otherwise expressly provided or unless the context otherwise
requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(b) all other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may
be, of this Declaration of Trust;
(d) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Declaration of Trust as a whole and not to any
particular Article, Section or other subdivision; and
(e) all references to the date the Capital Securities were originally
issued shall refer to the date the Initial Capital Securities were
originally issued.
3
"Act" has the meaning specified in Section 6.08.
"Additional Distribution" has the meaning specified in Section
4.01(c).
"Administrative Action" has the meaning specified in the definition of
"Tax Event" in this Section 1.01.
"Administrative Trustee" means each of Charles W. Tysinger, John T.
Percy, Jr. and William N. Stoyko, solely in such Person's capacity as
Administrative Trustee of the Trust continued hereunder and not in such Person's
individual capacity, or such Administrative Trustee's successor in interest in
such capacity, or any successor trustee appointed as herein provided.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Capital Security or beneficial interest therein,
the rules and procedures of the depositary for such Capital Security, in each
case to the extent applicable to such transaction and as in effect from time to
time.
"Bank" has the meaning specified in the preamble to this Declaration
of Trust.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having jurisdiction in
the premises adjudging such Person a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjudication
or composition of or in respect of such Person under any applicable federal
or state bankruptcy, insolvency, reorganization or other similar law, or
appointing a receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of such Person or of any substantial part of its
property or ordering the winding up or liquidation
4
of its affairs, and the continuance of any such decree or order unstayed
and in effect for a period of 60 consecutive days; or
(b) the institution by such Person of proceedings to be adjudicated a
bankrupt or insolvent, or the consent by it to the institution of
bankruptcy or insolvency proceedings against it, or the filing by it of a
petition or answer or consent seeking reorganization or relief under any
applicable federal or state bankruptcy, insolvency, reorganization or other
similar law, or the consent by it to the filing of any such petition or to
the appointment of a receiver, liquidator, assignee, trustee, sequestrator
(or similar official) of such Person or of any substantial part of its
property or the making by it of an assignment for the benefit of creditors,
or the admission by it in writing of its inability to pay its debts
generally as they become due and its willingness to be adjudicated a
bankrupt, or the taking of corporate action by such Person in furtherance
of any such action.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Depositor to have been duly adopted
by the Depositor's Board of Directors, or such committee of the Board of
Directors or officers of the Depositor to which authority to act on behalf of
the Board of Directors has been delegated, and to be in full force and effect on
the date of such certification, and delivered to the Trustees.
"Business Day" means a day other than (a) a Saturday or Sunday, (b) a
day on which banking institutions in The City of New York are authorized or
required by law or executive order to remain closed or (c) a day on which the
Property Trustee's Corporate Trust Office or the Corporate Trust Office of the
Debenture Trustee is closed for business.
"Capital Securities" means each of the Initial Capital Securities to
be issued on the date hereof and the Exchange Capital Securities (as defined in
the Registration Agreement), treated together as a single class of securities,
each representing an undivided beneficial interest in the assets of the Trust,
having a Liquidation Amount of $1,000 per Capital Security and having the rights
provided therefor in this Declaration of Trust, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
5
"Capital Securities Certificate" means a certificate evidencing
ownership of Capital Securities, substantially in the form attached as Exhibit
B.
"Capital Securityholder" means a Person in whose name a Capital
Security or Capital Securities is registered in the Securities Register; and any
such Person shall be deemed to be a beneficial owner within the meaning of the
Delaware Business Trust Act.
"Capital Treatment Event" has the meaning specified in Section 1.01 of
the Indenture.
"Cede" has the meaning specified in Section 5.02(b).
"Certificate of Trust" has the meaning specified in the preamble to
this Declaration of Trust.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Securities Exchange Act of 1934. The
Depository Trust Company shall be the initial Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Date" has the meaning specified in the Purchase Agreement.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, or,
if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Common Securities" means the floating rate Common Securities, each
representing an undivided beneficial interest in the assets of the Trust, having
a Liquidation Amount of $1,000 and having the rights provided therefor in this
Declaration of Trust, including the right to receive Distributions and a
Liquidation Distribution as provided herein.
6
"Common Securities Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached as Exhibit C.
"Corporate Trust Office" means the principal office of the Property
Trustee located in New York City which at the time of the execution of this
Declaration of Trust is located at 101 Barclay Street, Floor 21 West, New York,
New York 10286.
"Declaration of Trust" means this Amended and Restated Declaration of
Trust, as the same may be modified, amended or supplemented in accordance with
the applicable provisions hereof, including all exhibits hereto, including, for
all purposes of this Amended and Restated Declaration of Trust, the provisions
of the Trust Indenture Act that are deemed to be a part of and govern this
Amended and Restated Declaration of Trust and any modification, amendment or
supplement of either, respectively.
"Debenture Event of Default" means an "Event of Default" as defined in
the Indenture.
"Debenture Trustee" means The Bank of New York, a New York banking
corporation and any successor.
"Definitive Capital Securities Certificate" means Capital Securities
Certificates issued in certificated, fully registered form.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. (S)(S) 3801, et seq., as it may be amended from time
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to time.
"Delaware Trustee" means the corporation identified as the "Delaware
Trustee" in the preamble to this Declaration of Trust solely in its capacity as
Delaware Trustee of the Trust continued hereunder and not in its individual
capacity, or its successor in interest in such capacity, or any successor
trustee appointed as herein provided.
"Depositor" has the meaning specified in the preamble to this
Declaration of Trust.
"Determination Date" has the meaning specified in Section 4.01(a).
"Distribution Date" has the meaning specified in Section 4.01(a).
7
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.01.
"Early Termination Event" has the meaning specified in Section 9.02.
"Event of Default" means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) the occurrence of a Debenture Event of Default; or
(b) default by the Trust in the payment of any Distribution when it
becomes due and payable, and continuation of such default for a period of
30 days; or
(c) default by the Trust in the payment of any Redemption Price of any
Trust Security when it becomes due and payable; or
(d) default in the performance, or breach, in any material respect, of
any covenant or warranty of the Trustees in this Declaration of Trust
(other than a covenant or warranty, a default in the performance or breach
of which is addressed in clause (b) or (c) above), and continuation of such
default or breach for a period of 60 days after there has been given, by
registered or certified mail, to the defaulting Trustee or Trustees by the
Holders of at least 25% in aggregate Liquidation Amount of the Outstanding
Capital Securities, a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice of
Default" hereunder; or
(e) the occurrence of a Bankruptcy Event with respect to the Property
Trustee and the failure by the Depositor to appoint a successor Property
Trustee within 60 days thereof.
"Exchange Capital Securities" has the meaning specified in the second
paragraph of this Agreement.
"Expiration Date" has the meaning specified in Section 9.01.
8
"Federal Reserve" means the Board of Governors of the Federal Reserve
System.
"Global Capital Securities" means a beneficial interest in the Capital
Securities, ownership and transfers of which shall be made through book entries
by a Clearing Agency as described in Section 5.11.
"Global Capital Securities Certificate" means a certificate evidencing
ownership of Global Capital Securities, substantially in the form attached as
Exhibit B.
"Guarantee" means the Guarantee Agreement executed and delivered by
the Depositor and The Bank of New York, as trustee, contemporaneously with the
execution and delivery of this Declaration of Trust, for the benefit of the
holders of the Trust Securities, as amended from time to time.
"Holder" or "Securityholder" means a Person in whose name a Trust
Security or Trust Securities is registered in the Securities Register; any such
Person shall be deemed to be a beneficial owner of such Trust Securities within
the meaning of the Delaware Business Trust Act; provided, however, that in
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determining whether the Holders of the requisite amount of Capital Securities
have voted on any matter provided for in this Declaration of Trust, then for the
purpose of any such determination, so long as Definitive Capital Securities
Certificates have not been issued, the term Securityholders or Holders as used
herein shall refer to the Owners.
"Indenture" means the Junior Subordinated Indenture, dated as of April
23, 1997, between the Depositor and the Debenture Trustee, as trustee, (as
amended or supplemented from time to time) relating to the issuance of the
Junior Subordinated Debt Securities.
"Initial Capital Securities" has the meaning specified in the second
paragraph of this Agreement.
"Initial Purchasers" means Salomon Brothers Inc and Keefe, Bruyette &
Woods, Inc.
"Institutional Accredited Investor" means an institutional accredited
investor within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D
under the Securities Act.
"Junior Subordinated Debt Securities" means $103,093,000 the aggregate
principal amount of the Depositor's Floating Rate Junior Subordinated Debt
9
Securities due April 15, 2027, issued pursuant to the Indenture.
"Junior Subordinated Debt Securities Redemption Date" means, with
respect to any Junior Subordinated Debt Securities to be redeemed under the
Indenture, the date fixed for redemption under the Indenture or pursuant to an
Officers' Certificate in accordance with the terms of the Indenture.
"Letter of Representations" means the agreement among the Trust, the
Property Trustee and The Depository Trust Company ("DTC"), as the initial
Clearing Agency, dated as of the Closing Date.
"LIBOR" has the meaning, with respect to quarterly interest periods,
specified in Section 2.02 of the Indenture.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security interest
or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of Trust
Securities, Trust Securities having a Liquidation Amount equal to that portion
of the principal amount of Junior Subordinated Debt Securities to be
contemporaneously redeemed in accordance with the Indenture allocated to the
Trust Securities based upon their relative Liquidation Amounts and the proceeds
of which will be used to pay the Redemption Price of such Trust Securities, and
(b) with respect to a distribution of Junior Subordinated Debt Securities to
Holders in connection with a dissolution or liquidation of the Trust, Junior
Subordinated Debt Securities having a principal amount equal to the Liquidation
Amount of the Trust Securities of the Holder to whom such Junior Subordinated
Debt Securities are distributed.
"Liquidation Amount" means the stated amount of $1,000 per Trust
Security.
"Liquidation Date" means the date on which Junior Subordinated Debt
Securities are to be distributed to Holders of Trust Securities in connection
with a termination and liquidation of the Trust pursuant to Section 9.04(a).
"Liquidation Distribution" has the meaning specified in Section
9.04(d).
10
"1940 Act" means the Investment Company Act of 1940.
"Officers' Certificate" means a certificate signed by the Chairman and
Chief Executive Officer, President or a Vice President, and by the Treasurer, an
Associate Treasurer, an Assistant Treasurer, the Controller, the Secretary or an
Assistant Secretary, of the Depositor, and delivered to the appropriate Trustee.
One of the officers signing an Officers' Certificate given pursuant to Section
8.16 shall be the principal executive, financial or accounting officer of the
Depositor. Any Officers' Certificate delivered with respect to compliance with
a condition or covenant provided for in this Declaration of Trust shall include:
(a) a statement that each officer signing the Officers' Certificate
has read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer 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.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Trust, the Property Trustee or the Depositor, but not an
employee of any thereof, and which opinion shall be reasonably acceptable to the
Property Trustee.
"Original Declaration of Trust" has the meaning specified in the
preamble to this Declaration of Trust.
"Other Capital Securities" means the Capital Securities sold by the
Initial Purchasers in the initial offering contemplated by the Purchase
Agreement to Institutional Accredited Investors in reliance on an exemption from
the registration requirements of the Securities Act other than Rule 144A.
11
"Outstanding", with respect to Capital Securities, means, as of the
date of determination, all Capital Securities theretofore executed and delivered
under this Declaration of Trust, except;
------
(a) Capital Securities theretofore canceled by the Property Trustee
or delivered to the Property Trustee for cancellation;
(b) Capital Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Property Trustee
or any Paying Agent for the benefit of the Holders of such Capital
Securities; provided that if such Capital Securities are to be redeemed,
--------
notice of such redemption has been duly given pursuant to this Declaration
of Trust; and
(c) Capital Securities which have been paid or in exchange for or in
lieu of which other Capital Securities have been executed and delivered
pursuant to Sections 5.02, 5.04, 5.05, 5.11 and 5.13; provided, however,
-------- -------
that in determining whether the Holders of the requisite Liquidation Amount
of the Outstanding Capital Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Capital
Securities owned by the Depositor, any Trustee or any Affiliate of the
Depositor or any Trustee shall be disregarded and deemed not to be
Outstanding, except that (a) in determining whether any Trustee shall be
protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Capital Securities that a
Responsible Officer of such Trustee actually knows to be so owned shall be
so disregarded and (b) the foregoing shall not apply at any time when all
of the outstanding Capital Securities are owned by the Depositor, one or
more of the Trustees and/or any such Affiliate. Capital Securities so owned
which have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Administrative Trustees the
pledgee's right so to act with respect to such Capital Securities and that
the pledgee is not the Depositor or any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner of a Global
Capital Security as reflected in the records of the Clearing Agency or, if a
Clearing Agency Participant is not the Owner, then as reflected in the records
of a Person maintaining an account with such
12
Clearing Agency (directly or indirectly), in accordance with the rules of such
Clearing Agency.
"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 5.10 and shall initially be the Bank.
"Payment Account" means a segregated noninterest-bearing corporate
trust account maintained by the Property Trustee with the Bank in its trust
department for the benefit of the Securityholders in which all amounts paid in
respect of the Junior Subordinated Debt Securities will be held and from which
the Property Trustee shall make payments to the Securityholders in accordance
with Sections 4.01 and 4.02.
"Person" means any individual, corporation, partnership, joint
venture, trust, limited liability company or corporation, unincorporated
organization or government or any agency or political subdivision thereof.
"Property Trustee" means the commercial bank or trust company
identified as the "Property Trustee" in the preamble to this Declaration of
Trust solely in its capacity as Property Trustee of the Trust continued
hereunder and not in its individual capacity, or its successor in interest in
such capacity, or any successor property trustee appointed as herein provided.
"Purchase Agreement" means the Purchase Agreement, dated as of April
16, 1997, among the Trust, the Depositor and the Initial Purchasers.
"Redemption Date" means, with respect to any Trust Security to be
redeemed, the date fixed for such redemption by or pursuant to this Declaration
of Trust, provided, however, that each Junior Subordinated Debt Securities
-------- -------
Redemption Date and the Stated Maturity of the Junior Subordinated Debt
Securities shall be a Redemption Date for a Like Amount of Trust Securities.
"Redemption Price" means, with respect to any Trust Security, the
Liquidation Amount of such Trust Security, plus accrued and unpaid Distributions
to the Redemption Date paid by the Depositor upon the concurrent redemption of a
Like Amount of Junior Subordinated Debt Securities, allocated on a pro rata
basis (based on Liquidation Amounts) among the Trust Securities.
13
"Registration Agreement" means the Registration Agreement dated as of
April 23, 1997, among the Trust, the Depositor and the Initial Purchasers.
"Registration Exchange Offer" has the meaning specified in the
Registration Agreement.
"Registration Statement" has the meaning specified in the Registration
Agreement.
"Regulation D" means Regulation D under the Securities Act (or any
successor provision), as it may be amended from time to time.
"Relevant Trustee" has the meaning specified in Section 8.10.
"Responsible Officer" means, when used with respect to the Property
Trustee, any officer assigned to the Corporate Trust Office, including any
managing director, vice president, assistant vice president, assistant
treasurer, assistant secretary or any other officer to the Property Trustee
customarily performing functions similar to those performed by any of the above
designated officers and having direct responsibility for the administration for
this Declaration of Trust, and also, with respect to a particular matter, any
other officer, to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject.
"Restricted Capital Securities" means all Capital Securities required
pursuant to Section 5.05(c) to bear a Restricted Capital Securities Legend.
Such term includes the Global Capital Securities Certificate.
"Restricted Capital Securities Certificate" means a certificate
substantially in the form set forth in Exhibit D.
"Restricted Capital Securities Legend" means a legend substantially in
the form of the legend required in Section 5.05(c).
"Rule 144A" means Rule 144A under the Securities Act (or any successor
provision), as may be amended from time to time.
"Rule 144A Capital Securities" means the Capital Securities purchased
by the Initial Purchasers from the Trust pursuant to the Purchase Agreement,
other than the Other Capital Securities.
14
"Securities Act" means the Securities Act of 1933.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 5.05.
"Securityholder" or "Holder" means a Person in whose name a Trust
Security or Trust Securities is registered in the Securities Register; any such
Person shall be deemed to be a beneficial owner within the meaning of the
Delaware Business Trust Act; provided, however, that in determining whether the
-------- -------
Holders of the requisite amount of Capital Securities have voted on any matter
provided for in this Declaration of Trust, then for the purpose of any such
determination, so long as Definitive Capital Securities Certificates have not
been issued, the term Securityholders or Holders as used herein shall refer to
the Owners.
"Stated Maturity" has the meaning specified in Section 1.01 of the
Indenture.
"Tax Event" has the meaning specified in Section 1.01 of the
Indenture.
"Transfer Agent" means the Bank as set forth in the preamble to this
Declaration of Trust.
"Trust" means Central Fidelity Capital Trust I.
"Trust Indenture Act" has the meaning specified in Section 1.01 of the
Indenture.
"Trust Property" means (a) the Junior Subordinated Debt Securities,
(b) the rights of the Property Trustee under the Guarantee, (c) any cash or
deposit in, or owing to, the Payment Account and (d) all proceeds and rights in
respect of the foregoing.
"Trust Securities Certificate" means any one of the Common Securities
Certificates or the Capital Securities Certificates.
"Trust Security" means any one of the Common Securities or the Capital
Securities.
"Trustees" means, collectively, the Property Trustee, the Delaware
Trustee and the Administrative Trustees.
15
ARTICLE II
Continuation of the Trust
-------------------------
SECTION 2.01. Name. The Trust continued hereby shall be known as
-----
"Central Fidelity Capital Trust I", as such name may be modified from time to
time by the Administrative Trustees following written notice to the Holders and
the other Trustees, in which name the Trustees may conduct the business of the
Trust, make and execute contracts and other instruments on behalf of the Trust
and sue and be sued.
SECTION 2.02. Office of the Delaware Trustee; Principal Place of
--------------------------------------------------
Business. The address of the Delaware Trustee in the State of Delaware is The
- ---------
Bank of New York (Delaware), White Clay Center, Route 273, Newark, Delaware
19711, Attention: Corporate Trust Administration, or such other address in the
State of Delaware as the Delaware Trustee may designate by written notice to the
Securityholders and the Depositor. The principal executive office of the Trust
is in care of Central Fidelity Banks, Inc., 1021 East Cary Street, P.O. Box
27602, Richmond, Virginia 23261-7602; Attention: William N. Stoyko, Secretary.
SECTION 2.03. Organizational Expenses. The Depositor, as borrower on
------------------------
the Junior Subordinated Debt Securities, shall pay all expenses of the Trust as
they arise or shall, upon request of any Trustee, promptly reimburse such
Trustee for any such expenses paid by such Trustee. The Depositor shall make no
claim upon the Trust Property for the payment of such expenses.
SECTION 2.04. Issuance of the Capital Securities. The Capital
-----------------------------------
Securities to be issued will be limited to $100 million aggregate Liquidation
Amount outstanding at any one time.
On April 16, 1997, the Depositor, on behalf of the Trust, and pursuant
to the Original Declaration of Trust, and the Initial Purchasers executed and
delivered the Purchase Agreement. Contemporaneously with the execution and
delivery of this Declaration of Trust, an Administrative Trustee, on behalf of
the Trust, shall execute or cause to be executed in accordance with Section 5.02
and delivered to the Initial Purchasers, a Global Capital Securities Certificate
in book-entry form, registered in the name of the nominee of the initial
Clearing Agency, in an aggregate amount of Capital Securities having an
aggregate Liquidation Amount of $100 million against receipt of the aggregate
16
purchase price of such Capital Securities equal to 99.134% of the Liquidation
Amount multiplied by the number of Capital Securities being purchased which
amount the Administrative Trustee shall promptly deliver to the Property
Trustee.
SECTION 2.05. Issuance of the Common Securities; Subscription and
---------------------------------------------------
Purchase of Junior Subordinated Debt Securities. Contemporaneously with the
- ------------------------------------------------
execution and delivery of this Declaration of Trust, an Administrative Trustee,
on behalf of the Trust, shall execute or cause to be executed in accordance with
Section 5.02(a) and delivered to the Depositor Common Securities Certificates,
registered in the name of the Depositor, in an aggregate amount of 3,093
Common Securities having an aggregate Liquidation Amount of $3,093,000 against
payment by the Depositor of $3,093,000 to the Trust. Contemporaneously
therewith, an Administrative Trustee, on behalf of the Trust, shall subscribe to
and purchase from the Depositor Junior Subordinated Debt Securities, registered
in the name of the Property Trustee and held for the benefit of the holders of
the Capital Securities having an aggregate principal amount equal to
$103,093,000, and, in satisfaction of the purchase price for such Junior
Subordinated Debt Securities, the Trust shall deliver to the Depositor the sum
of $102,227,000.
SECTION 2.06. Declaration of Trust. The exclusive purposes and
---------------------
functions of the Trust are to (a) issue and sell Trust Securities, (b) use the
proceeds from the sale of Trust Securities to acquire the Junior Subordinated
Debt Securities, (c) receive payments to be made with respect to the Junior
Subordinated Debt Securities, and (d) engage in only those other activities
necessary or incidental thereto such as registering the transfer of the Capital
Securities and complying with the terms of the Registration Agreement. The
Depositor hereby appoints the Trustees as trustees of the Trust, to have all the
rights, powers and duties to the extent set forth herein, and the Trustees
hereby accept such appointment. The Property Trustee hereby declares that it
will hold the Trust Property in trust upon and subject to the conditions set
forth herein for the benefit of the Trust and the Securityholders. The
Administrative Trustees shall have all rights, powers and duties set forth
herein and in accordance with applicable law with respect to accomplishing the
purposes of the Trust. The Delaware Trustee shall not be entitled to exercise
any powers, nor shall the Delaware Trustee have any of the duties and
responsibilities, of the Property Trustee or the Administrative Trustees set
forth herein. The Delaware Trustee shall be one of the Trustees
17
of the Trust for the sole and limited purpose of fulfilling the requirements of
Section 3807 of the Delaware Business Trust Act.
SECTION 2.07. Authorization to Enter into Certain Transactions. (a)
-------------------------------------------------
The Trustees shall conduct the affairs of the Trust in accordance with the terms
of this Declaration of Trust. Subject to the limitations set forth in paragraph
(b) of this Section and in accordance with the following provisions (i) and
(ii), the Trustees shall have the authority to enter into all transactions and
agreements determined by the Trustees to be appropriate in exercising the
authority, express or implied, otherwise granted to the Trustees under this
Declaration of Trust, and to perform all acts in furtherance thereof, including
without limitation, the following:
(i) As among the Trustees, each Administrative Trustee shall have
the power and authority to act on behalf of the Trust with respect to the
following matters:
(A) the issuance and sale of the Trust Securities;
(B) to cause the Trust to enter into, and to execute, deliver
and perform on behalf of the Trust, the Purchase Agreement, the
Registration Agreement, the Letter of Representations and such other
agreements as may be necessary or desirable in connection with the
purposes and function of the Trust;
(C) assisting in the registration of the Capital Securities
under the Securities Act, and under state securities or blue sky laws,
and the qualification of this Declaration of Trust as a trust
indenture under the Trust Indenture Act;
(D) assisting in the listing, if any, of the Capital Securities
upon such securities exchange or exchanges as shall be determined by
the Depositor and the registration of the Capital Securities under the
Securities Exchange Act of 1934 (the "Exchange Act"), and the
preparation and filing of all periodic and other reports and other
documents pursuant to the foregoing;
(E) the sending of notices (other than notices of default) and
other information regarding the Trust Securities and the Junior
18
Subordinated Debt Securities to the Securityholders in accordance with
this Declaration of Trust;
(F) the appointment of a Paying Agent, Transfer Agent and
Securities Registrar in accordance with this Declaration of Trust;
(G) registering transfer of the Trust Securities in accordance
with this Declaration of Trust;
(H) to the extent provided in this Declaration of Trust, the
winding up of the affairs 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) unless otherwise determined by the Depositor, the Property
Trustee or the Administrative Trustees or as otherwise required by the
Delaware Business Trust Act or the Trust Indenture Act, to execute on
behalf of the Trust (either acting alone or together with any or all
of the Administrative Trustees) any documents that the Administrative
Trustees have the power to execute pursuant to this Declaration of
Trust; and
(J) the taking of any action incidental to the foregoing as the
Trustees may from time to time determine is necessary or advisable to
give effect to the terms of this Declaration of Trust for the benefit
of the Securityholders (without consideration of the effect of any
such action on any particular Securityholders).
(ii) As among the Trustees, the Property Trustee shall have the power,
duty and authority to act on behalf of the Trust with respect to the
following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debt Securities;
(C) the collection of interest, principal and any other
payments made in respect of the Junior Subordinated Debt Securities in
the Payment Account;
19
(D) the distribution of amounts owed to the
Securityholders in respect of the Trust Securities;
(E) the exercise of all of the rights, powers and privileges of
a holder of the Junior Subordinated Debt Securities;
(F) the sending of notices of default and other information
regarding the Trust Securities and the Junior Subordinated Debt
Securities to the Securityholders in accordance with this Declaration
of Trust;
(G) the distribution of the Trust Property in accordance with
the terms of this Declaration of Trust;
(H) to the extent provided in this Declaration of Trust, 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 an Event of Default (other than an Event of Default
pursuant to paragraph (b), (c), (d) or (e) of the definition of such
term if such Event of Default is by or with respect to the Property
Trustee) the taking of any action incidental to the foregoing as the
Property Trustee may from time to time determine is necessary or
advisable to give effect to the terms of this Declaration of Trust and
protect and conserve the Trust Property for the benefit of the
Securityholders (without consideration of the effect of any such
action on any particular Securityholder); and
(J) except as otherwise provided in this Section 2.07(a)(ii),
the Property Trustee shall have none of the duties, liabilities,
powers or the authority of the Administrative Trustees set forth in
Section 2.07(a)(i).
(b) So long as this Declaration of Trust remains in effect, the Trust
(or the Trustees acting on behalf of the Trust) shall not undertake any
business, activities or transactions except as expressly provided herein or
contemplated hereby. In particular, the Trustees shall not (i) acquire any
investments or engage in any activities not
20
authorized by this Declaration of Trust, (ii) sell, assign, transfer, exchange,
mortgage, pledge, set-off or otherwise dispose of any of the Trust Property or
interests therein, including to Securityholders, except as expressly provided
herein, (iii) intentionally take any action that would cause the Trust to fail
or cease to qualify as a "grantor trust" or as other than an association taxable
as a corporation for United States federal income tax purposes, (iv) incur any
indebtedness for borrowed money or issue any other debt, (v) take or consent to
any action that would result in the placement of a Lien on any of the Trust
Property, (vi) invest any proceeds received by the Trust from holding the Junior
Subordinated Debt Securities, but shall distribute all such proceeds to Holders
pursuant to the terms of this Declaration of Trust and of the Trust Securities,
(vii) acquire any assets other than the Trust Property, (viii) possess any power
or otherwise act in such a way as to vary the Trust Property, (ix) possess any
power or otherwise act in such a way as to vary the terms of the Trust
Securities in any way whatsoever (except to the extent expressly authorized in
this Declaration of Trust or by the terms of the Trust Securities), (x) issue
any securities or other evidences of beneficial ownership of, or beneficial
interest in, the Trust other than the Trust Securities, or (xi) other than as
provided in this Declaration of Trust or by the terms of the Trust Securities,
so long as any Junior Subordinated Debt Securities are held by the Property
Trustee, (A) direct the time, method and place of exercising any trust or power
conferred upon the Debenture Trustee with respect to the Junior Subordinated
Debt Securities, (B) waive any past default that is waivable under the
Indenture, (C) exercise any right to rescind or annul any declaration that the
principal of all Junior Subordinated Debt Securities shall be due and payable,
or (D) consent to any amendment, modification, or termination of the Indenture
or the Junior Subordinated Debt Securities where such consent shall be required
unless the Trust shall have received an Opinion of Counsel of a nationally
recognized independent law firm to the effect that such amendment, modification
or termination will not cause more than an insubstantial risk that the Trust
will be deemed an Investment Company required to be registered under the
Investment Company Act, the Trust will not be classified as a grantor trust or
will be classified as an association taxable as a corporation for United States
federal income tax purposes or the Junior Subordinated Debt Securities will not
be classified as indebtedness for such purposes. The Administrative Trustees
shall 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
Securityholders in their capacity as Securityholders.
21
(c) In connection with the issue and sale of the Trust Securities,
the Depositor shall have the right and responsibility to assist the Trust with
respect to, or effect on behalf of the Trust, the following (and any actions
taken by the Depositor in furtherance of the following prior to the date of this
Declaration of Trust are hereby ratified and confirmed in all respects):
(i) the preparation by the Trust of an offering memorandum relating to
the Trust Securities and the preparation and filing by the Trust with the
Commission and the execution on behalf of the Trust of a registration
statement on the appropriate form in relation to the Trust Securities,
including any amendments thereto;
(ii) the determination of the states in which to take appropriate
action to qualify or register for sale all or part of the Trust Securities
and the determination of any and all such acts, other than actions which
must be taken by or on behalf of the Trust, and the advice to the 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 Depositor deems necessary or advisable in
order to comply with the applicable laws of any such states;
(iii) the preparation for filing by the Trust with the Commission and
the execution on behalf of the Trust of a registration statement on Form 8-
A relating to the registration of the Trust Securities under Section 12(b)
or 12(g) of the Exchange Act, including any amendments thereto;
(iv) the negotiation of the terms of, and the execution and delivery
of, the Registration Agreement, the Purchase Agreement providing for the
sale of the Trust Securities and such other agreements as may be necessary
or desirable in connection with the consummation of the transactions
contemplated thereby, all in its capacity as Depositor and on behalf of the
Trust; and
(v) the taking of any other actions necessary or desirable to carry
out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, each
Administrative Trustee is authorized and directed to conduct the affairs of the
Trust and to operate
22
the Trust so that the Trust will not (i) be deemed to be an "investment company"
required to be registered under the Investment Company Act of 1940, or (ii) fail
to be classified as a grantor trust or as other than an association taxable as a
corporation for United States federal income tax purposes and so that the Junior
Subordinated Debt Securities will be treated as indebtedness of the Depositor
for United States federal income tax purposes. In this connection, the Depositor
and each of the Administrative Trustees are authorized to take any action, not
inconsistent with applicable law, the Certificate of Trust or this Declaration
of Trust, that each of the Depositor and each Administrative Trustee determines
in their discretion to be necessary or desirable for such purposes, as long as
such action does not adversely affect in any material respect the interests of
the holders of the Trust Securities.
SECTION 2.08. Assets of Trust. The assets of the
----------------
Trust shall consist solely of the Trust Property.
SECTION 2.09. Title to Trust Property. Legal title to all Trust
------------------------
Property shall be vested at all times in the Property Trustee (in its capacity
as such) and shall be held and administered by the Property Trustee for the
benefit of the Trust and the Securityholders in accordance with this Declaration
of Trust.
ARTICLE III
Payment Account
---------------
SECTION 3.01. Payment Account. (a) On or prior to the Closing Date,
----------------
the Property Trustee shall establish the Payment Account. The Property Trustee
and any agent of the Property Trustee shall have exclusive control and sole
right of withdrawal with respect to the Payment Account for the purpose of
making deposits in and withdrawals from the Payment Account in accordance with
this Declaration of Trust. All moneys and other property deposited or held from
time to time in the Payment Account shall be held by the Property Trustee in the
Payment Account for the exclusive benefit of the Securityholders and for
distribution as herein provided, including (and subject to) any priority of
payments provided for herein or by applicable law.
(b) The Property Trustee shall deposit in the Payment Account,
promptly upon receipt, all payments of principal of or interest on, and any
other payments or proceeds with respect to, the Junior Subordinated Debt
23
Securities. Amounts held in the Payment Account shall not be invested by the
Property Trustee pending distribution thereof.
ARTICLE IV
Distributions; Redemption
-------------------------
SECTION 4.01. Distributions. (a) Distributions on the Trust
--------------
Securities shall be cumulative and will accumulate whether or not there are
funds of the Trust available for the payment of Distributions. Distributions
shall accrue from April 23, 1997, and, except in the event (and to the extent)
that the Depositor exercises its right to defer the payment of interest on the
Junior Subordinated Debt Securities pursuant to the Indenture, shall be payable
quarterly in arrears on the 15th day of January, April, July and October of each
year, commencing on July 15, 1997. If any date on which a Distribution is
otherwise payable is not a Business Day, then the payment of such Distribution
shall be made on the next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay), in each case with the
same force and effect as if made on such date (each date on which distributions
are payable in accordance with this Section 4.01(a), a "Distribution Date").
Accrued Distributions that are not paid on the applicable Distribution Date will
bear interest on the amount thereof (to the extent permitted by law) at a
variable annual rate equal to LIBOR plus 1.00%, compounded quarterly from the
relevant Distribution Date in accordance with Section 2.02 of the Indenture.
(b) The Trust Securities represent undivided beneficial ownership
interests in the Trust Property, and, assuming payments of interest on the
Junior Subordinated Debt Securities are made when due (and before giving effect
to Additional Distributions, defined below, if applicable), Distributions on the
Trust Securities shall be payable at a variable annual rate equal to LIBOR plus
1.00% of the Liquidation Amount of the Trust Securities in accordance with
Section 2.02 of the Indenture. The amount of Distributions payable for any
period shall be computed on the basis of the actual number of days elapsed in a
year of twelve 30-day months; except that the amount of interest payable for any
partial period shall be computed on the basis of the actual number of days
elapsed in a 360-day year. The amount of Distributions payable for any period
shall include the Additional Distributions, if any.
24
(c) So long as no Debenture Event of Default has occurred and is
continuing, the Depositor has the right under the Indenture to defer the payment
of interest on the Junior Subordinated Debt Securities at any time and from time
to time for a period not exceeding 20 consecutive quarterly periods (an
"Extension Period"), provided that no Extension Period may extend beyond the
Stated Maturity of the Junior Subordinated Debt Securities. As a consequence of
any such deferral, quarterly Distributions on the Trust Securities by the Trust
will also be deferred during any Extension Period (and the amount of
Distributions to which Holders are entitled will accumulate additional
Distributions thereon at a variable annual rate equal to LIBOR plus 1.00%
thereof, compounded quarterly from the relevant payment date for such
Distributions during any such Extension Period, to the extent permitted by
applicable law, but not exceeding the interest rate then accruing on the Junior
Subordinated Debt Securities. No interest or other amounts shall be due and
payable during an Extension Period except at the end thereof. In addition, in
the event that a Registration Default (as defined in the Registration Agreement)
occurs, an additional amount will be payable, as special interest and additional
interest, on the Junior Subordinated Debt Securities and the Trust Securities,
respectively, at a rate of 0.25% per annum of the principal amount or the
Liquidation Amount, as applicable, from and including the next day following
each such Registration Default to but excluding the date on which such
Registration Default shall have been cured. The aggregate amount of such
additional amounts payable with respect to the preceding sentence shall not
exceed 0.50% per annum (each type of increase in Distribution, described in this
Section 4.01(c), an "Additional Distribution").
(d) Distributions on the Trust Securities shall be made by the
Property Trustee from the Payment Account and shall be payable on each
Distribution Date only to the extent that the Trust has funds then on-hand and
available in the Payment Account for the payment of such Distributions.
(e) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders of record as they appear on
the Securities Register for the Trust Securities at the close of the Business
Day next preceding each 15th day of January, April, July and October.
SECTION 4.02. Redemption. (a) On each Junior Subordinated Debt
-----------
Securities Redemption Date and on the Stated Maturity of the Junior Subordinated
Debt Securities,
25
the Trust will be required to redeem a Like Amount of Trust Securities at the
applicable Redemption Price.
(b) Other than on the Stated Maturity, notice of redemption shall be
given by the Property Trustee by first-class mail, postage prepaid, mailed not
less than 30 nor more than 60 days prior to the Redemption Date to each Holder
of Trust Securities to be redeemed, at such Holder's address appearing in the
Security Register. All notices of redemption shall identify the Trust
Securities to be redeemed (including CUSIP numbers) and shall state:
(i) the Redemption Date;
(ii) the applicable Redemption Price;
(iii) if less than all the Outstanding Trust Securities are to be
redeemed, the identification and the total Liquidation Amount of the particular
Trust Securities to be redeemed; and
(iv) that on the Redemption Date the Redemption Price will become due
and payable upon each such Trust Security to be redeemed and that Distributions
thereon will cease to accrue on and after said date.
The Trust in issuing the Trust Securities may use "CUSIP", and/or
"private placement" numbers (if then generally in use), and, if so, the Property
Trustee shall indicate the "CUSIP" or "private placement" numbers of the Trust
Securities in notices or redemption and related materials as a convenience to
Securityholders; provided that any such notice may state that no representation
--------
is made as to the correctness of such numbers either as printed on the Trust
Securities or as contained in any notice of redemption and related material.
The Depositor shall promptly notify the Property Trustee of any change in such
numbers.
(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the applicable Redemption Price with the proceeds from the
contemporaneous redemption of Junior Subordinated Debt Securities. Redemptions
of the Trust Securities shall be made and the applicable Redemption Price shall
be payable on each Redemption Date only to the extent that the Trust has funds
then on hand and available in the Payment Account for the payment of such
Redemption Price.
(d) If the Property Trustee gives a notice of redemption in respect
of any Trust Securities, then, by 12:00 noon, New York City time, on the
Redemption Date,
26
subject to Section 4.02(c), the Property Trustee will, so long as the Capital
Securities are in book-entry-only form, irrevocably deposit with the Clearing
Agency for the Capital Securities funds sufficient to pay the applicable
Redemption Price and will give such Clearing Agency irrevocable instructions and
authority to pay the Redemption Price to the holders thereof. With respect to
Capital Securities held in certificated form, the Property Trustee, subject to
Section 4.02(c), will irrevocably deposit with the Paying Agent funds sufficient
to pay the applicable Redemption Price and will give the Paying Agent
irrevocable instructions and authority to pay the Redemption Price to the
Holders thereof upon surrender of their Capital Securities Certificates.
Notwithstanding the foregoing, Distributions payable on or prior to the
Redemption Date for any Trust Securities called for redemption shall be payable
to the Holders of such Trust Securities as they appear on the Securities
Register on the relevant record dates for the related Distribution Dates. If
notice of redemption shall have been given and funds deposited as required, then
upon the date of such deposit, all rights of Securityholders holding Trust
Securities so called for redemption will cease, except the right of such
Securityholders to receive the applicable Redemption Price and any Distribution
payable on or prior to the Redemption Date, but without interest, and such
Capital Securities will cease to be outstanding. In the event that any date on
which any applicable Redemption Price is payable is not a Business Day, then
payment of the applicable Redemption Price payable on such date will be made on
the next succeeding day that is a Business Day (and without any interest or
other payment in respect of any such delay), except that, if such Business Day
falls in the next calendar year, such payment will be made on the immediately
preceding Business Day, in each case, with the same force and effect as if made
on such date. In the event that payment of the applicable Redemption Price in
respect of any Trust Securities called for redemption is improperly withheld or
refused and not paid either by the Trust or by the Depositor pursuant to the
Guarantee, Distributions on such Trust Securities will continue to accrue, at
the then applicable rate, from the Redemption Date originally established by the
Trust for such Trust Securities to the date such applicable Redemption Price is
actually paid, in which case the actual payment date will be the date fixed for
redemption for purposes of calculating the applicable Redemption Price.
(e) Payment of the applicable Redemption Price on, and any
distributions of Junior Subordinated Debt Securities to Holders of, the Trust
Securities shall be made to the Holders thereof as they appear on the Securities
27
Register on the relevant record date, and, with respect to Trust Securities held
in certificated form, upon surrender of such certificated Trust Securities to
the Paying Agent.
(f) Subject to Section 4.03(a), if less than all the Outstanding
Trust Securities are to be redeemed on a Redemption Date, then the aggregate
Liquidation Amount of Trust Securities to be redeemed shall be allocated on a
pro rata basis (based on Liquidation Amounts) among the Trust Securities. The
particular Trust Securities to be redeemed shall be selected on a pro rata basis
(based upon Liquidation Amounts) not more than 60 days prior to the Redemption
Date by the Property Trustee from the Outstanding Trust Securities not
previously called for redemption, by such method as the Property Trustee shall
deem fair and appropriate and which may provide for the selection for redemption
of portions (equal to $1,000 or an integral multiple of $1,000 in excess
thereof, provided that the unredeemed portion of any Trust Security shall not be
--------
less than $100,000) of the Liquidation Amount of Trust Securities of a
denomination larger than $1,000. The Property Trustee shall promptly notify the
Security Registrar in writing of the Trust Securities selected for redemption
and, in the case of any Trust Securities selected for partial redemption, the
Liquidation Amount thereof to be redeemed. For all purposes of this Declaration
of Trust, unless the context otherwise requires, all provisions relating to the
redemption of Trust Securities shall relate in the case of any Trust Securities
redeemed or to be redeemed only in part, to the portion of the Liquidation
Amount of Trust Securities that has been or is to be redeemed.
SECTION 4.03. Subordination of Common Securities. (a) Payment of
-----------------------------------
Distributions (including Additional Distributions, if applicable) on, and the
Redemption Price of the Trust Securities, as applicable, shall be made subject
to Section 4.02(f), pro rata to the holders of the Trust Securities based on the
Liquidation Amount of the Trust Securities; provided, however, that if on any
-------- -------
Distribution Date or Redemption Date any Debenture Event of Default (or other
event that, with notice or the passage of time or both, would become such an
Event of Default) or an Event of Default shall have occurred and be continuing,
no payment of any Distribution (including Additional Distributions, if
applicable) on, or Redemption Price of, any of the Common Securities, and no
other payment on account of the redemption, liquidation or other acquisition of
such Common Securities, shall be made unless payment in full in cash of all
accumulated and unpaid Distributions (including Additional Distributions, if
applicable) on all outstanding Capital Securities for all Distribution Dates
28
occurring on or prior thereto, or, in the case of payment of the applicable
Redemption Price the full amount of such Redemption Price on all outstanding
Capital Securities, shall have been made or provided for, and all funds
immediately available to the Property Trustee shall first be applied to the
payment in full in cash of all Distributions (including Additional
Distributions, if applicable) on, or the Redemption Price of, Capital Securities
then due and payable.
(b) In the case of the occurrence of any Event of Default resulting
from any Debenture Event of Default, the Holder of Common Securities will be
deemed to have waived any right to act with respect to any such Event of Default
under this Declaration of Trust until the effect of all such Events of Default
with respect to the Capital Securities have been cured, waived or otherwise
eliminated. Until all such Events of Default under this Declaration of Trust
with respect to the Capital Securities have been so cured, waived or otherwise
eliminated, the Property Trustee shall act solely on behalf of the Holders of
the Capital Securities and not on behalf of the Holder of the Common Securities,
and only the Holders of the Capital Securities will have the right to direct the
Property Trustee to act on their behalf.
SECTION 4.04. Payment Procedures. In the event Definitive Capital
-------------------
Securities Certificates are issued, payments of Distributions (including
Additional Distributions, if applicable) in respect of the Capital Securities
shall be made by check mailed to the address of the Person entitled thereto at
such address as shall appear on the Securities Register. If the Capital
Securities are held by a Clearing Agency, such Distributions shall be made to
the Clearing Agency in immediately available funds, which shall credit the
relevant Persons' accounts at such Clearing Agency on the applicable
Distribution Dates. Payments in respect of the Common Securities shall be made
in such manner as shall be mutually agreed between the Property Trustee and the
Common Securityholder.
SECTION 4.05. Tax Returns and Reports. The Administrative Trustees
------------------------
shall prepare (or cause to be prepared), at the Depositor's expense, and file
all United States federal, state and local tax and information returns and
reports required to be filed by or in respect of the Trust. In this regard, the
Administrative Trustees shall (a) prepare and file (or cause to be prepared and
filed) the appropriate Internal Revenue Service forms required to be filed in
respect of the Trust in each taxable year of the Trust and (b) prepare and
furnish (or cause to be prepared and furnished) to each Securityholder all
Internal Revenue
29
Service forms required to be provided by the Trust. The Administrative Trustees
shall provide the Depositor and the Property Trustee with a copy of all such
returns and reports promptly after such filing or furnishing. The
Administrative Trustees shall comply with United States federal withholding and
backup withholding tax laws and information reporting requirements with respect
to any payments to Securityholders.
SECTION 4.06. Payment of Taxes; Duties, etc. of the Trust. Pursuant
--------------------------------------------
to Section 10.06 of the Indenture, the Depositor, as borrower on the Junior
Subordinated Debt Securities, has agreed to, and it shall, promptly pay any
taxes, duties or governmental charges of whatever nature (other than United
States withholding taxes) imposed on the Trust by the United States or any other
taxing authority.
SECTION 4.07. Payments Under Indenture. Any amount payable hereunder
-------------------------
to any Holder (and any Owner with respect thereto) shall be reduced by the
amount of any corresponding payment such Holder (and Owner) has directly
received pursuant to Section 5.08 of the Indenture or Section 5.13 of this
Declaration of Trust.
ARTICLE V
Trust Securities Certificates
-----------------------------
SECTION 5.01. Initial Ownership. Upon the formation of the Trust and
------------------
until the issuance of the Trust Securities, and at any time during which no
Trust Securities are outstanding, the Depositor shall be the sole beneficial
owner of the Trust.
SECTION 5.02. Trust Securities Certificates. (a) The Capital
------------------------------
Securities Certificates shall be issued only in minimum denominations of
$100,000 Liquidation Amount (100 Capital Securities) and integral multiples of
$1,000 in excess thereof, and the Common Securities Certificates shall be issued
in denominations of $1,000 Liquidation Amount and integral multiples thereof.
The Trust Securities Certificates shall be executed on behalf of the Trust by
the manual or facsimile signature of at least one Administrative Trustee. Trust
Securities Certificates bearing the manual or facsimile signatures of
individuals who were, at the time when such signatures shall have been affixed,
authorized to sign on behalf of the Trust, shall be validly issued and entitled
to the benefits of this Declaration of Trust, notwithstanding that such
individuals or any of them shall have ceased to be so authorized prior to the
delivery of
30
such Trust Securities Certificates or did not hold such offices at the date of
delivery of such Trust Securities Certificates. A transferee of a Trust
Securities Certificate shall become a Securityholder, and shall be entitled to
the rights and subject to the obligations of a Securityholder hereunder, upon
due registration of such Trust Securities Certificate in such transferee's name
pursuant to Sections 5.04, 5.05 and 5.06.
(b) Upon their original issuance, Capital Securities Certificates
representing Rule 144A Capital Securities shall be issued in the form of a
Global Capital Securities Certificate registered in the name of Cede & Co.
("Cede") as DTC's nominee and deposited with or on behalf of DTC for credit by
DTC to the respective accounts of the Owners thereof (or such other accounts as
they may direct). Except as set forth herein, record ownership of the Global
Capital Security may be transferred, in whole or in part, only to another
nominee of DTC or to a successor of DTC or its nominee.
(c) Upon their original issuance, Capital Securities Certificates
representing Other Capital Securities shall be issued in definitive form and may
not be represented by the Global Security.
(d) A single Common Securities Certificate representing the Common
Securities shall be issued to the Depositor in the form of a definitive Common
Securities Certificate.
SECTION 5.03. Execution and Delivery of Trust Securities
------------------------------------------
Certificates. At the Closing Date, the Administrative Trustees shall cause
- -------------
Trust Securities Certificates, in an aggregate Liquidation Amount as provided in
Sections 2.04 and 2.05, to be executed on behalf of the Trust and delivered to
the Property Trustee and upon such delivery the Property Trustee shall
countersign such Trust Securities Certificates and make available for delivery
such Trust Securities Certificates upon the written order of the Depositor,
signed by its chairman of the board, president, any executive vice president or
any vice president, treasurer or assistant treasurer or controller without
further corporate action by the Depositor, in authorized denominations.
SECTION 5.04. Global Capital Security. (a) The Global Capital
------------------------
Security issued under this Declaration of Trust shall be registered in the name
of Cede as nominee of the Clearing Agency and delivered to its custodian
therefor,
31
and such Global Capital Security shall constitute a single Capital Security for
all purposes of this Declaration of Trust.
(b) Notwithstanding any other provision in this Declaration of Trust,
the Global Capital Security may not be exchanged in whole or in part for Capital
Securities registered, and no transfer of the Global Capital Security in whole
or in part may be registered, in the name of any Person other than the Clearing
Agency for such Global Capital Security, Cede, or other nominee thereof unless
(i) such Clearing Agency advises the Property Trustee in writing that such
Clearing Agency is no longer willing or able to properly discharge its
responsibilities as Clearing Agency with respect to such Global Capital
Security, and the Depositor is unable to locate a qualified successor, (ii) the
Trust at its sole option advises DTC in writing that it elects to terminate the
book-entry system through the Clearing Agency, or (iii) there shall have
occurred and be continuing a Debenture Event of Default. In addition,
beneficial interests in a Global Capital Security may be exchanged by or on
behalf of DTC for certificated Capital Securities upon request by DTC, but only
upon at least 20 days prior written notice given to the Property Trustee in
accordance with the Applicable Procedures.
(c) If the Global Capital Security is to be exchanged for Other
Capital Securities or canceled in whole, it shall be surrendered by or on behalf
of the Clearing Agency or its nominee to the Securities Registrar for exchange
or cancellation as provided in this Article V. If the Global Capital Security is
to be exchanged for Other Capital Securities or canceled in part, or if an Other
Capital Security is to be exchanged in whole or in part for a beneficial
interest in the Global Capital Security, then either (i) such Global Capital
Security shall be so surrendered for exchange or cancellation as provided in
this Article V or (ii) the aggregate Liquidation Amount thereof shall be
reduced, subject to Section 5.02, or increased by an amount equal to the portion
thereof to be so exchanged or canceled, or equal to the aggregate Liquidation
Amount of such Other Capital Security to be so exchanged for a beneficial
interest therein, as the case may be, by means of an appropriate adjustment made
on the records of the Security Registrar, whereupon the Property Trustee, in
accordance with the Applicable Procedures, shall instruct the Clearing Agency or
its authorized representative to make a corresponding adjustment to its records.
Upon any such surrender or adjustment of the Global Capital Security by the
Clearing Agency and Clearing Agency Participants, accompanied by registration
instructions executed by an
32
Administrative Trustee on behalf of the Trust and, to the extent required in
Section 5.05(c), a Restricted Capital Securities Certificate in a form
substantially similar to that attached hereto as Exhibit D, the Property Trustee
shall, subject to this Article V, countersign and make available for delivery
any executed Capital Securities delivered to it issuable in exchange for such
Global Capital Security (or any portion thereof) in accordance with the
instructions of the Clearing Agency. The Property Trustee shall not be liable
for any delay in delivery of such instructions and may conclusively rely on, and
shall be fully protected in relying on, such instructions.
(d) The Clearing Agency or its nominee, as the registered owner of
the Global Capital Security, shall be considered the Holder of the Capital
Securities represented by the Global Capital Security for all purposes under
this Declaration of Trust and the Capital Securities, and owners of beneficial
interests in the Global Capital Security shall hold such interests pursuant to
the Applicable Procedures and, except as otherwise provided herein, shall not be
entitled to have any of the individual Capital Securities represented by the
Global Capital Security registered in their names, shall not receive nor be
entitled to receive physical delivery of any such Capital Securities in
definitive form and shall not be considered the Holders thereof under this
Declaration of Trust. Accordingly, any such owner's beneficial interest in the
Global Capital Security shall he shown only on, and the transfer of such
interest shall be effected only through, records maintained by the Clearing
Agency or its nominee. The Securities Registrar and the Trustees shall be
entitled to deal with the Clearing Agency for all purposes of this Declaration
of Trust relating to the Global Capital Securities (including the payment of the
Liquidation Amount of and Distributions on the Global Capital Securities and the
giving of instructions or directions to Owners of Global Capital Securities) as
the sole Holder of Global Capital Securities and shall have no obligations to
the Owners thereof. Neither the Property Trustee nor the Securities Registrar
shall have any liability in respect of any transfers effected by the Clearing
Agency.
(e) The rights of Owners of beneficial interests in the Global
Capital Security shall be exercised only through the Clearing Agency and shall
be limited to those established by law and agreements between such owners and
the Clearing Agency. Neither the Clearing Agency nor its nominee will consent
or vote with respect to the Capital Securities. Under its usual procedures, the
Clearing Agency or its nominee would mail an Omnibus Proxy to the Trust as
33
soon as possible after the relevant record date. The Omnibus Proxy assigns the
consenting or voting rights of the Clearing Agency or its nominee to those
Clearing Agency Participants, identified in a listing attached to such Omnibus
Proxy, to whose accounts the Capital Securities are credited on such record
date.
SECTION 5.05. Registration of Transfer and Exchange Generally;
------------------------------------------------
Certain Transfers and Exchanges; Capital Securities Certificates; Securities Act
- --------------------------------------------------------------------------------
Legends. (a) The Property Trustee shall keep or cause to be kept at its
- --------
Corporate Trust Office a register or registers for the purpose of registering
Capital Securities Certificates and Common Securities Certificates and transfers
and exchanges of Capital Securities Certificates and Common Securities
Certificates in which the registrar and transfer agent with respect to the
Capital Securities (the "Securities Registrar"), subject to such reasonable
regulations as it may prescribe, shall provide for the registration of Capital
Securities Certificates and Common Securities Certificates (subject to
Section 5.11 in the case of Common Securities Certificates) and registration of
transfers and exchanges of Capital Securities Certificates and Common Securities
Certificates as herein provided. Such register is herein sometimes referred to
as the "Securities Register." The Property Trustee is hereby appointed
"Securities Registrar" for the purpose of registering Capital Securities and
transfers of Capital Securities as herein provided. The provisions of
Sections 8.01, 8.03 and 8.06 hereunder shall apply to the Property Trustee also
in its role as Securities Registrar.
Upon surrender for registration of transfer of any Capital Security at
the offices or agencies of the Property Trustee designated for that purpose, the
Administrative Trustees shall execute, and the Property Trustee shall
countersign and make available for delivery, in the name of the designated
transferee or transferees, one or more new Capital Securities of any authorized
denominations of like tenor and aggregate liquidation amount and bearing such
restrictive legends as may be required by this Declaration of Trust.
At the option of the Holder, Capital Securities may be exchanged for
other Capital Securities of any authorized denominations, of like tenor and
aggregate Liquidation Amount and bearing such restrictive legends as may be
required by this Declaration of Trust, upon surrender of the Capital Securities
to be exchanged at such office or agency. Whenever any securities are so
surrendered for exchange, an Administrative Trustee shall execute and the
34
Property Trustee shall countersign and make available for delivery the Capital
Securities that the Holder making the exchange is entitled to receive.
All Capital Securities issued upon any transfer or exchange of Capital
Securities shall be the valid obligations of the Trust, entitled to the same
benefits under this Declaration of Trust as the Capital Securities surrendered
upon such transfer or exchange.
Every Capital Security presented or surrendered for transfer or
exchange shall (if so required by the Property Trustee) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Property Trustee and the Securities Registrar, duly executed by the Holder
thereof or such Holder's attorney duly authorized in writing.
No service charge shall be made to a Holder for any transfer or
exchange of Capital Securities, but the Property Trustee or the Securities
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Capital Securities.
Neither the Trust nor the Property Trustee shall be required, pursuant
to the provisions of this Section, (i) to issue, register the transfer of or
exchange any Capital Security during a period beginning at the opening of
business 15 days before the day of mailing of a notice of redemption of Capital
Securities pursuant to Article IV and ending at the close of business on the day
of such mailing of the notice of redemption, or (ii) to register the transfer of
or exchange any Capital Security so selected for redemption in whole or in part,
except, in the case of any such Capital Security to be redeemed in part, any
portion thereof not to be redeemed.
The Capital Securities will be issued, and may be transferred, only in
blocks having a Liquidation Amount of not less than $100,000 and integral
multiples of $1,000 in excess thereof. Any transfer, sale or other disposition
of Capital Securities 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
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.
35
(b) Certain Transfers and Exchanges. Subject to Section 5.04(c),
--------------------------------
but notwithstanding any other provision of this Declaration of Trust, transfers
and exchanges of Capital Securities and beneficial interests in a Global Capital
Security shall be made only in accordance with this Section 5.05(b) and
Section 5.04(c).
(i) Non-Global Capital Security to Global Capital Security. If the
-------------------------------------------------------
Holder of an Other Capital Security (other than the Global Capital
Security) wishes at any time to transfer all or any portion of such Other
Capital Security to a Person who wishes to take delivery thereof in the
form of a beneficial interest in the Global Capital Security, such transfer
may be effected only in accordance with the provisions of this
Clause (b)(i) and subject to the Applicable Procedures. Upon receipt by the
Securities Registrar of (A) such Other Capital Security as provided in
Section 5.05(a) and instructions satisfactory to the Securities Registrar
directing that a beneficial interest in the Global Capital Security in a
specified liquidation amount not greater than the liquidation amount of
such Other Capital Security to be credited to a specified Clearing Agency
Participant's account and (B) a Capital Securities Certificate duly
executed by such Holder or such Holder's attorney duly authorized in
writing, then the Securities Registrar shall cancel such Other Capital
Security (and issue a new Other Capital Security in respect of any
untransferred portion thereof) as provided in Section 5.01(a) and increase
the aggregate liquidation amount of the Global Capital Security by the
specified liquidation amount as provided in Section 5.04(c).
(ii) Non-Global Capital Security to Non-Global Capital Security. A
-----------------------------------------------------------
Capital Security that is not a Global Capital Security may be transferred,
in whole or in part, to a Person who takes delivery in the form of another
Capital Security that is not a Global Capital Security as provided in
--------
Section 5.05(a) provided that if the Capital Security to be transferred in
whole or in part is a Restricted Capital Security, the Securities Registrar
shall have received a Restricted Capital Securities Certificate duly
executed by the transferor Holder or such Holder's attorney duly authorized
in writing.
(iii) Exchanges Between Global Capital Security and Non-Global Capital
----------------------------------------------------------------
Security. A beneficial interest in the Global Capital Security may be
---------
exchanged for a
36
Capital Security that is not a Global Capital Security as provided in
Section 5.04.
(iv) Limitations Relating to Liquidation Amount. Notwithstanding any
-------------------------------------------
other provision of this Declaration of Trust and unless otherwise specified
as permitted by this Declaration of Trust, Capital Securities or portions
thereof may be transferred or exchanged only in Liquidation Amounts of not
less than $100,000 and integral multiples of $1,000 in excess thereof. Any
transfer, exchange or other disposition of Capital Securities in
contravention of this Section 5.05(b)(iv) shall be deemed to be void and of
no legal effect whatsoever, any such transferee shall be deemed not to be
the Holder or owner of any beneficial interest in such Capital Securities
for any purpose, including but not limited to the receipt of interest
payable on such Capital Securities, and such transferee shall be deemed to
have no interest whatsoever in such Capital Securities.
(c) Restricted Securities Legend. (i) Except as set forth in this
-----------------------------
Section 5.05(c), all Capital Securities shall bear a restricted capital
securities legend substantially in the following form:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE
"SECURITIES ACT"), OR ANY STATE 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 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 PRIOR TO THE DATE WHICH IS TWO YEARS AFTER THE LATER
OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH CENTRAL
FIDELITY BANKS, INC. (THE "COMPANY") OR ANY AFFILIATE OF THE COMPANY WAS
THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) (THE
"RESALE RESTRICTIONS TERMINATION DATE") ONLY (A) TO THE COMPANY, (B)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT,
(C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE
144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT 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
37
RULE 144A, (D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES
ACT ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH
AN INSTITUTIONAL "ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES AND NOT
WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION
IN VIOLATION OF THE SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT
TO THE COMPANY'S AND THE PROPERTY TRUSTEE'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 DECLARATION OF TRUST, A COPY OF
WHICH MAY BE OBTAINED FROM THE COMPANY OR THE PROPERTY TRUSTEE. THIS LEGEND
WILL BE REMOVED UPON THE REQUEST OF A HOLDER AFTER THE RESALE RESTRICTIONS
TERMINATION DATE."
(ii) Subject to Section 5.05(d) and the following paragraphs of this
Section 5.05(c), a new Capital Security (other than a Global Capital
Security) that does not bear a Restricted Capital Securities Legend may be
issued in exchange for or in lieu of a Restricted Capital Security or any
portion thereof that bears such a legend if, in the Depositor's judgment,
placing such a legend upon such new Capital Security is not necessary to
ensure compliance with the registration requirements of the Securities Act,
and the Property Trustee, at the written direction of the Trust in the form
of an Officers' Certificate, shall countersign and deliver such a new
Capital Security as provided in this Article V.
(iii) Notwithstanding the foregoing provisions of this Section
5.05(c), a successor Capital Security of a Capital Security that does not
bear a Restricted Capital Securities Legend shall not bear such form of
legend unless the Depositor has reasonable cause to believe that such
successor Capital Security is a "restricted security" within the meaning of
Rule 144 under the Securities Act, in which case the Property Trustee, at
the written direction of the Trust in the form of an Officers' Certificate,
shall countersign and deliver a new Capital Security bearing a Restricted
Capital Securities Legend in exchange for such successor Capital Security
as provided in this Article V.
38
(iv) Upon any sale or transfer of a Restricted Capital Security
(including any Restricted Capital Security represented by a Global Capital
Security) pursuant to an effective registration statement under the
Securities Act or pursuant to Rule 144 under the Securities Act after such
registration ceases to be effective: (A) in the case of any Restricted
Capital Security that is a definitive Capital Security, the Securities
Registrar shall permit the Holder thereof to exchange such Restricted
Capital Security for a definitive Capital Security that does not bear the
Restricted Securities Legend and rescind any restriction on the transfer of
such Restricted Capital Security; and (B) in the case of any Restricted
Capital Security that is represented by a Global Capital Security, the
Securities Registrar shall permit the Holder of such Global Capital
Security to exchange such Global Capital Security for another Global
Capital Security that does not bear the Restricted Securities Legend.
(v) If Restricted Capital Securities are being presented or
surrendered for transfer or exchange then there shall be (if so required by
the Property Trustee), (A) if such Restricted Capital Securities are being
delivered to the Securities Registrar by a Holder for registration in the
name of such Holder, without transfer, a certification from such Holder to
that effect; or (B) if such Restricted Capital Securities are being
transferred, (i) a certification from the transferor in a form
substantially similar to that attached hereto as Exhibit D, and (ii) if the
Trust or Securities Registrar so requests, evidence reasonably satisfactory
to them as to the compliance with the restrictions set forth in the
Restricted Capital Securities Legend.
(d) Exchange Offer. The Capital Securities may be exchanged for
---------------
Exchange Capital Securities (as defined in the Indenture) pursuant to the terms
set forth in the Registration Agreement and Article XII of the Indenture (the
"Exchange Offer"). The Property Trustee shall make the exchange as follows:
The Depositor shall present the Property Trustee with an Officers'
Certificate certifying the following:
(i) upon issuance of the Exchange Capital Securities, the
transactions contemplated by the Exchange Offer have been consummated; and
39
(ii) the number of Capital Securities properly tendered in the
Exchange Offer that are represented by a Global Capital Security and the
number of Capital Securities properly tendered in the Exchange Offer that
are represented by Other Capital Securities, the name of such Holder of
such Other Capital Securities, the liquidation amount of Capital Securities
properly tendered in the Exchange Offer by each such Holder and the name
and address to which Other Capital Securities for Exchange Capital
Securities shall be registered and sent for each such Holder.
The Property Trustee, upon receipt of (i) such Officers' Certificate,
(ii) an Opinion of Counsel with respect to the matters set forth in Section 4(s)
of the Registration Agreement (including that the Exchange Capital Securities
have been registered under Section 5 of the Securities Act and the Indenture,
Declaration of Trust and Guarantee have been qualified under the Trust Indenture
Act) and (iii) a Company Order (as defined in the Indenture), shall authenticate
(A) a Global Capital Security representing Exchange Capital Securities in
aggregate liquidation amount equal to the aggregate liquidation amount of
Capital Securities represented by a Global Capital Security indicated in such
Officers' Certificate as having been properly tendered and (B) Capital
Securities Certificates representing Exchange Capital Securities registered in
the names of, and in the liquidation amounts indicated in such Officers'
Certificate.
If, upon consummation of the Exchange Offer, less than all the
outstanding Capital Securities shall have been properly tendered and not
withdrawn, the Property Trustee shall make an endorsement on the Global Capital
Security for Capital Securities indicating that reduction in the number and
aggregate liquidation amount represented thereby as a result of the Exchange
Offer.
The Trust shall deliver such Capital Securities Certificates for
Exchange Capital Securities to the Holders thereof as indicated in such
Officers' Certificate.
SECTION 5.06. Mutilated, Destroyed, Lost or Stolen Trust Securities
-----------------------------------------------------
Certificates. Provided Definitive Capital Securities Certificates are issued,
- -------------
if (a) any mutilated Trust Securities Certificate shall be surrendered to the
Securities Registrar, or if the Securities Registrar shall receive evidence to
its satisfaction of the destruction, loss or theft of any Trust Securities
Certificate and (b) there shall be delivered to the Securities Registrar and the
Administrative Trustees such
40
security or indemnity as may be required by them to save each of them harmless,
then in the absence of notice that such Trust Securities Certificate shall have
been acquired by a bona fide purchaser, the Administrative Trustees, or any one
of them, on behalf of the Trust shall execute and make available for delivery,
in exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Trust Securities Certificate, a new Trust Securities Certificate of like class,
tenor and denomination. In connection with the issuance of any new Trust
Securities Certificate under this Section, the Administrative Trustees or the
Securities Registrar may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection therewith.
Any duplicate Trust Securities Certificate issued pursuant to this Section shall
constitute conclusive evidence of an undivided beneficial interest in the assets
of the Trust, as if originally issued, whether or not the lost, stolen or
destroyed Trust Securities Certificate shall be found at any time.
SECTION 5.07. Persons Deemed Securityholders. The Trustees or the
-------------------------------
Securities Registrar shall treat the Person in whose name any Trust Securities
are issued as the owner of such Trust Securities for the purpose of receiving
Distributions and for all other purposes whatsoever, and neither the Trustees
nor the Securities Registrar shall be bound by any notice to the contrary.
SECTION 5.08. Access to List of Securityholders' Names and Addresses.
-------------------------------------------------------
Each Owner of Trust Securities acknowledges that the Depositor, the Property
Trustee, the Delaware Trustee or the Administrative Trustees may from time to
time make reasonable use of information consisting of such Owner's name and
address, including the furnishing of a list of such names and addresses as
contemplated hereunder, and each Owner shall be deemed to have agreed not to
hold the Depositor, the Property Trustee or the Administrative Trustees
accountable by reason of the disclosure of its name and address, regardless of
the source from which such information was derived.
SECTION 5.09. Maintenance of Office or Agency; Transfer Agent. The
------------------------------------------------
Administrative Trustees shall maintain an office or offices or agency or
agencies where Definitive Capital Securities Certificates, if issued, may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Trustees in respect of the Trust Securities may be
served. The Administrative Trustees initially designate The Bank of New York,
101 Barclay Street, Floor 21 West, New York, New York 10286, as its corporate
trust office for such purposes. The
41
Administrative Trustees shall give prompt written notice to the Depositor and to
the Securityholders of any change in the location of the Securities Register or
any such office or agency. The Bank shall act as initial transfer agent for the
Trust Securities.
SECTION 5.10. Appointment of Paying Agent. The Paying Agent shall
----------------------------
make Distributions to Securityholders from the Payment Account and shall report
the amounts of such Distributions to the Property Trustee and the Administrative
Trustees. Any Paying Agent shall have the revocable power to withdraw funds
from the Payment Account for the purpose of making the Distributions referred to
above. The Administrative Trustees may revoke such power and remove any Paying
Agent if such Administrative Trustees determine in their sole discretion that
such Paying Agent shall have failed to perform its obligations under this
Declaration of Trust in any material respect. The Paying Agent shall initially
be the Bank, and any co-paying agent chosen by the Bank, and acceptable to the
Administrative Trustees and the Depositor. Any Person acting as Paying Agent
shall be permitted to resign as Paying Agent upon 30 days' written notice to the
Administrative Trustees, the Property Trustee and the Depositor. In the event
that the Bank shall no longer be the Paying Agent or a successor Paying Agent
shall resign or its authority to act be revoked, the Administrative Trustees
shall appoint a successor that is acceptable to the Property Trustee and the
Depositor to act as Paying Agent (which shall be a bank or trust company). The
Administrative Trustees shall cause such successor Paying Agent or any
additional Paying Agent appointed by the Administrative Trustees to execute and
deliver to the Trustees an instrument in which such successor Paying Agent or
additional Paying Agent shall agree with the Trustees that as Paying Agent, such
successor Paying Agent or additional Paying Agent will hold all sums, if any,
held by it for payment to the Securityholders in trust for the benefit of the
Securityholders entitled thereto until such sums shall be paid to such
Securityholders. The Paying Agent shall return all unclaimed funds to the
Property Trustee and upon removal of a Paying Agent such Paying Agent shall also
return all funds in its possession to the Property Trustee. The provisions of
Sections 8.01, 8.03 and 8.06 herein shall apply to the Bank also in its role as
Paying Agent, for so long as the Bank shall act as Paying Agent and, to the
extent applicable, to any other paying agent appointed hereunder. Any reference
in this Declaration of Trust to the Paying Agent shall include any co-paying
agent unless the context requires otherwise.
42
SECTION 5.11. Ownership of Common Securities by Depositor. The
--------------------------------------------
Depositor shall acquire and retain beneficial and record ownership of the Common
Securities. To the fullest extent permitted by law, other than a transfer in
connection with a consolidation or merger of the Depositor into another
corporation, or any conveyance, transfer or lease by the Depositor of its
properties and assets substantially as an entirety to any Person, pursuant to
Section 8.01 of the Indenture, any attempted transfer of the Common Securities
shall be void. The Administrative Trustees shall cause each Common Securities
Certificate issued to the Depositor to contain a legend stating "THIS
CERTIFICATE IS NOT TRANSFERABLE".
SECTION 5.12. Notices to Clearing Agency. To the extent that a
---------------------------
notice or other communication to the Owners is required under this Declaration
of Trust, for so long as Capital Securities are represented by a Global
Securities Certificate, the Trustees shall give all such notices and
communications specified herein to be given to Owners to the Clearing Agency,
and shall have no obligations to give duplicates thereof to the Owners.
SECTION 5.13. Rights of Securityholders. (a) The legal title to the
--------------------------
Trust Property is vested exclusively in the Property Trustee (in its capacity as
such) in accordance with Section 2.09, and the Securityholders shall not have
any right or title therein other than the undivided beneficial ownership
interest in the assets of the Trust conferred by their Trust Securities and they
shall have no right to call for any partition or division of property, profits
or rights of the Trust except as described below. The Trust Securities shall be
personal property giving only the rights specifically set forth therein and in
this Declaration of Trust. The Trust Securities shall have no preemptive or
singular rights and when issued and delivered to Securityholders against payment
of the purchase price therefor will be fully paid and nonassessable. The
Holders, in their capacities as such, shall be entitled to the same limitation
of personal liability extended to stockholders of private corporations for
profit organized under the General Corporation Law of the State of Delaware.
(b) For so long as any Capital Securities remain Outstanding, if,
upon a Debenture Event of Default, the Debenture Trustee fails or the holders of
not less than 25% in principal amount of the outstanding Junior Subordinated
Debt Securities fail to declare the principal amount of all of the Junior
Subordinated Debt Securities to be immediately due and payable, the Holders of
at least 25% in Liquidation
43
Amount of the Capital Securities then Outstanding shall have such right by a
notice in writing to the Depositor and the Debenture Trustee with a copy to the
Property Trustee; and upon any such declaration such principal amount of and the
accrued interest on all of the Junior Subordinated Debt Securities shall become
immediately due and payable; provided that the payment of principal and interest
--------
on such Junior Subordinated Debt Securities shall remain subordinated to the
extent provided in the Indenture.
At any time after such a declaration of acceleration with respect to
the Junior Subordinated Debt Securities 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, the holders of a majority in principal amount of
the outstanding Junior Subordinated Debt Securities, by written notice to the
Property Trustee, the Depositor and the Debenture Trustee, may rescind and annul
such declaration and its consequences if:
(i) the Depositor has paid or deposited with the Debenture Trustee a
sum sufficient to pay
(A) all overdue installments of interest (including any Additional
Interest (as defined in the Indenture)) on all of the Junior
Subordinated Debt Securities,
(B) the principal of any Junior Subordinated Debt Securities
which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate borne by the Junior
Subordinated Debt Securities, and
(C) all sums paid or advanced by the Debenture Trustee under the
Indenture and the reasonable compensation, expenses, disbursements and
advances of the Debenture Trustee, its agents and counsel; and
(ii) all Events of Default with respect to the Junior Subordinated
Debt Securities, other than the non-payment of the principal of the Junior
Subordinated Debt Securities which has become due solely by such
acceleration, have been cured or waived as provided in Section 5.13 of the
Indenture.
If such holders of the Junior Subordinated Debt Securities fail to
annul any such declaration and waive such default, the Holders of Capital
Securities representing a
44
majority in aggregate Liquidation Amount of all the Outstanding Capital
Securities shall also have the right to rescind and annul such declaration and
its consequences by written notice to the Depositor, the Property Trustee and
the Debenture Trustee, subject to the satisfaction of the conditions set forth
in Clause (i) and (ii) of this Section 5.13(b).
Should the holders of a majority in aggregate principal amount of the
outstanding Junior Subordinated Debt Securities fail to take such actions, the
Holders of a majority in aggregate Liquidation Amount of the Capital Securities
may, on behalf of the Holders of all the Capital Securities, waive any past
default under the Indenture, except a default in the payment of principal or
interest (unless such 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 in
respect of a covenant or provision which under the Indenture cannot be modified
or amended without the consent of the holder of each outstanding Junior
Subordinated Debt Security. No such rescission shall affect any subsequent
default or impair any right consequent thereon.
Upon receipt by the Property Trustee of written notice declaring such
an acceleration, or rescission and annulment thereof, by Holders of the Capital
Securities all or part of which is represented by Global 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 Property Trustee receives such notice. The
Holders on such record date, or their duly designated proxies, and only such
Persons, shall be entitled to join in such notice, whether or not such Holders
remain Holders after such record date; provided that, unless such declaration of
--------
acceleration, or rescission and annulment, as the case may be, shall have become
effective by virtue of the requisite percentage having joined in such notice
prior to the day which 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 which has been canceled
pursuant to the proviso to the preceding sentence, in which
45
event a new record date shall be established pursuant to the provisions of this
Section 5.13(b).
(c) For so long as any Capital Securities remain Outstanding, to the
fullest extent permitted by law and subject to the terms of this Declaration of
Trust and the Indenture, upon a Debenture Event of Default specified in Section
5.01(1) or 5.01(2) of the Indenture, any Holder of Capital Securities shall have
the right to institute a proceeding directly against the Depositor, pursuant to
Section 5.08 of the Indenture, for enforcement of payment to such Holder of the
principal amount of or interest (including any Additional Interest) on Junior
Subordinated Debt Securities having a principal amount equal to the aggregate
Liquidation Amount of the Capital Securities held by such Holder (a "Direct
Action"). Except as set forth in Sections 5.13(b) and 5.13(c) hereof, the
Holders of Capital Securities shall have no right to exercise directly any right
or remedy available to the holders or, or in respect of, the Junior Subordinated
Debt Securities.
(d) A Securityholder may institute a legal proceeding directly
against the Guarantor under the Guarantee to enforce its rights under the
Guarantee without first instituting a legal proceeding against the Trust or any
person or entity.
ARTICLE VI
Acts of Securityholders; Meetings; Voting
-----------------------------------------
SECTION 6.01. Limitations on Capital Securityholder's Voting Rights.
------------------------------------------------------
(a) Except as provided in this Declaration of Trust and in the Indenture and as
otherwise required by law, no Holder of Capital Securities shall have any right
to vote or in any manner otherwise control the administration, operation and
management of the Trust or the obligations of the parties hereto, nor shall
anything herein set forth, or contained in the terms of the Trust Securities
Certificates, be construed so as to constitute the Capital Securityholders from
time to time as partners or members of an association. Unless a Debenture Event
of Default shall have occurred and be continuing, any Trustee may be removed at
any time by the vote of the Common Securityholder. The right to vote to
appoint, remove or replace the Administrative Trustees is vested exclusively in
the Depositor as the Holder of the Common Securities.
(b) So long as any Junior Subordinated Debt Securities are held by
the Property Trustee, the Trustees
46
shall not (i) direct the time, method and place of conducting any proceeding for
any remedy available to the Debenture Trustee, or executing any trust or power
conferred on the Property Trustee with respect to such Junior Subordinated Debt
Securities, (ii) waive any past default which is waivable under Section 5.13 of
the Indenture, (iii) exercise any right to rescind or annul a declaration that
the principal of all the Junior Subordinated Debt Securities shall be due and
payable or (iv) consent to any amendment, modification or termination of the
Indenture or the Junior Subordinated Debt Securities, where such consent shall
be required, without, in each case, obtaining the prior approval of the Holders
of at least a majority in aggregate Liquidation Amount of all Outstanding
Capital Securities; provided, however, that where a consent under the Indenture
-------- -------
would require the consent of each holder of Junior Subordinated Debt Securities
affected thereby, no such consent shall be given by the Property Trustee without
the prior written consent of each Holder of Capital Securities. The Trustees
shall not revoke any action previously authorized or approved by a vote of the
Holders of Capital Securities, except by a subsequent vote of the Holders of
Capital Securities. The Property Trustee shall notify all Holders of the
Capital Securities of any notice of default received from the Debenture Trustee
with respect to the Junior Subordinated Debt Securities. In addition to
obtaining the foregoing approvals of the Holders of the Capital Securities,
prior to taking any of the foregoing actions, the Trustees shall, at the expense
of the Depositor, obtain an Opinion of Counsel experienced in such matters to
the effect that the Trust will not be classified as an association taxable as a
corporation for United States federal income tax purposes as a result of such
action and such action would not cause the Trust to be classified as other than
a grantor trust.
(c) If any proposed amendment to the Declaration of Trust provides
for, or the Trustees otherwise propose to effect, (i) any action that would
adversely affect in any material respect the interests, powers, preferences or
special rights of the Trust Securities, whether by way of amendment to the
Declaration of Trust or otherwise, or (ii) the dissolution, winding-up or
termination of the Trust, other than pursuant to the terms of this Declaration
of Trust, then the Holders of Outstanding Trust Securities as a class will be
entitled to vote on such amendment or proposal.
SECTION 6.02. Notice of Meetings. Notice of all meetings of the
-------------------
Securityholders, stating the time, place and purpose of the meeting, shall be
given by the Property
47
Trustee pursuant to Section 10.09 to each Securityholder of record, at his
registered address, at least 15 days and not more than 90 days before the
meeting. At any such meeting, any business properly before the meeting may be
so considered whether or not stated in the notice of the meeting. Any adjourned
meeting may be held as adjourned without further notice.
SECTION 6.03. Meetings of Securityholders. No annual meeting of
----------------------------
Securityholders is required to be held. The Administrative Trustees, however,
shall call a meeting of Securityholders to vote on any matter upon the written
request of the Securityholders of record of 25% of the Securities (based upon
their Liquidation Amount) and the Administrative Trustees or the Property
Trustee may, at any time in their discretion, call a meeting of Securityholders
to vote on any matters as to which Securityholders are entitled to vote.
Securityholders of record of 50% of the Outstanding Securities (based
upon their Liquidation Amount), present in person or represented by proxy, shall
constitute a quorum at any meeting of Securityholders.
If a quorum is present at a meeting, an affirmative vote by the
Securityholders of record present, in person or by proxy, holding more than a
majority of the Securities (based upon their Liquidation Amount) held by the
Securityholders of record present, either in person or by proxy, at such meeting
shall constitute the action of the Securityholders, unless this Declaration of
Trust requires a greater number of affirmative votes.
SECTION 6.04. Voting Rights. Securityholders shall be entitled to
--------------
one vote for each $1,000 of Liquidation Amount represented by their Outstanding
Trust Securities in respect of any matter as to which such Securityholders are
entitled to vote.
SECTION 6.05. Proxies, etc. At any meeting of Securityholders, any
-------------
Securityholder entitled to vote thereat may vote by proxy; provided that no
--------
proxy shall be voted at any meeting unless it shall have been placed on file
with the Administrative Trustees, or with such other officer or agent of the
Trust as the Administrative Trustees may direct, for verification prior to the
time at which such vote shall be taken. Proxies may be solicited in the name of
the Property Trustee or one or more officers of the Property Trustee. Only
Securityholders of record shall be entitled to vote. When Trust Securities are
held jointly by several persons, any one of them may vote at any meeting in
48
person or by proxy in respect of such Securities, but if more than one of them
shall be present at such meeting in person or by proxy, and such joint owners or
their proxies so present disagree as to any vote to be cast, such vote shall not
be received in respect of such Securities. A proxy purporting to be executed by
or on behalf of a Securityholder shall be deemed valid unless challenged at or
prior to its exercise, and the burden of proving invalidity shall rest on the
challenger. No proxy shall be valid more than three years after its date of
execution.
SECTION 6.06. Securityholder Action by Written Consent. Any action
-----------------------------------------
which may be taken by Securityholders at a meeting may be taken without a
meeting if Securityholders holding more than a majority of all Outstanding
Securities (based upon their Liquidation Amount) entitled to vote in respect of
such action (or such larger proportion thereof as shall be required by any
express provision of this Declaration of Trust) shall consent to the action in
writing.
SECTION 6.07. Record Date for Voting and Other Purposes. For the
------------------------------------------
purposes of determining the Securityholders who are entitled to notice of and to
vote at any meeting or by written consent, or to participate in any Distribution
in respect of which a record date is not otherwise provided for in this
Declaration of Trust, or for the purpose of any other action, the Administrative
Trustees may from time to time fix a date, not more than 90 days prior to the
date of any meeting of Securityholders or the payment of a distribution or other
action, as the case may be, as a record date for the determination of the
identity of the Securityholders of record for such purposes.
SECTION 6.08. Acts of Securityholders. Any request, demand,
------------------------
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Declaration of Trust to be given, made or taken by
Securityholders or Owners may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Securityholders or
Owners in person or by an agent duly appointed in writing; and, except as
otherwise expressly provided herein, such action shall become effective when
such instrument or instruments are delivered to an Administrative Trustee. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Securityholders or
Owners signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Declaration of Trust and (subject to
49
Section 8.01) conclusive in favor of the Trustees, if made in the manner
provided in this Section.
The fact and date of the execution by any Person of any such
instrument or writing may be provided by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which any Trustee receiving the same deems sufficient.
The ownership of Trust Securities shall be proved by the Securities
Registrar.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Securityholder of any Trust Security shall bind every future
Securityholder of the same Trust Security and the Securityholder of every Trust
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustees or the Trust in reliance thereon, whether or not
notation of such action is made upon such Trust Security.
Without limiting the foregoing, a Securityholder entitled hereunder to
take any action hereunder with regard to any particular Trust Security may do so
with regard to all or any part of the Liquidation Amount of such Trust Security
or by one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such Liquidation Amount.
If any dispute shall arise between the Securityholders and the
Administrative Trustees or among such Securityholders or Trustees with respect
to the authenticity, validity or binding nature of any request, demand,
authorization, direction, consent, waiver or other Act of such Securityholder or
Trustee under this Article VI, then the determination of such matter by the
Property Trustee shall be conclusive with respect to such matter.
A Holder may institute a legal proceeding directly against the
Depositor under the Guarantee Agreement to
50
enforce its rights under the Guarantee Agreement without first instituting a
legal proceeding against the Guarantee Trustee (as defined in the Guarantee
Agreement), the Trust, any Trustee or any person or entity.
SECTION 6.09. Inspection of Records. Upon reasonable notice to the
----------------------
Administrative Trustees and the Property Trustee, the records of the Trust shall
be open to inspection by Securityholders during normal business hours for any
purpose reasonably related to such Securityholder's interest as a
Securityholder.
ARTICLE VII
Representations and Warranties
------------------------------
SECTION 7.01. Representations and Warranties of the Property Trustee
------------------------------------------------------
and the Delaware Trustee. The Property Trustee and the Delaware Trustee, each
- -------------------------
severally on behalf of and as to itself, hereby represents and warrants for the
benefit of the Depositor and the Securityholders that:
(a) The Property Trustee is a banking corporation with trust powers,
duly organized, validly existing and in good standing under the laws of New
York, with trust power and authority to execute and deliver, and to carry
out and perform its obligations under the terms of this Declaration.
(b) The execution, delivery and performance by the Property Trustee
of the Declaration has been duly authorized by all necessary corporate
action on the part of the Property Trustee; and the Declaration has been
duly executed and delivered by the Property Trustee, and constitutes a
legal, valid and binding obligation of the Property Trustee, enforceable
against it in accordance with its terms, subject to applicable bankruptcy,
reorganization, moratorium, insolvency, and other similar laws affecting
creditors' rights generally and to general principles of equity and the
discretion of the court (regardless of whether the enforcement of such
remedies is considered in a proceeding in equity or at law).
(c) The execution, delivery and performance of the Declaration by the
Property Trustee does not conflict with or constitute a breach of the
certificate of incorporation or by-laws of the Property Trustee.
51
(d) At the Closing Date, the Property Trustee has not knowingly
created any liens or encumbrances on such Trust Securities.
(e) No consent, approval or authorization of, or registration with or
notice to, any New York State or federal banking authority is required for
the execution, delivery or performance by the Property Trustee, of the
Declaration.
(f) The Delaware Trustee is duly organized, validly existing and in
good standing under the laws of the State of Delaware, with trust power and
authority to execute and deliver, and to carry out and perform its
obligations under the terms of, the Declaration.
(g) The execution, delivery and performance by the Delaware Trustee
of the Declaration has been duly authorized by all necessary corporate
action on the part of the Delaware Trustee; and the Declaration has been
duly executed and delivered by the Delaware Trustee, and 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' right generally and to general principles of equity and the
discretion of the court regardless of whether the enforcement of such
remedies is considered in a proceeding in equity or at law).
(h) The execution, delivery and performance or the Declaration by the
Delaware Trustee does not conflict with or constitute a breach of the
certificate of incorporation or by-laws of the Delaware Trustee.
(i) No consent, approval or authorization of, or registration with or
notice to, any state or federal banking authority is required for the
execution, delivery or performance by the Delaware Trustee, of this
Declaration.
(j) The Delaware Trustee is an entity which has its principal place
of business in the State of Delaware.
SECTION 7.02. Representations and Warranties of Depositor. The
--------------------------------------------
Depositor hereby represents and warrants for the benefit of the Securityholders
that the Trust Securities Certificates issued at the Closing Date on behalf of
the Trust have been duly authorized and will have been duly and
52
validly executed, issued and delivered by an Administrative Trustee pursuant to
the terms and provisions of, and in accordance with the requirements of, this
Declaration of Trust, and the Securityholders will be, as of each such date,
entitled to the benefits of this Declaration of Trust.
ARTICLE VIII
The Trustees
------------
SECTION 8.01. Certain Duties and Responsibilities. (a) The duties
------------------------------------
and responsibilities of the Trustees shall be as provided by this Declaration of
Trust and, in the case of the Property Trustee, by the Trust Indenture Act;
provided, however, that the Property Trustee shall not be subject to the
- -------- -------
provisions of the Trust Indenture Act until such time as this Declaration of
Trust becomes qualified under the Trust Indenture Act upon the effectiveness of
a registration statement pursuant to the Registration Agreement.
Notwithstanding the foregoing, no provisions of this Declaration of Trust shall
require the Trustees to expend or risk their own funds or otherwise incur any
financial liability in the performance of any of their duties hereunder, or in
the exercise of any of their rights or powers, if they shall have reasonable
grounds for believing that repayment of such funds or indemnity satisfactory to
it against such risk or liability is not reasonably assured to it. Whether or
not herein expressly so provided, every provision of this Declaration of Trust
relating to the conduct or affecting the liability of or affording protection to
the Trustees shall be subject to the provisions of this Article. Nothing in
this Declaration of Trust shall be construed to release an Administrative
Trustee from liability for his own grossly negligent action, his own grossly
negligent failure to act, or his own wilful misconduct. To the extent that, at
law or in equity, an Administrative Trustee has duties (including fiduciary
duties) and liabilities relating thereto to the Trust or to the Securityholders,
such Administrative Trustee shall not be liable to the Trust or to any
Securityholder for such Trustee's good faith reliance on the provisions of this
Declaration of Trust. The provisions of this Declaration of Trust, to the
extent that they restrict the duties and liabilities of the Administrative
Trustees otherwise existing at law or in equity, are agreed by the Depositor
and the Securityholders to replace such other duties and liabilities of the
Administrative Trustees.
(b) All payments made by the Property Trustee or a Paying Agent in
respect of the Trust Securities shall be made only from the revenue and proceeds
from the Trust
53
Property and only to the extent that there shall be sufficient revenue or
proceeds from the Trust Property to enable the Property Trustee or a Paying
Agent to make payments in accordance with the terms hereof. Each Securityholder,
by its acceptance of a Trust Security, agrees that it will look solely to the
revenue and proceeds from the Trust Property to the extent legally available for
distribution to it as herein provided and that the Trustees are not personally
liable to it for any amount distributable in respect of any Trust Security or
for any other liability in respect of any Trust Security. This Section 8.01(b)
does not limit the liability of the Trustees expressly set forth elsewhere in
this Declaration of Trust or, in the case of the Property Trustee, in the Trust
Indenture Act, if applicable.
(c) No provision of this Declaration of Trust shall be construed to
relieve the Property Trustee from liability for its own negligent action, its
own negligent failure to act, or its own wilful misconduct, except that:
(i) the Property Trustee shall not be liable for any error of judgment
made in good faith by an authorized officer of the Property Trustee, unless
it shall be proved that the Property Trustee was negligent in ascertaining
the pertinent facts;
(ii) the Property Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of not less than a majority in Liquidation
Amount of the Trust Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the Property Trustee,
or exercising any trust or power conferred upon the Property Trustee under
this Declaration of Trust;
(iii) the Property Trustee's sole duty with respect to the custody,
safe keeping and physical preservation of the Junior Subordinated Debt
Securities and the Payment Account shall be to deal with such Property in a
similar manner as the Property Trustee deals with similar property for its
own account, subject to the projections and limitations on liability
afforded to the Property Trustee under this Declaration of Trust and the
Trust Indenture Act;
(iv) the Property Trustee shall not be liable for any interest on any
money received by it except as it may otherwise agree with the Depositor;
and money held by the Property Trustee need not be segregated from
54
other funds held by it except in relation to the Payment Account maintained
by the Property Trustee pursuant to Section 3.01 and except to the extent
otherwise required by law; and
(v) the Property Trustee shall not be responsible for monitoring the
compliance by the Administrative Trustees or the Depositor with their
respective duties under this Declaration of Trust nor shall the Property
Trustee be liable for the default or misconduct of the Administrative
Trustees or the Depositor.
SECTION 8.02. Events of Default Notices; Deferral of Interest Payment
-------------------------------------------------------
Notices. Within five Business Days after the occurrence of any Event of Default
- --------
actually known to a Responsible Officer of the Property Trustee, the Property
Trustee shall transmit, in the manner and to the extent provided in Section
10.09, notice of such Event of Default to the Securityholders, the
Administrative Trustees and the Depositor, unless such Event of Default shall
have been cured or waived. The Depositor and the Administrative Trustees are
required to file annually with the Property Trustee a certificate as to whether
or not they are in compliance with all the conditions and covenants applicable
to them under the Declaration.
Within five Business Days after the receipt of notice of the
Depositor's exercise of its right to defer the payment of interest on the Junior
Subordinated Debt Securities pursuant to the Indenture, the Administrative
Trustee shall transmit, in the manner and to the extent provided in Section
10.09, notice of such exercise to the Securityholders and the Property Trustee,
unless such exercise shall have been revoked.
SECTION 8.03. Certain Rights of Property Trustee. Subject to the
-----------------------------------
provisions of Section 8.01:
(a) the Property Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting in good faith upon any
resolution, Opinion of Counsel, certificate, written representation of a
Holder or transferee, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order,
appraisal, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
55
(b) if (i) in performing its duties under this Declaration of Trust
the Property Trustee is required to decide between alternative courses of
action or (ii) in construing any of the provisions of this Declaration of
Trust the Property Trustee finds the same ambiguous or inconsistent with
any other provisions contained herein or (iii) the Property Trustee is
unsure of the application of any Provision of this Declaration of Trust,
then, except as to any matter as to which the Securityholders are entitled
to vote under the terms of this Declaration of Trust, the Property Trustee
shall deliver a notice to the Depositor requesting written instructions of
the Depositor as to the course of action to be taken and the Property
Trustee shall take such action, or refrain from taking such action, as the
Property Trustee shall be instructed in writing to take, or to refrain from
taking, by the Depositor; provided, however, that if the Property Trustee
-------- -------
does not receive such instructions of the Depositor within ten Business
Days after it has delivered such notice, or such reasonably shorter period
of time set forth in such notice (which to the extent practicable shall not
be less than two Business Days), it may, but shall be under no duty to,
take or refrain from taking such action not inconsistent with this
Declaration of Trust as it shall deem advisable and in the best interests
of the Securityholders, in which event the Property Trustee shall have no
liability except for its own bad faith, negligence or wilful misconduct;
(c) any direction or act of the Depositor or the Administrative
Trustee contemplated by this Declaration of Trust shall be sufficiently
evidenced by an Officers' Certificate;
(d) whenever in the administration of this Declaration of Trust, the
Property Trustee shall deem it desirable that a matter be established
before undertaking, suffering or omitting any action hereunder, the
Property Trustee (unless other evidence is herein specifically prescribed)
may, in the absence of bad faith on its part, request and conclusively rely
upon an Officers' Certificate which, upon receipt of such request, shall be
promptly delivered by the Depositor or the Administrative Trustees (which
Officers' Certificate will be evidence only for purposes of determining
entitlement to indemnification of the Property Trustee from the Depositor
but not with respect to any liability to Securityholders);
56
(e) the Property Trustee shall have no duty to see to any recording,
filing or registration of any instrument (including any financing or
continuation statement or any filing under tax or securities laws) or any
rerecording, refiling or reregistration thereof;
(f) the Property Trustee may consult with counsel of its selection
(which counsel may be counsel to the Depositor or any of its Affiliates,
and may include any of its employees) and the advice of such counsel shall
be full and complete authorization and protection in respect of any action
taken suffered or omitted by it hereunder in good faith and in reliance
thereon and in accordance with such advice, such counsel may be counsel to
the Depositor or any of its Affiliates, and may include any of its
employees; the Property Trustee shall have the right at any time to seek
instructions concerning the administration of this Declaration of Trust
from any court of competent jurisdiction;
(g) the Property Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Declaration of Trust at the
request or direction of any of the Securityholders pursuant to this
Declaration of Trust, unless such Securityholders shall have offered to the
Property Trustee security or indemnity satisfactory to it against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(h) the Property Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, 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
Securityholders, but the Property Trustee may make such further inquiry or
investigation into such facts or matters as it may see fit;
(i) the Property Trustee may execute any of its trusts or powers
hereunder or perform any of its duties hereunder either directly or by or
through its agents or attorneys, and the Property 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 by it with due care
hereunder;
57
(j) whenever in the administration of this Declaration of Trust the
Property Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder, the Property Trustee (i) may request instructions from the
Holders of the Trust Securities which instructions may only be given by the
Holders of the same proportion in Liquidation Amount of the Trust
Securities as would be entitled to direct the Property Trustee under the
terms of the Trust 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 instructions;
(k) except as otherwise expressly provided by this Declaration of
Trust, the Property Trustee shall not be under any obligation to take any
action that is discretionary under the provisions of this Declaration of
Trust;
(l) when the Property 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; and
(m) the Property Trustee shall not be charged with knowledge or an
Event of Default unless a Responsible Officer of the Property Trustee
obtains actual knowledge of such event or the Property Trustee receives
written notice of such event from Securityholders holding at least 25% of
the Outstanding Trust Securities (based upon Liquidation Amount).
No provision of this Declaration of Trust shall be deemed to impose
any duty or obligation on the Property Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which the Property Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Property Trustee
shall be construed to be a duty.
SECTION 8.04. Not Responsible for Recitals. The recitals contained
-----------------------------
herein and in the Trust Securities
58
Certificates shall be taken as the statements of Trust, and the Trustees do not
assume any responsibility for their correctness. The Trustees shall not be
accountable for the use or application by the Depositor of the proceeds of the
Junior Subordinated Debt Securities.
SECTION 8.05. May Hold Securities. Except as provided in the
--------------------
definition of the term "Outstanding" in Article I, any Trustee or any other
agent of any Trustee or the Trust, in its individual or any other capacity, may
become the owner or pledgee of Trust Securities and, subject to Sections 8.08
and 8.13, may otherwise deal with the Trust with the same rights it would if it
were not a Trustee or such other agent.
SECTION 8.06. Compensation, Indemnity, Fees. Pursuant to
------------------------------
Section 10.06 of the Indenture, the Depositor, as borrower on the Junior
Subordinated Debt Securities, agrees:
(a) to pay to the Trustees from time to time such compensation as
shall from time to time be agreed to in writing by the Depositor and the
respective Trustees for all services rendered by them hereunder (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse the
Trustees upon request for all reasonable expenses, disbursements and
advances incurred or made by the Trustees in accordance with any provision
of this Declaration of Trust (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its negligence
or wilful misconduct;
(c) to the fullest extent permitted by applicable law, to indemnify
and hold harmless each Trustee and any employee or agent of the Trust or
its Affiliates (each referred to herein as an "Indemnified Person") from
and against any loss, damage, liability, tax, penalty, expense or claim of
any kind or nature whatsoever incurred by such Indemnified Person by reason
of the creation, operation or termination of the Trust or 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 authority conferred on such Indemnified
Person by this
59
Declaration of Trust, except that no Indemnified Person shall be entitled
to be indemnified in respect of any loss, damage or claim incurred by such
Indemnified Person by reason of negligence or wilful misconduct with
respect to such acts or omissions; and
(d) to the fullest extent permitted by applicable law, to advance
expenses (including legal fees) incurred by an Indemnified Person in
defending any claim, demand, action, suit or proceeding, from time to time,
prior to the final disposition of such claim, demand action, suit or
proceeding upon receipt by the Depositor of (i) a written affirmation by or
on behalf of the Indemnified Person of its or his good faith belief that it
or he has met the standard of conduct set forth in this Section 8.06 and
(ii) an undertaking by or on behalf of the Indemnified Person to repay such
amount if it shall be determined that the Indemnified Person is not
entitled to be indemnified as authorized in the preceding subsection.
The provisions of this Section 8.06 shall survive the termination of
this Declaration of Trust or the earlier resignation or removal of any Trustee.
No Trustee may claim any lien or charge on any Trust Property as a
result of any amount due pursuant to this Section 8.06.
The Depositor and any Trustee (in the case of the Property Trustee,
subject to Section 8.08 hereof) 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 none of the Trust, the
Holders, the Depositor or any such Trustee shall have any rights by virtue of
this Declaration of Trust 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. Neither the Depositor, nor any 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 the Depositor or any 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 Trustee may
engage or be interested in any financial or other transaction with the Depositor
or any Affiliate of the Depositor, or may act as depository for, trustee or
agent for, or act on any committee or body of
60
holders of, securities or other obligations of the Depositor or its Affiliates.
SECTION 8.07. Corporate Property Trustee Required; Eligibility of
---------------------------------------------------
Trustees. (a) There shall at all times be a Property Trustee hereunder with
- ---------
respect to the Trust Securities. The Property Trustee shall be a Person that is
a national or state chartered bank and eligible pursuant to the Trust Indenture
Act to act as such and has a combined capital and surplus of at least $50
million. If any such Person publishes reports of condition at least annually,
pursuant to law or to the requirements of its supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
the Property Trustee with respect to the Trust Securities shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article; provided, however, that the Property Trustee need not qualify under the
-------- -------
Trust Indenture Act until such time as this Declaration of Trust is qualified
under the Trust Indenture Act.
(b) There shall at all times be one or more Administrative Trustees
hereunder. Each Administrative Trustee shall be either a natural person who is
at least 21 years of age or a legal entity that shall act through one or more
persons authorized to bind that entity.
(c) There shall at all times be a Delaware Trustee. The Delaware
Trustee shall either be (i) a natural person who is at least 21 years of age and
a resident of the State of Delaware or (ii) a legal entity with its principal
place of business in the State of Delaware and that otherwise meets the
requirements of applicable Delaware law that shall act through one or more
persons authorized to bind such entity.
SECTION 8.08. Conflicting Interests. If the Property Trustee has or
----------------------
shall acquire a conflicting interest within the meaning of the Trust Indenture
Act, the Property Trustee shall either eliminate such interest or resign, to the
extent and in the manner provided by, and subject to the provisions of, the
Trust Indenture Act and this Declaration of Trust.
SECTION 8.09. Co-Trustees and Separate Trustee. Unless an Event of
---------------------------------
Default shall have occurred and be continuing, at any time or times, for the
purpose of meeting
61
the legal requirements of the Trust Indenture Act or of any jurisdiction in
which any part of the Trust Property may at the time be located, the Depositor
and the Administrative Trustees, by agreed action of the majority of such
Trustees, shall have power to appoint, and upon the written request of the
Administrative Trustees, the Depositor shall for such purpose join with the
Administrative Trustees in the execution, delivery, and performance of all
instruments and agreements necessary or proper to appoint, one or more Persons
approved by the Property Trustee either to act as co-trustee, jointly with the
Property Trustee, of all or any part of such Trust Property, or to the extent
required by law to act as separate trustee of any such property, in either case
with such powers as may be provided in the instrument of appointment, and to
vest in such Person or Persons in the capacity aforesaid, any property, title,
right or power deemed necessary or desirable, subject to the other provisions of
this Section. If the Depositor does not join in such appointment within 15 days
after the receipt by it of a request so to do, or in case a Debenture Event of
Default has occurred and is continuing, the Property Trustee alone shall have
power to make such appointment. Any co-trustee or separate trustee appointed
pursuant to this Section shall either be (i) a natural person who is at least 21
years of age and a resident of the United States or (ii) a legal entity with its
principal place of business in the United States that shall act through one or
more persons authorized to bind such entity.
Should any written instrument from the Depositor be required by any
co-trustee or separate trustee so appointed for more fully confirming to such
co-trustee or separate trustee such property, title, right or power, any and all
such instruments shall, on request, be executed, acknowledged and delivered by
the Depositor.
Every co-trustee or separate trustee shall, to the extent permitted by
law, but to such extent only, be appointed subject to the following terms,
namely:
(a) The Trust Securities shall be executed and made available for
delivery and all rights, powers, duties, and obligations hereunder in respect of
the custody of securities, cash and other personal property held by, or required
to be deposited or pledged with, the Trustees specified hereunder, shall be
exercised, solely by such Trustees and not by such co-trustee or separate
trustee.
(b) The rights, powers, duties and obligations hereby conferred or
imposed upon the Property Trustee in respect of any property covered by such
appointment shall be
62
conferred or imposed upon and exercised or performed by the Property Trustee or
by the Property Trustee and such co-trustee or separate trustee jointly, as
shall be provided in the instrument appointing such co-trustee or separate
trustee, except to the extent that under any law of any jurisdiction in which
any particular act is to be performed, the Property Trustee shall be incompetent
or unqualified to perform such act, in which event such rights, powers, duties
and obligations shall be exercised and performed by such co-trustee or separate
trustee.
(c) The Property Trustee at any time, by an instrument in writing
executed by it, with the written concurrence of the Depositor, may accept the
resignation of or remove any co-trustee or separate trustee appointed under this
Section, and, in case a Debenture Event of Default has occurred and is
continuing, the Property Trustee shall have power to accept the resignation of,
or remove, any such co-trustee or separate trustee without the concurrence of
the Depositor. Upon the written request of the Property Trustee, the Depositor
shall join with the Property Trustee in the execution, delivery and performance
of all instruments and agreements necessary or proper to effectuate such
resignation or removal. A successor to any co-trustee or separate trustee so
resigned or removed may be appointed in the manner provided in this Section.
(d) No co-trustee or separate trustee hereunder shall be personally
liable by reason of any act or omission of the Property Trustee or any other
trustee hereunder.
(e) The Property Trustee shall not be required to supervise any co-
trustee or separate trustee nor shall it be liable by reason of any act of a co-
trustee or separate trustee or any employees or agents of a co-trustee or
separate trustee.
(f) Any Act of Holders delivered to the Property Trustee shall be
deemed to have been delivered to each such co-trustee and separate trustee.
SECTION 8.10. Resignation and Removal; Appointment of Successor. 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 Section 8.11.
Subject to the immediately preceding paragraph, a Relevant Trustee may
resign at any time by giving written
63
notice thereof to the Securityholders. If the instrument of acceptance by the
successor Trustee required by Section 8.11 shall not have been delivered to the
Relevant Trustee within 30 days after the giving of such notice of resignation
or removal, the Relevant Trustee may petition, at the expense of the Trust, any
court of competent jurisdiction for the appointment of a successor Relevant
Trustee.
Unless a Debenture Event of Default shall have occurred and be
continuing, any Trustee may be removed at any time by Act of the Common
Securityholder. If a Debenture Event of Default shall have occurred and be
continuing, the Property Trustee or the Delaware Trustee, or both of them, may
be removed at such time by Act of the Holders of a majority in Liquidation
Amount of the Outstanding Capital Securities, delivered to the Relevant Trustee
(in its individual capacity and on behalf of the Trust). An Administrative
Trustee may be removed by Act of the Common Securityholder at any time.
If any Trustee shall resign, be removed or become incapable of acting
as Trustee, or if a vacancy shall occur in the office of any Trustee for any
cause, at a time when no Debenture Event of Default shall have occurred and be
continuing, the Common Securityholder, by Act of the Common Securityholder
delivered to the retiring Trustee, shall promptly appoint a successor Trustee or
Trustees and the retiring Trustee shall comply with the applicable requirements
of Section 8.11. If the Property Trustee or the Delaware Trustee shall resign,
be removed or become incapable of continuing to act as the Property Trustee or
the Delaware Trustee, as the case may be, at a time when a Debenture Event of
Default shall have occurred and be continuing, the Capital Securityholders, by
Act of the Capital Securityholders of a majority in Liquidation Amount of the
Capital Securities then Outstanding delivered to the retiring Relevant Trustee,
shall promptly appoint a successor Relevant Trustee or Trustees, and such
successor Trustee shall comply with the applicable requirements of Section 8.11.
If an Administrative Trustee shall resign, be removed or become incapable of
acting as Administrative Trustee, at a time when a Debenture Event of Default
shall have occurred and be continuing, the Common Securityholder, by Act of the
Common Securityholder delivered to the Administrative Trustee, shall promptly
appoint a successor Administrative Trustee or Administrative Trustees and such
successor Administrative Trustee or Trustees shall comply with the applicable
requirements of Section 8.11. If no successor Relevant Trustee shall have been
so appointed by the Common Securityholder or the Capital Securityholders and
accepted appointment in the manner required by Section 8.11,
64
any Securityholder who has been a Securityholder of Trust Securities for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor
Relevant Trustee.
The Property Trustee shall give notice of each resignation and each
removal of a Trustee and each appointment of a successor Trustee to all
Securityholders in the manner provided in Section 10.08 and shall give notice to
the Depositor. Each notice shall include the name of the successor Relevant
Trustee and the address of its Corporate Trust Office if it is the Property
Trustee.
Notwithstanding the foregoing or any other provision of this
Declaration of Trust, in the event any Administrative Trustee or a Delaware
Trustee who is a natural person dies, or becomes, in the opinion of the
Depositor, incompetent or incapacitated, or, in the case of an Administrative
Trustee, ceases to be an employee of the Depositor, the vacancy created by such
death, incompetence or incapacity may be filled by (a) the unanimous act of
remaining Administrative Trustees if there are at least two of them or
(b) otherwise by the Depositor (with the successor in each case being a Person
who satisfies the eligibility requirement for Administrative Trustees or
Delaware Trustee, as the case may be, set forth in Section 8.07).
SECTION 8.11. Acceptance of Appointment by Successor. In the case of
---------------------------------------
the appointment hereunder of a successor Trustee, such successor Trustee so
appointed shall execute, acknowledge and deliver to the Trust and to the
retiring Trustee any instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with the rights, powers, trusts and duties of the retiring Trustee, but,
on the request of the Depositor or the successor Trustee, such retiring Trustee
shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and if the Property Trustee is the resigning Trustee the
Property Trustee shall duly assign, transfer and deliver to the successor
Property Trustee all Trust Property and money held by such retiring Property
Trustee hereunder.
In case of the appointment hereunder of a successor Relevant Trustee,
the retiring Relevant Trustee and each successor Relevant Trustee with respect
to the
65
Trust Securities shall execute and deliver an amendment hereto wherein each
successor Relevant Trustee shall accept such appointment and which (a) 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
Trust Securities and the Trust and (b) shall add to or change any of the
provisions of this Declaration of Trust 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 if the same trust and that each such Relevant
Trustee shall be Trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Relevant Trustee;
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 Trust Securities and the Trust.
Upon written request of any such successor Relevant Trustee, the Trust
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Relevant Trustee all such rights, powers and
trusts referred to in the first or second preceding paragraph, as the case may
be.
No successor Relevant Trustee shall accept its appointment unless at
the time of such acceptance such successor Relevant Trustee shall be qualified
and eligible under this Article.
SECTION 8.12. Merger, Conversion, Consolidation or Succession to
--------------------------------------------------
Business. Any Person into which the Property Trustee, the Delaware Trustee or
- ---------
any Administrative Trustee that is not a natural person may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Relevant Trustee
shall be a party, or any Person succeeding to all or substantially all the
corporate trust business of such Relevant Trustee, shall be the successor of
such Relevant Trustee hereunder,
66
provided such Person shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto.
SECTION 8.13. Preferential Collection of Claims Against Depositor or
------------------------------------------------------
Trust. In case of the pendency of any receivership, insolvency, liquidation,
- ------
bankruptcy, reorganization, arrangement, adjustment, composition or other
similar judicial proceeding relative to the Trust or any other obligor upon the
Trust Securities or the property of the Trust or of such other obligor or their
creditors, the Property Trustee (irrespective of whether any Distributions on
the Trust Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Property Trustee shall
have made any demand on the Trust for the payment of any past due Distributions)
shall be entitled and empowered, to the fullest extent permitted by law, by
intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of any
Distributions owing and unpaid in respect of the Trust Securities and to
file such other papers or documents as may be necessary or advisable in
order to have the claims of the Property Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Property Trustee, its agents and counsel) and of the Holders allowed in
such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute to same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Property Trustee and, in the event the
Property Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Property Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee, its
agents and counsel, and any other amounts due the Property Trustee.
Nothing herein contained shall be deemed to authorize the Property
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or compensation affecting
the Trust Securities or the rights of any Holder
67
thereof or to authorize the Property Trustee to vote in respect of the claim of
any Holder in any such proceeding.
SECTION 8.14. Reports by Property Trustee. Upon qualification of
----------------------------
this Declaration of Trust under the Trust Indenture Act,
(a) Not later than the last calendar day in February of each year
commencing with the last calendar day in February of 1998, the Property Trustee
shall transmit to all Securityholders in accordance with Section 10.09, and to
the Depositor, a brief report dated as of the prior December 31 with respect to:
(i) its eligibility under Section 8.07 or, in lieu thereof, if to the
best of its knowledge it has continued to be eligible under said Section, a
written statement to such effect; and
(ii) any change in the property and funds in its possession as Property
Trustee since the date of its last report and any action taken by the
Property Trustee in the performance of its duties hereunder which it has
not previously reported and which in its opinion materially affects the
Trust Securities.
(b) In addition, the Property Trustee shall transmit to
Securityholders such reports concerning the Property Trustee and its actions
under this Declaration of Trust as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant thereto.
(c) A copy of each such report shall, at the time of such
transmission to the Holders, by filed with the Commission and with the
Depositor.
SECTION 8.15. Reports to the Property Trustee. Upon qualification of
--------------------------------
this Indenture under the Trust Indenture Act, the Depositor and the
Administrative Trustees on behalf of the Trust shall provide to the Property
Trustee such documents, reports and information as required by Section 314 of
the Trust Indenture Act (if any) and the compliance certificate required by
Section 314(a) of the Trust Indenture Act in the form, in the manner and at the
times required by Section 314 of the Trust Indenture Act.
SECTION 8.16. Evidence of Compliance with Conditions Precedent. Upon
-------------------------------------------------
qualification of this Indenture under the Trust Indenture Act, each of the
Depositor and the Administrative Trustees on behalf of the Trust shall provide
to the Property Trustee such evidence of compliance with any
68
conditions precedent, if any, provided for in this Declaration of Trust that
relate to any of the matters set forth in Section 314(c) of the Trust Indenture
Act. Any certificate or opinion required to be given by an officer pursuant to
Section 314(c)(1) of the Trust Indenture Act shall be given in the form of an
Officers' Certificate.
SECTION 8.17. Number of Trustees. (a) The number of Trustees shall
-------------------
be five; provided that the Holder of all of the Common Securities by written
--------
instrument may increase or decrease the number of Administrative Trustees. The
Property Trustee and the Delaware Trustee may be the same Person.
(b) If a Trustee ceases to hold office for any reason and the number
of Administrative Trustees is not reduced pursuant to Section 8.17(a), or if the
number of Trustees is increased pursuant to Section 8.17(a), a vacancy shall
occur. The vacancy shall be filed with a Trustee appointed in accordance with
Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not operate
to annul the Trust. Whenever a vacancy in the number of Administrative Trustee
shall occur, until such vacancy is filled by the appointment of an
Administrative Trustee in accordance with Section 8.10, the Administrative
Trustees in office, regardless of their number (and notwithstanding any other
Provision of this Agreement), shall have all the powers granted to the
Administrative Trustees and shall discharge all the duties imposed upon the
Administrative Trustees by this Declaration of Trust.
SECTION 8.18. Delegation of Power. (a) Any Administrative Trustee
--------------------
may, by power of attorney consistent with applicable law, delegate to any other
natural person over the age of 21 his or her power for the purpose of executing
any documents contemplated in Section 2.07(a), including any registration
statement or amendment thereto filed with the Commission, or making any other
governmental filing; and
(b) The Administrative Trustee shall have power to delegate from time
to time to such of their number or to the Depositor the doing of such things and
the execution of such instruments either in the name of the Trust or the names
of the Administrative Trustees or otherwise as the Administrative Trustees may
deem expedient, to the extent such delegation is not prohibited by applicable
law or
69
contrary to the provisions of this Declaration of Trust, as set forth herein.
ARTICLE IX
Termination, Liquidation and Merger
-----------------------------------
SECTION 9.01. Termination Upon Expiration Date; Termination Upon
--------------------------------------------------
Special Event. Unless earlier terminated, the Trust shall automatically
- --------------
terminate on April 15, 2037 (the "Expiration Date"), following the distribution
of the Trust Property in accordance with Section 9.04.
SECTION 9.02. Early Termination. The first to occur of any of the
-----------------
following events is an "Early Termination Event":
(a) the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation of, the Depositor or the Holder of the Common
Securities;
(b) the written direction to the Property Trustee from the Depositor,
as borrower with respect to the Junior Subordinated Debt Securities, at any
time (which direction is optional and wholly within the discretion of the
Depositor subject to receipt of prior approval of the Federal Reserve if
then required under applicable capital guidelines or policies of the
Federal Reserve (including upon the occurrence and continuation of a Tax
Event or a Capital Treatment Event in respect of the Trust)) to terminate
the Trust and, after satisfaction of liabilities to creditors of the Trust
as provided by applicable law, distribute a Like Amount of the Junior
Subordinated Debt Securities to Securityholders;
(c) the redemption of all of the Trust Securities in connection with
the redemption of all the Junior Subordinated Debt Securities (including
upon the occurrence and continuation of a Tax Event or a Capital Treatment
Event pursuant to Section 11.07(b) of the Indenture); and
(d) the entry of an order for dissolution of the Trust by a court of
competent jurisdiction.
SECTION 9.03. Termination. The respective obligations and
------------
responsibilities of the Trustees and the Trust created and continued hereby
shall terminate upon the latest to occur of the following: (a) the payment of
any
70
expenses owed by the Trust, (b) the distribution by the Property Trustee to
Securityholders upon the liquidation of the Trust pursuant to Section 9.04, or
upon the redemption of all of the Trust Securities pursuant to Section 4.02, of
all amounts required to be distributed hereunder upon the final payment of the
Trust Securities, and (c) the discharge of all administrative duties of the
Administrative Trustees, including the performance of any tax reporting
obligations with respect to the Trust or the Securityholders.
SECTION 9.04. Liquidation. (a) If an Early Termination Event
------------
specified in clause (a), (b) or (d) of Section 9.02 occurs or upon the
Expiration Date, the Trust shall be liquidated by the Trustees as expeditiously
as the Trustees determine to be possible by distributing, after satisfaction of
liabilities to creditors of the Trust as provided by applicable law, to each
Securityholder a Like Amount of Junior Subordinated Debt Securities, subject to
Section 9.04(d). Notice of liquidation shall be given by the Property Trustee
by first-class mail, postage prepaid, mailed not later than 30 nor more than 90
days prior to the Liquidation Date to each Holder at such Holder's address
appearing in the Securities Register. All notices of liquidation shall:
(i) state the Liquidation Date (which in the case of any liquidation
following the occurrence of a Special Event shall not be more than 90 days
following such occurrence);
(ii) state that from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be Outstanding and any Trust
Securities Certificates not surrendered for exchange will be deemed to
represent a Like Amount of Junior Subordinated Debt Securities; and
(iii) provide such information with respect to the mechanics by which
Holders may exchange Trust Securities Certificates for Junior Subordinated
Debt Securities, or if Section 9.04(d) applies receive a Liquidation
Distribution, as the Administrative Trustees or the Property Trustee shall
deem appropriate.
(b) Except where Section 9.02(c) or 9.04(d) applies, in order to
effect the liquidation of the Trust and distribution of the Junior Subordinated
Debt Securities to Securityholders, the Property Trustee shall establish a
record date for such distribution (which shall be not more than 45 days prior to
the Liquidation Date) and, either
71
itself acting as exchange agent or through the appointment of a separate
exchange agent, shall establish such procedures as it shall deem appropriate to
effect the distribution of Junior Subordinated Debt Securities in exchange for
the Outstanding Trust Securities Certificate.
(c) Except where Section 9.02(c) or 9.04(d) applies, after the
Liquidation Date, (i) the Trust Securities will no longer be deemed to be
Outstanding, (ii) certificates representing a Like Amount of Junior Subordinated
Debt Securities will be issued to Holders, upon surrender of such certificates
to the Administrative Trustees or their agent for exchange, (iii) any Trust
Securities Certificates not so surrendered for exchange will be deemed to
represent a Like Amount of Junior Subordinated Debt Securities accruing interest
at the rate provided for in the Junior Subordinated Debt Securities from the
last Distribution Date on which a Distribution was made on such Trust Securities
Certificates until such certificates are so surrendered (or until such
certificates are so surrendered, no payments of interest or principal will be
made to the Holders of Trust Securities Certificates with respect to such Junior
Subordinated Debt Securities) and (iv) all rights of Securityholders holding
Trust Securities will cease, except the right of such Securityholders to receive
Junior Subordinated Debt Securities upon surrender of Trust Securities
Certificates.
(d) In the event that, notwithstanding the other provisions of this
Section 9.04, whether because of an order for dissolution entered by a court of
competent jurisdiction or otherwise, distribution of the Junior Subordinated
Debt Securities in the manner provided herein is determined by the Property
Trustee not to be practical, the Trust Property shall be liquidated, and the
Trust shall be dissolved, wound-up or terminated, by the Property Trustee in
such manner as the Property Trustee determines. In such event, on the date of
the dissolution, winding-up or other termination of the Trust, Securityholders
will be entitled to receive out of the assets of the Trust available for
distribution to Securityholders after satisfaction of liabilities to creditors
of the Trust as provided by applicable law, an amount equal to the aggregate of
the Liquidation Amount plus accumulated and unpaid Distributions thereon to the
date of payment (such amount being the "Liquidation Distribution"). If, upon any
such dissolution, winding up or termination, the Liquidation Distribution can be
paid only in part because the Trust has insufficient assets available to pay in
full the aggregate Liquidation Distribution, then, subject to the next
succeeding sentence, the amounts payable by the Trust on the Trust Securities
72
shall be paid on a pro rata basis (based upon Liquidation Amounts). Holders of
the Common Securities will be entitled to receive Liquidation Distributions upon
any such dissolution, winding-up or termination pro rata (determined as
aforesaid) with Holders of Capital Securities, except that, if a Debenture Event
of Default has occurred and is continuing, the Capital Securities shall have a
priority over the Common Securities, and no payments shall be made with respect
to the Common Securities until Holders of Capital Securities have been paid in
full. Any such determination and liquidation by the Property Trustee shall be
conclusive upon the Securityholders and the Property Trustee shall have no
liability in connection therewith.
SECTION 9.05. Mergers, Consolidations, Amalgamations or Replacements
------------------------------------------------------
of the Trust. The Trust may not merge with or into, consolidate, amalgamate, or
- -------------
be replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other Person, except pursuant
to this Section 9.05. At the request of the Depositor, with the consent of the
Administrative Trustees and without the consent of the Holders of the Capital
Securities, the Property Trustee or the Delaware Trustee, the Trust may merge
with or into, consolidate, amalgamate, or be replaced by or convey, transfer or
lease its properties and assets substantially as an entirety to a trust
organized as such under the laws of any State; provided, however, that (i) such
-------- -------
successor entity either (a) expressly assumes all of the obligations of the
Trust with respect to the Capital Securities or (b) substitutes for the Capital
Securities other securities having substantially the same terms as the Capital
Securities (the "Successor Securities") so long as the Successor Securities rank
the same as the Capital Securities rank in priority with respect to
Distributions and payments upon liquidation, redemption and otherwise, (ii) the
Depositor expressly appoints a trustee of such successor entity possessing the
same powers and duties as the Property Trustee as the holder of the Junior
Subordinated Debt Securities, (iii) the Successor Securities (if Capital
Securities) are listed or traded, or any Successor Securities will be listed or
traded upon notification of issuance, on any national securities exchange or
other organization on which the Capital Securities are then listed or traded, if
any, (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, (v) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights,
73
preferences and privileges of the holders of the Capital Securities (including
any Successor Securities) in any material respect, (vi) such successor entity
has a purpose identical and limited to that of the Trust, (vii) prior to such
merger, consolidation, amalgamation, replacement, conveyance, transfer or lease,
the Depositor has received an Opinion of Counsel 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 Capital Securities (including any Successor Securities) in any material
respect, and (b) following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, neither the Trust nor such successor
entity will be required to register as an investment company under the 1940 Act
and (viii) the Depositor or any permitted successor or assignee owns all of the
common securities of such successor entity and guarantees the obligations of
such successor entity under the Successor Securities at least to the extent
provided by the Guarantee. Notwithstanding the foregoing, the Trust shall not,
except with the consent of holders of 100% in Liquidation Amount of the Trust
Securities, consolidate, amalgamate, merge with or into, or be replaced by or
convey, transfer or lease its properties and assets substantially as an entirety
to any other entity or permit any other entity to consolidate, amalgamate, merge
with or into, or replace it if such consolidation, amalgamation, merger,
replacement, conveyance, transfer or lease would cause the Trust or the
successor entity to be classified as an association taxable as a corporation or
as other than a grantor trust for United States federal income tax purposes.
ARTICLE X
Miscellaneous Provisions
------------------------
SECTION 10.01. Limitation of Rights of Securityholders. The death,
----------------------------------------
incapacity, liquidation, dissolution, termination or bankruptcy of any Person
having an interest, beneficial or otherwise, in Trust Securities shall not
operate to terminate this Declaration of Trust, nor entitle the legal
representatives or heirs of such person or any Securityholder for such person,
to claim an accounting, take any action or bring any proceeding in any court for
a partition or winding-up of the arrangements contemplated hereby, nor otherwise
affect the rights, obligations and liabilities of the parties hereto or any of
them.
74
SECTION 10.02. Liability of the Depositor. The Depositor, as
---------------------------
borrower with respect to the Junior Subordinated Debt Securities, shall be
liable for all the debts and obligations of the Trust (other than with respect
to payments of principal, interest, or premium, if any, on the Trust Securities)
to the extent not satisfied out of the Trust's assets.
SECTION 10.03. Amendment. (a) This Declaration of Trust may be
----------
amended from time to time by the Property Trustee, the Administrative Trustees
and the Depositor, without the consent of any Securityholders (i) to cure any
ambiguity, correct or supplement any provision herein which may be inconsistent
with any other provision herein, or to make any other provisions with respect to
matters or questions arising under this Declaration of Trust, which shall not be
inconsistent with the other provisions of this Declaration of Trust; (ii) to
modify, eliminate or add to any provisions of this Declaration of Trust to such
extent as shall be necessary to ensure that the Trust will be classified for
United States federal income tax purposes as a grantor trust or as other than an
association taxable as a corporation at all times that any Trust Securities are
Outstanding or to ensure that the Trust will not be required to register as an
investment company under the 1940 Act; or (iii) to modify, correct or supplement
in any respect the provisions relating to the exchange of the Trust Securities
for identical securities pursuant to the Registration Rights Agreement;
provided, however, that in the case of clauses (i) and (iii), such action shall
- -------- -------
not adversely affect in any material respect the interests of any
Securityholder, and any amendments of this Declaration of Trust shall become
effective when notice thereof is given to the Securityholders.
(b) Except as provided in Section 10.02(c) hereof, any provision of
this Declaration of Trust may be amended by the Trustees and the Depositor with
(i) the consent of Securityholders representing not less than a majority (based
upon Liquidation Amounts) of the Trust Securities then Outstanding and (ii)
receipt by the Trustees of an Opinion of Counsel to the effect that such
amendment or the exercise of any power granted to the Trustees in accordance
with such amendment will not affect the Trust's status as a grantor trust or as
other than an association taxable as a corporation for United States federal
income tax purposes or the Trust's exemption from status of an investment
company under the 1940 Act.
(c) In addition to and notwithstanding any other provision in this
Declaration of Trust, without the consent
75
of each affected Securityholder (such consent being obtained in accordance with
Section 6.03 or 6.08 hereof), this Declaration of Trust may not be amended to
(i) change the amount or timing of any Distribution on the Trust Securities or
otherwise adversely affect the amount of any Distribution required to be made in
respect of the Trust Securities as of a specified date or (ii) restrict the
right of a Securityholder to institute suit for the enforcement of any such
payment on or after such date. Notwithstanding any other provision herein,
without the unanimous consent of the Securityholders (such consent being
obtained in accordance with Section 6.03 or 6.08 hereof), this paragraph (c) of
this Section 10.02 may not be amended.
(d) Notwithstanding any other provisions of this Declaration of
Trust, no Trustee shall enter into or consent to any amendment to this
Declaration of Trust which would cause the Trust to fail or cease to qualify for
the exemption from status of an investment company under the 1940 Act or fail or
cease to be classified as a grantor trust or as other than an association
taxable as a corporation for United States federal income tax purposes.
(e) Notwithstanding anything in this Declaration of Trust to the
contrary, without the consent of the Depositor this Declaration of Trust may not
be amended in a manner which imposes any additional obligation on the Depositor.
(f) Notwithstanding any other provision of this Declaration of Trust,
no amendment to this Declaration of Trust may be made if, as a result of such
amendment, it would cause the Trust to fail to be classified as a grantor trust
or as other than an association taxable as a corporation for United States
federal income tax purposes.
(g) In the event that any amendment to this Declaration of Trust is
made, the Administrative Trustees shall promptly provide to the Depositor a copy
of such amendment.
(h) Neither the Property Trustee nor the Delaware Trustee shall be
required to enter into any amendment to this Declaration of Trust which affects
its own rights, duties or immunities under this Declaration of Trust or would
otherwise expose the Property Trustee to any liability or be contrary to
applicable law. The Property Trustee shall be entitled to receive an Officers'
Certificate stating that any amendment to this Declaration of Trust is in
compliance with this Declaration of Trust.
76
SECTION 10.04. Separability. In case any provision in this
-------------
Declaration of Trust or in the Trust Securities Certificates shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
SECTION 10.05. Governing Law. This Declaration of Trust and the
--------------
rights and obligations of each of the Securityholders, the Trust and the
Trustees with respect to this Declaration of Trust and the Trust Securities
shall be construed in accordance with and governed by the laws of the State of
Delaware without regard to its conflict of laws principles. The provisions of
Sections 3540 and 3561 of Title 12 of the Delaware Code shall not apply to this
Trust.
SECTION 10.06. Payments Due on Non-Business Day. If the date fixed
---------------------------------
for any payment on any Trust Security shall be a day that is not a Business Day,
then such payment need not be made on such date but may be made on the next
succeeding day that is a Business Day (except as otherwise provided in Section
4.02(d)), with the same force and effect as though made on the date fixed for
such payment, and no interest shall accrue thereon for the period after such
date.
SECTION 10.07. Successors. This Declaration of Trust shall be
-----------
binding upon and shall inure to the benefit of any successor to the Depositor,
the Trust or the Relevant Trustee, including any successor by operation of law.
Except in connection with a consolidation, merger or sale involving the
Depositor that is permitted under Article VI of the Indenture and pursuant to
which the assignee agrees in writing to perform the Depositor's obligations
hereunder, the Depositor shall not assign its obligations hereunder.
SECTION 10.08. Headings. The Article and Section headings are for
---------
convenience only and shall not affect the construction of this Declaration of
Trust.
SECTION 10.09. Reports, Notices and Demands. Any report, notice,
-----------------------------
demand or other communication which by any provision of this Declaration of
Trust is required or permitted to be given or served to or upon any
Securityholder or the Depositor may be given or served in writing by deposit
thereof, first class postage prepaid, in the United States mail, hand delivery
or facsimile transmission, in each case, addressed, (a) in the case of a Capital
Securityholder, to such Capital Securityholder as such Securityholder's name and
address may appear on the Securities Register, and (b) in the case of the Common
77
Securityholder or the Depositor, to Central Fidelity Banks, Inc., 1021 East Cary
Street, P.O. Box 27602, Richmond, Virginia 23261-7602, Attention: William N.
Stoyko, Secretary, facsimile no.: (809) 697-6936. Any notice to Capital
Securityholders may also be given to such owners as have, within two years
preceding the giving of such notice, filed their names and addresses with the
Property Trustee for that purpose. Such notice, demand or other communication
to or upon a Securityholder shall be deemed to have been sufficiently given or
made, for all purposes, upon hand delivery, mailing or transmission.
Any notice, demand or other communication which by any provision of
this Declaration of Trust is required or permitted to be given or served to or
upon the Trust, the Property Trustee, the Delaware Trustee or the Administrative
Trustees shall be given in writing addressed (until another address is published
by the Trust) as follows: (a) with respect to the Property Trustee to The Bank
of New York, 100 Barclay Street, Floor 21 West, New York, New York 10286; (b)
with respect to the Delaware Trustee to The Bank of New York (Delaware), White
Clay Center, Route 273, Newark, Delaware 19711; and (c) with respect to the
Administrative Trustees, to them at the address above for notices to the
Depositor, marked "Attention: Administrative Trustees of Central Fidelity
Capital Trust I". Such notice, demand or other communication to or upon the
Trust or the Property Trustee shall be deemed to have been sufficiently given or
made only upon actual receipt of the writing by the Trust or the Property
Trustee.
SECTION 10.10. Agreement Not to Petition. Each of the Trustees and
--------------------------
the Depositor agree for the benefit of the Securityholders that, until at least
one year and one day after the Trust has been terminated in accordance with
Article IX, they shall not file, or join in the filing of, a petition against
the Trust under any bankruptcy, insolvency, reorganization or other similar law
(including, without limitation, the United States Bankruptcy Code)
(collectively, "Bankruptcy Laws") or otherwise join in the commencement of any
proceeding against the Trust under any Bankruptcy Laws. In the event the
Depositor takes action in violation of this Section 10.10, the Property Trustee
agrees, for the benefit of Securityholders, that at the expense of the
Depositor, it shall file an answer with the bankruptcy court or otherwise
properly contest the filing of such petition by the Depositor against the Trust
or the commencement of such action and raise the defense that the Depositor has
agreed in writing not to take such action and should be estopped and precluded
therefrom and such other defenses, if any, as counsel for the Trustee or the
Trust
78
may assert. The provisions of this Section 10.09 shall survive the termination
of this Declaration of Trust.
SECTION 10.11. Trust Indenture Act; Conflict with Trust Indenture
--------------------------------------------------
Act. This Declaration of Trust will not be qualified under the Trust Indenture
- ----
Act except upon the effectiveness of a registration statement and the
consummation of an exchange offer pursuant to the Registration Agreement. By
its terms, however, this Declaration of Trust incorporates certain provisions of
the Trust Indenture Act. Upon the consummation of an exchange offer pursuant to
the Registration Agreement, clauses (a), (b), (c) and (d), below, shall apply to
this Declaration of Trust.
(a) This Declaration of Trust is subject to the provisions of the
Trust Indenture Act that are required to be part of this Declaration of Trust
and shall, to the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a trustee
for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required to be included in this Declaration of
Trust by any of the provisions of the Trust Indenture Act, such required
provision shall control. If any provision of this Declaration of Trust modifies
or excludes any provision of the Trust Indenture Act which may be so modified or
excluded, the latter provision shall be deemed to apply to this Declaration of
Trust as so modified or excluded, as the case may be.
(d) The application of the Trust Indenture Act to this Declaration of
Trust shall not affect the nature of the Securities as equity securities
representing undivided beneficial interests in the assets of the Trust.
SECTION 10.12. Acceptance of Terms of Declaration of Trust, Guarantee
------------------------------------------------------
and Indenture. THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST
- --------------
THEREIN BY OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY
SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL
ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN
SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS DECLARATION OF TRUST
AND AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE
AND THE INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST,
79
SUCH SECURITYHOLDER AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF THIS
DECLARATION OF TRUST SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE
TRUST AND SUCH SECURITYHOLDER AND SUCH OTHERS.
SECTION 10.13. Execution in Counterparts. This instrument may be
--------------------------
executed in any number of counterparts, each of which so executed shall be
deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
THIS AMENDED AND RESTATED DECLARATION OF TRUST is executed as of the
day and year first above written.
CENTRAL FIDELITY BANKS, INC.,
as Depositor
by /s/ William N. Stoyko
--------------------------------
Name: William N. Stoyko
Title: Executive Corporate
Vice President
THE BANK OF NEW YORK, as
Property Trustee
by /s/ Frederick Clark
----------------------------
Name: Frederick Clark
Title: Authorized
Signatory
THE BANK OF NEW YORK (DELAWARE), as Delaware
Trustee and not in its individual capacity
by /s/ Frederick Clark
------------------------------
Name: Frederick Clark
Title: Authorized
Signatory
/s/ Charles W. Tysinger
------------------------------
Charles W. Tysinger,
as Administrative Trustee
/s/ John T. Percy, Jr.
------------------------------
John T. Percy, Jr.,
as Administrative Trustee
/s/ William N. Stoyko
------------------------------
William N. Stoyko,
as Administrative Trustee
EXHIBIT A
CERTIFICATE OF TRUST OF
CENTRAL FIDELITY CAPITAL TRUST I
THIS CERTIFICATE OF TRUST of Central Fidelity Capital Trust I (the
"Trust"), dated as of April 2, 1997, is being duly executed and filed by The
Bank of New York (Delaware), a Delaware banking corporation, as trustee, Charles
W. Tysinger, an individual, as trustee, John T. Percy, Jr., an individual, as
trustee and William N. Stoyko, an individual, as trustee to form a business
trust under the Delaware Business Trust Act (12 Del. C. Section 3801 et seq.).
-- ---
1. Name. The name of the business trust formed hereby is Central
----
Fidelity Capital Trust I.
2. Delaware Trustee. The name and business address of the trustee of
----------------
the Trust with a principal place of business in the State of Delaware are as
follows: The Bank of New York (Delaware), White Clay Center, Route 273, Newark,
Delaware 19711.
3. Effective Date. This Certificate of Trust shall be effective upon
--------------
filing with the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, the undersigned, being the trustees of the Trust,
have executed this Certificate of Trust as of the date first written above.
THE BANK OF NEW YORK (DELAWARE), not in its
individual capacity but solely as trustee
by
-------------------------------------------
Name: Frederick Clark
Title: Authorized Signatory
2
-------------------------
Charles W. Tysinger,
as Trustee
-------------------------
John T. Percy, Jr.,
as Trustee
-------------------------
William N. Stoyko,
as Trustee
EXHIBIT B
IF THE CAPITAL SECURITY IS A RESTRICTED SECURITY,
[THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
(THE "SECURITIES ACT"), OR ANY STATE 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 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 PRIOR TO THE DATE WHICH IS TWO YEARS AFTER THE LATER
OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH CENTRAL
FIDELITY BANKS, INC. (THE "COMPANY") OR ANY AFFILIATE OF THE COMPANY WAS
THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) (THE
"RESALE RESTRICTIONS TERMINATION DATE") ONLY (A) TO THE COMPANY, (B)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT,
(C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE
144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT 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, (D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR"
WITHIN THE MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501
UNDER THE SECURITIES ACT ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR
THE ACCOUNT OF SUCH AN INSTITUTIONAL "ACCREDITED INVESTOR," FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH,
ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE PROPERTY TRUSTEE'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 DECLARATION
OF TRUST, A COPY OF WHICH MAY BE OBTAINED FROM THE COMPANY OR THE PROPERTY
TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF A HOLDER AFTER THE
RESALE RESTRICTIONS TERMINATION DATE.]
IF THE CAPITAL SECURITIES CERTIFICATE IS TO BE A GLOBAL SECURITIES
CERTIFICATE, INSERT--[This Capital Securities Certificate is a Global Capital
Securities
2
Certificate within the meaning of the Declaration of Trust hereinafter referred
to and is registered in the name of The Depository Trust Company (the
"Depositary") or a nominee of the Depositary. This Capital Securities
Certificate is exchangeable for Capital Securities Certificates registered in
the name of a person other than the Depositary or its nominee only in the
limited circumstances described in the Declaration of Trust and no transfer of
this Capital Securities Certificate (other than a transfer of this Capital
Securities Certificate as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary) may be registered except in the limited circumstances
described in the Declaration of Trust.
Unless this Capital Securities Certificate is presented by an
authorized representative of The Depository Trust Company (55 Water Street, New
York) to Central Fidelity Capital Trust I or its agent for registration of
transfer, exchange or payment, and any Capital Securities Certificate issued is
registered in the name of Cede & Co. or such other name as requested by an
authorized representative of The Depository Trust Company and any payment hereon
is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY A PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede
& Co., has an interest herein.]
The Capital Securities are issued, any may be transferred, only in blocks having
a Liquidation Amount of not less than $100,000 and integral multiples of $1,000
in excess thereof. Any transfer, sale or other disposition of Capital Securities
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 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.
NO EMPLOYEE BENEFIT OR OTHER PLAN 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 (EACH, A "PLAN"), NO ENTITY WHOSE
UNDERLYING ASSETS INCLUDE "PLAN ASSETS" BY REASON OF ANY PLAN'S INVESTMENT IN
THE ENTITY (A "PLAN ASSET ENTITY"), AND NO PERSON INVESTING "PLAN ASSETS" OF ANY
PLAN, MAY ACQUIRE OR HOLD THIS CAPITAL SECURITIES CERTIFICATE OR ANY INTEREST
HEREIN, UNLESS SUCH PURCHASER OR HOLDER IS ELIGIBLE FOR THE EXEMPTIVE RELIEF
AVAILABLE UNDER U.S. DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION
("PTCE") 96-23,
3
95-60, 91-38, 90-1 OR 84-14 WITH RESPECT TO SUCH PURCHASE OR HOLDING. ANY
PURCHASER OR HOLDER OF THIS CAPITAL SECURITIES CERTIFICATE OR ANY INTEREST
HEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING HEREOF
THAT IT EITHER (A) IS NOT A PLAN OR A PLAN ASSET ENTITY AND IS NOT PURCHASING
SUCH SECURITIES ON BEHALF OF OR WITH "PLAN ASSETS" OF ANY PLAN, OR (B) IS
ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER PTCE 96-23, 95-60, 91-38, 90-1
OR 84-14 WITH RESPECT TO SUCH PURCHASE OR HOLDING.
4
Liquidation Amount of
Capital Securities
Certificate Number
CUSIP NO. [ ]
Certificate Evidencing Capital Securities
of
Central Fidelity Capital Trust I
Floating Rate Capital Trust Pass-through Securities /SM/
(TruPS)/SM/
(Liquidation Amount $1,000 per Capital Security)
Central Fidelity Capital Trust I, a statutory business trust formed
under the laws of the State of Delaware (the "Trust"), hereby certifies that
Cede & Co. (the "Holder") is the registered owner of _________ ( ) Capital
Securities of the Trust in an aggregate liquidation amount of $_________,
representing an undivided beneficial interest in the assets of Trust and
designated Central Fidelity Capital Trust I Floating Rate Capital Trust Pass-
through Securities/SM/ (Liquidation Amount $1,000 per Capital Security) (the
"Capital Securities"). 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 as provided in
Section 5.05 of the Declaration of Trust (as defined below). The designations,
rights, privileges, restrictions, preferences and other terms and provisions of
the Capital Securities are set forth in, and this certificate and the Capital
Securities presented hereby are issued and shall in all respects be subject to
the terms and provisions of, the Amended and Restated Declaration of Trust of
the Trust dated as of April 23, 1997, as the same may be amended from time to
time (the "Declaration of Trust") among Central Fidelity Banks, Inc., as
Depositor, The Bank of New York, as Property Trustee, The Bank of New York
(Delaware), as Delaware Trustee, and the Administrative Trustees named therein,
including the designation of the terms of Capital Securities as set forth
therein. The Holder is entitled to the benefits of the Guarantee Agreement
entered into by Central Fidelity Banks, Inc., a Virginia corporation, and The
Bank of New York, as Guarantee Trustee, dated as of April 23, 1997 (the
"Guarantee"), to the extent provided therein. The Trust will furnish a copy of
the Declaration of Trust and the Guarantee to the Holder without charge upon
written request to the Trust at its principal place of business or registered
office.
5
Terms used but not defined herein have the meanings set forth in the
Declaration of Trust. The Declaration of Trust and this Capital Security shall
be governed by and construed in accordance with the laws of the State of
Delaware without regard to conflicts of laws principles thereof.
Upon receipt of this certificate, the Holder is bound by the
Declaration of Trust and is entitled to benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust
has executed this Certificate this _____ day of __________________.
CENTRAL FIDELITY CAPITAL TRUST I
by
------------------------------------
Name:
Title: Administrative Trustee
COUNTERSIGNED AND REGISTERED:
THE BANK OF NEW YORK, as
Property Trustee
by
--------------------------------------
Authorized Signatory
Dated:
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Capital
Security to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee)
and irrevocably appoints
agent to transfer this Capital Security Certificate on the books of the Trust.
The agent may substitute another to act for him or her.
Date:
---------------
Signature
----------------------------------------------------------------------
(Sign exactly as your name appears on the other side of this Capital
Security Certificate)
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant
to SEC Rule 17Ad-15.
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE
Liquidation Amount of
Certificate Number Common Securities
Certificate Evidencing Common Securities
of
Central Fidelity Capital Trust I
Floating Rate Common Securities
(Liquidation Amount $1,000 per Common Security)
Central Fidelity Capital Trust I, a statutory business trust formed
under the laws of the State of Delaware (the "Trust"), hereby certifies that
Central Fidelity Banks, Inc. (the "Holder") is the registered owner of
_____________________________( ) common securities of the Trust representing
beneficial interests of the Trust and designated the Floating Rate Common
Securities (Liquidation Amount $1,000 per Common Security) (the "Common
Securities"). Except as provided in Section 5.11 of the Declaration of Trust
(as defined below) the Common Securities are not transferable and any attempted
transfer hereof shall be void. The designations, rights, privileges,
restrictions, preferences and other terms and provisions of the Common
Securities are set forth in, and this certificate and the Common Securities
represented hereby are issued and shall in all respects be subject to the terms
and provisions of, the Amended and Restated Declaration of Trust of the Trust
dated as of April 23, 1997, as the same may be amended from time to time (the
"Declaration of Trust"), among Central Fidelity Banks, Inc., as Depositor, The
Bank of New York, as Property Trustee, The Bank of New York (Delaware), as
Delaware Trustee, and the Administrative Trustees named therein, including the
designation of the terms of the Common Securities as set forth therein. The
Trust will furnish a copy of the Declaration of Trust to the Holder without
charge upon written request to the Trust at its principal place of business or
registered office.
Terms used but not defined herein have the meanings set forth in the
Declaration of Trust. The Declaration of Trust and this Common Security shall
be governed by and construed in accordance with the laws of the State of
Delaware without regard to conflicts of laws principles thereof.
2
Upon receipt of this certificate, the Holder is bound by the
Declaration of Trust and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust
has executed this certificate this _____ day of __________________.
CENTRAL FIDELITY CAPITAL TRUST I
by
---------------------------------
Name:
Title: Administrative Trustee
COUNTERSIGNED AND REGISTERED:
THE BANK OF NEW YORK, as Property Trustee
by
---------------------------------
Authorized Signatory
Dated:
EXHIBIT D
[Form of Restricted Securities Certificate]
RESTRICTED CAPITAL SECURITIES CERTIFICATE
(For transfers pursuant to (S) 5.05(b)
of the Declaration of Trust)
[__________________________________],
as Security Registrar
[address]
Re: Floating Rate Capital Securities of
Central Fidelity Capital Trust I (the "Trust")
(the "Capital Securities")
----------------------------------------------
Reference is made to the Amended and Restated Declaration of Trust,
dated as of April 23, 1997 (the "Declaration of Trust"), among Central Fidelity
Banks, Inc., as Depositor, The Bank of New York, as Property Trustee, The Bank
of New York (Delaware), as Delaware Trustee, and the Administrative Trustees
named therein. Terms used herein and defined in the Declaration of Trust or in
Regulation D, Rule 144A or Rule 144 under the U.S. Securities Act of 1933, as
amended (the "Securities Act"), are used herein as so defined.
This certificate relates to $_______________ aggregate Liquidation
Amount of Capital Securities, which are evidenced by the following
certificate(s) (the "Specified Securities"):
CUSIP No(s).________________________________________
CERTIFICATE No(s).__________________________________
CURRENTLY IN BOOK-ENTRY FORM: __Yes __No (check one)
The person in whose name this certificate is executed below (the "Undersigned")
hereby certifies that either (i) it is the sole beneficial owner of the
Specified Securities or (ii) it is acting on behalf of all the beneficial owners
of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "Owner".
If the Specified Securities are represented by a Global Capital Securities
Certificate, they are held through the Clearing Agency or a Clearing Agency
Participant in the name of the Undersigned, as or on behalf of the Owner. If
the Specified Securities are not represented by a Global Capital Securities
2
Certificate, they are registered in the name of the Undersigned, as or on behalf
of the Owner.
The Owner has requested that the Specified Securities be transferred to a
person (the "Transferee") who will take delivery in the form of a Restricted
Capital Security. In connection with such transfer, the Owner hereby certifies
that, unless such transfer is being effected pursuant to an effective
registration statement under the Securities Act, it is being effected in
accordance with one of the following (CHECK ONE):
__(1) transferred to the Depositor; or
__(2) exchanged for the undersigned's own account without transfer; or
__(3) transferred pursuant to and in compliance with Rule 144A under the
Securities Act; or
__(4) to an institutional "accredited investor" within the meaning of
subparagraph (a)(1), (2), (3) or (7) of Rule 501 under the
Securities Act of 1933 that is acquiring the Capital Securities for
its own account, or for the account of such an institutional
"accredited investor," for investment purposes and not with a view
to, or for offer or sale in connection with, any distribution in
violation of the Securities Act; or
__(5) transferred pursuant to another available exemption from the
registration requirements of the Securities Act.
Unless such transfer is being effected in accordance with one of the above, the
Transfer Agent will refuse to register any of the Capital Securities evidenced
by this certificate in the name of any person other than the Holder thereof;
provided, however, that if (4) or (5) is applicable, the Transfer Agent may
- -------- -------
require, prior to registering any such transfer of the Capital Securities such
legal opinions, certifications and other information as the Trust has reasonably
requested to confirm that such transfer is being made pursuant to an exemption
from, or in a transaction not subject to, the registration requirements of the
Securities Act, such as the exemption provided by Rule 144 under such Act;
provided, further, that if (3) is applicable, the transferee must also certify
- -------- -------
that it is a qualified institutional buyer as defined in Rule 144A.
3
This certificate and the statements contained herein are made for your
benefit and the benefit of the Depositor, the Trust and the Initial Purchaser.
Dated:
----------------------------------------
(Print the name of the Undersigned, as
such term is defined in the second
paragraph of this certificate.)
By:
-------------------------------------
Name:
Title:
(If the Undersigned is a corporation,
partnership or fiduciary, the title of
the person signing on behalf of the
Undersigned must be stated.)