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EXHIBIT 4.5
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FIRST PREFERRED CAPITAL TRUST
AMENDED AND RESTATED
TRUST AGREEMENT
AMONG
FIRST BANKS, INC., AS DEPOSITOR
STATE STREET BANK AND TRUST COMPANY, AS PROPERTY TRUSTEE
WILMINGTON TRUST COMPANY, AS DELAWARE TRUSTEE,
AND
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
DATED AS OF JANUARY --------, 1997
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TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINED TERMS . . . . . . . . . . . . . . . 1
Section 101. Definitions . . . . . . . . . . . . . . . . 1
ARTICLE II ESTABLISHMENT OF THE TRUST. . . . . . . . . 9
Section 201. Name. . . . . . . . . . . . . . . . . . . . 9
Section 202. Office of the Delaware Trustee; Principal
Place of Business . . . . . . . . . . . . . 10
Section 203. Initial Contribution of Trust Property;
Organizational Expenses . . . . . . . . . . 10
Section 204. Issuance of the Preferred Securities. . . . 10
Section 205. Issuance of the Common Securities;
Subscription and Purchase of
Debentures. . . . . . . . . . . . . . . . . 10
Section 206. Declaration of Trust. . . . . . . . . . . . 11
Section 207. Authorization to Enter into Certain
Transactions. . . . . . . . . . . . . . . . 11
Section 208. Assets of Trust . . . . . . . . . . . . . . 14
Section 209. Title to Trust Property . . . . . . . . . . 14
ARTICLE III PAYMENT ACCOUNT . . . . . . . . . . . . . . 14
Section 301. Payment Account . . . . . . . . . . . . . . 14
ARTICLE IV DISTRIBUTIONS; REDEMPTION . . . . . . . . . 15
Section 401. Distributions . . . . . . . . . . . . . . . 15
Section 402. Redemption. . . . . . . . . . . . . . . . . 16
Section 403. Subordination of Common Securities. . . . . 17
Section 404. Payment Procedures. . . . . . . . . . . . . 18
Section 405. Tax Returns and Reports . . . . . . . . . . 18
Section 406. Payment of Taxes, Duties, etc. of the
Trust . . . . . . . . . . . . . . . . . . . 18
Section 407. Payments Under Indenture. . . . . . . . . . 18
ARTICLE V TRUST SECURITIES CERTIFICATES . . . . . . . 19
Section 501. Initial Ownership . . . . . . . . . . . . . 19
Section 502. The Trust Securities Certificates . . . . . 19
Section 503. Execution and Delivery of Trust
Securities Certificates . . . . . . . . . . 19
Section 504. Registration of Transfer and Exchange of
Preferred Securities Certificates . . . . . 19
Section 505. Mutilated, Destroyed, Lost or Stolen
Trust Securities Certificates . . . . . . . 20
Section 506. Persons Deemed Securityholders. . . . . . . 21
Section 507. Access to List of Securityholders' Names
and Addresses . . . . . . . . . . . . . . . 21
Section 508. Maintenance of Office or Agency . . . . . . 21
Section 509. Appointment of Paying Agent . . . . . . . . 21
Section 510. Ownership of Common Securities by
Depositor . . . . . . . . . . . . . . . . . 22
Section 511. Preferred Securities Certificates . . . . . 22
Section 512. [Intentionally Omitted]
Section 513. [Intentionally Omitted]
Section 514. Rights of Securityholders . . . . . . . . . 23
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ARTICLE VI ACTS OF SECURITYHOLDERS; MEETINGS;
VOTING. . . . . . . . . . . . . . . . . . . 24
Section 601. Limitations on Voting Rights. . . . . . . . 24
Section 602. Notice of Meetings. . . . . . . . . . . . . 25
Section 603. Meetings of Preferred Securityholders . . . 25
Section 604. Voting Rights . . . . . . . . . . . . . . . 26
Section 605. Proxies, etc. . . . . . . . . . . . . . . . 26
Section 606. Securityholder Action by Written
Consent . . . . . . . . . . . . . . . . . . 26
Section 607. Record Date for Voting and Other
Purposes. . . . . . . . . . . . . . . . . . 26
Section 608. Acts of Securityholders . . . . . . . . . . 26
Section 609. Inspection of Records . . . . . . . . . . . 27
ARTICLE VII REPRESENTATIONS AND WARRANTIES. . . . . . . 27
Section 701. Representations and Warranties of the
Bank and the Property Trustee . . . . . . . 27
Section 702. Representations and Warranties of the
Delaware Bank and the Delaware Trustee. . . 28
Section 703. Representations and Warranties of
Depositor . . . . . . . . . . . . . . . . . 29
ARTICLE VIII TRUSTEES. . . . . . . . . . . . . . . . . . 30
Section 801. Certain Duties and Responsibilities . . . . 30
Section 802. Certain Notices . . . . . . . . . . . . . . 31
Section 803. Certain Rights of Property Trustee. . . . . 31
Section 804. Not Responsible for Recitals or Issuance
of Securities . . . . . . . . . . . . . . . 33
Section 805. May Hold Securities . . . . . . . . . . . . 33
Section 806. Compensation; Indemnity; Fees . . . . . . . 33
Section 807. Corporate Property Trustee Required;
Eligibility of Trustees . . . . . . . . . . 34
Section 808. Conflicting Interests . . . . . . . . . . . 35
Section 809. Co-Trustees and Separate Trustee. . . . . . 35
Section 810. Resignation and Removal; Appointment of
Successor . . . . . . . . . . . . . . . . . 36
Section 811. Acceptance of Appointment by Successor. . . 37
Section 812. Merger, Conversion, Consolidation or
Succession to Business. . . . . . . . . . . 38
Section 813. Preferential Collection of Claims Against
Depositor or Trust. . . . . . . . . . . . . 38
Section 814. Reports by Property Trustee . . . . . . . . 38
Section 815. Reports to the Property Trustee . . . . . . 38
Section 816. Evidence of Compliance with Conditions
Precedent . . . . . . . . . . . . . . . . . 39
Section 817. Number of Trustees. . . . . . . . . . . . . 39
Section 818. Delegation of Power . . . . . . . . . . . . 39
Section 819. Voting. . . . . . . . . . . . . . . . . . . 39
ARTICLE IX TERMINATION, LIQUIDATION AND MERGER . . . . 40
Section 901. Termination Upon Expiration Date. . . . . . 40
Section 902. Early Termination . . . . . . . . . . . . . 40
Section 903. Termination . . . . . . . . . . . . . . . . 40
Section 904. Liquidation . . . . . . . . . . . . . . . . 40
Section 905. Mergers, Consolidations, Amalgamations or
Replacements of the Trust . . . . . . . . . 42
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ARTICLE X MISCELLANEOUS PROVISIONS. . . . . . . . . . 42
Section 1001. Limitation of Rights of Securityholders . . 42
Section 1002. Amendment . . . . . . . . . . . . . . . . . 43
Section 1003. Separability. . . . . . . . . . . . . . . . 44
Section 1004. Governing law . . . . . . . . . . . . . . . 44
Section 1005. Payments Due on Non-Business Day. . . . . . 44
Section 1006. Successors. . . . . . . . . . . . . . . . . 44
Section 1007. Headings. . . . . . . . . . . . . . . . . . 44
Section 1008. Reports, Notices and Demands. . . . . . . . 44
Section 1009. Agreement Not to Petition . . . . . . . . . 45
Section 1010. Trust Indenture Act; Conflict with Trust
Indenture Act . . . . . . . . . . . . . . . 45
Section 1011. Acceptance of Terms of Trust Agreement,
Guarantee and Indenture . . . . . . . . . . 46
Exhibit A Certificate of Trust
Exhibit B Form of Certificate Depository Agreement
Exhibit C Form of Common Securities Certificate
Exhibit D Form of Expense Agreement
Exhibit E Form of Preferred Securities Certificate
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CROSS-REFERENCE TABLE
Section of Section of Amended
Trust Indenture Act and Restated
of 1939, as amended Trust Agreement
- ------------------- ---------------
310(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . .807
310(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . .807
310(a)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . .807
310(a)(4). . . . . . . . . . . . . . . . . . . . . . . . 207(a)(ii)
310(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .808
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .813
311(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .813
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .507
312(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .507
312(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .507
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 814(a)
313(a)(4). . . . . . . . . . . . . . . . . . . . . . . . . . 814(b)
313(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 814(b)
313(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1008
313(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . 814(c)
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .815
314(b) . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
314(c)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . .816
314(c)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . .816
314(c)(3). . . . . . . . . . . . . . . . . . . . . . Not Applicable
314(d) . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
314(e) 101, 816
315(a) . . . . . . . . . . . . . . . . . . . . . . . 801(a), 803(a)
315(b) . . . . . . . . . . . . . . . . . . . . . . . . . .802, 1008
315(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . 801(a)
315(d) . . . . . . . . . . . . . . . . . . . . . . . . . . 801, 803
316(a)(2). . . . . . . . . . . . . . . . . . . . . . Not Applicable
316(b) . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
316(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .607
317(a)(1). . . . . . . . . . . . . . . . . . . . . . Not Applicable
317(a)(2). . . . . . . . . . . . . . . . . . . . . . Not Applicable
317(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .509
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1010
<FN>
Note: This Cross-Reference Table does not constitute part of
this Agreement and shall not affect any interpretation
of any of its terms or provisions.
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AMENDED AND RESTATED TRUST AGREEMENT
AMENDED AND RESTATED TRUST AGREEMENT, dated as of January
- ----, 1997, among (i) FIRST BANKS, INC., a Missouri corporation
(including any successors or assigns, the "Depositor"),
(ii) STATE STREET BANK AND TRUST COMPANY, a banking corporation duly
organized and existing under the laws of the State of Massachusetts, as
property trustee (the "Property Trustee" and, in its separate corporate
capacity and not in its capacity as Property Trustee, the "Bank"),
(iii) WILMINGTON TRUST COMPANY, a Delaware banking corporation duly
organized and existing under the laws of the State of Delaware, as
Delaware trustee (the "Delaware Trustee," and, in its separate
corporate capacity and not in its capacity as Delaware Trustee, the
"Delaware Bank") (iv) JAMES F. DIERBERG, an individual, ALLEN H.
BLAKE, an individual, and LAURENCE J. BROST, an individual, each of
whose address is c/o First Banks, Inc., 11901 Olive Boulevard, St. Louis,
Missouri 63141 (each an "Administrative Trustee" and collectively the
"Administrative Trustees") (the Property Trustee, the Delaware Trustee
and the Administrative Trustees referred to collectively as the
"Trustees"), and (v) the several Holders (as hereinafter defined).
RECITALS
WHEREAS, the Depositor, the Delaware Trustee, and James F.
Dierberg, Allen H. Blake and Laurence J. Brost, each as an
Administrative Trustee, have heretofore duly declared and
established a business trust pursuant to the Delaware Business
Trust Act by the entering into of that certain Trust Agreement,
dated as of December 12, 1996 (the "Original Trust Agreement"), and
by the execution and filing by the Delaware Trustee, the Depositor
and the Administrative Trustees with the Secretary of State of the
State of Delaware of the Certificate of Trust, filed on December
13, 1996, the form of which is attached as Exhibit A; and
WHEREAS, the Depositor, the Delaware Trustee, the Property
Trustee and the Administrative Trustees desire to amend and restate
the Original Trust Agreement in its entirety as set forth herein to
provide for, among other things, (i) the issuance of the Common
Securities (as defined herein) by the Trust (as defined herein) to
the Depositor; (ii) the issuance and sale of the Preferred
Securities (as defined herein) by the Trust pursuant to the
Underwriting Agreement (as defined herein); (iii) the acquisition
by the Trust from the Depositor of all of the right, title and
interest in the Debentures (as defined herein); and (iv) the
appointment of the Trustees;
NOW THEREFORE, in consideration of the agreements and
obligations set forth herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, each party, for the benefit of the other parties and
for the benefit of the Securityholders (as defined herein), hereby
amends and restates the Original Trust Agreement in its entirety
and agrees as follows:
ARTICLE I
DEFINED TERMS
SECTION 101. DEFINITIONS.
For all purposes of this Trust Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article I have the meanings
assigned to them in this Article I and include the plural as well
as the singular;
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(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 Trust Agreement; and
(d) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Trust Agreement as a whole
and not to any particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 608.
"Additional Amount" means, with respect to Trust Securities of
a given Liquidation Amount and/or a given period, the amount of
additional interest accrued on interest in arrears and paid by the
Depositor on a Like Amount of Debentures for such period.
"Additional Interest" has the meaning specified in Section 1.1
of the Indenture.
"Administrative Trustee" means each of James F. Dierberg,
Allen H. Blake and Laurence J. Brost, solely in his capacity as
Administrative Trustee of the Trust formed and continued hereunder
and not in his individual capacity, or such Administrative
Trustee's successor in interest in such capacity, or any successor
trustee appointed as herein provided.
"Affiliate" means, with respect to a specified Person, (a) any
Person directly or indirectly owning, controlling or holding with
power to vote 10% or more of the outstanding voting securities or
other ownership interests of the specified Person, any Person 10%
or more of whose outstanding voting securities or other ownership
interests are directly or indirectly owned, controlled or held with
power to vote by the specified Person; (c) any Person directly or
indirectly controlling, controlled by, or under common control with
the specified Person; (d) a partnership in which the specified
Person is a general partner; (e) any officer or director of the
specified Person; and (f) if the specified Person is an individual,
any entity of which the specified Person is an officer, director or
general partner.
"Bank" has the meaning specified in the Preamble to this Trust
Agreement.
"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
liquidation or reorganization of or in respect of such Person under
the United States Bankruptcy Code of 1978, as amended, or any other
similar applicable federal or state law, and the continuance of any
such decree or order unvacated and unstayed for a period of
90 days; or the commencement of an involuntary case under the
United States Bankruptcy Code of 1978, as amended, in respect of
such Person, which shall continue undismissed for a period of
90 days or entry of an order for relief in such case; or the entry
of a decree or order of a court having jurisdiction in the premises
for the appointment on the ground of insolvency or bankruptcy of a
receiver, custodian, liquidator, trustee or assignee in bankruptcy
or insolvency of such Person or of its property, or for the winding
up or liquidation of its affairs, and such decree or order shall
have remained in force unvacated and unstayed for a period of
90 days; or
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(b) the institution by such Person of proceedings to be
adjudicated a voluntary bankrupt, or the consent by such Person to
the filing of a bankruptcy proceeding against it, or the filing by
such Person of a petition or answer or consent seeking liquidation
or reorganization under the United States Bankruptcy Code of 1978,
as amended, or other similar applicable Federal or State law, or
the consent by such Person to the filing of any such petition or to
the appointment on the ground of insolvency or bankruptcy of a
receiver or custodian or liquidator or trustee or assignee in
bankruptcy or insolvency of such Person or of its property, or
shall make a general assignment for the benefit of creditors.
"Bankruptcy Laws" has the meaning specified in Section 1009.
"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 appropriate Trustee.
"Business Day" means a day other than a Saturday or Sunday, a
day on which banking institutions in The City of New York are
authorized or required by law, executive order or regulation to
remain closed, or a day on which the Property Trustee's Corporate
Trust Office or the Corporate Trust Office of the Debenture Trustee
is closed for business.
"Certificate of Trust" means the certificate of trust filed
with the Secretary of State of the State of Delaware with respect
to the Trust, as amended or restated from time to time.
"Change in 1940 Act Law" shall have the meaning set forth in
the definition of "Investment Company Event."
"Closing Date" means the date of execution and delivery of
this Trust Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or,
if at any time after the execution of this instrument such
Commission
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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 Security" means an undivided beneficial interest in
the assets of the Trust, having a Liquidation Amount of $25 and
having the rights provided therefor in this Trust Agreement,
including the right to receive Distributions and a Liquidation
Distribution as provided herein.
"Common Securities Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached
as Exhibit C.
"Corporate Trust Office" means the office at which, at any
particular time, the corporate trust business of the Property
Trustee or the Debenture Trustee, as the case may be, shall be
principally administered, which office at the date hereof, in each
such case, is located at 2 International Place, 5th Floor, Boston,
Massachusetts 02110, Attention: Corporate Trust Trustee.
"Debenture Event of Default" means an "Event of Default" as
defined in Section 7.1 of the Indenture.
"Debenture Redemption Date" means, with respect to any
Debentures to be redeemed under the Indenture, the date fixed for
redemption under the Indenture.
"Debenture Tax Event" means a "Tax Event" as specified in
Section 1.1 of the Indenture.
"Debenture Trustee" means State Street Bank and Trust Company,
a banking corporation company organized under the laws of the State of
Massachusetts and any successor thereto, as trustee under the Indenture.
"Debentures" means the $---------- aggregate principal amount
of the Depositor's ----% Subordinated Debentures due 2027, issued
pursuant to the Indenture.
"Definitive Preferred Securities Certificates" means the
Preferred Securities Certificates issued in certificated, fully
registered form as provided in Section 513.
"Delaware Bank" has the meaning specified in the Preamble to
this Trust Agreement.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of
the Delaware Code, 12 Delaware Code Sections 3801 et seq. as it may
be amended from time to time.
"Delaware Trustee" means the commercial bank or trust company
identified as the "Delaware Trustee" in the Preamble to this Trust
Agreement solely in its capacity as Delaware Trustee of the Trust
formed and 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
Trust Agreement.
"Distribution Date" has the meaning specified in
Section 401(a).
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"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 401.
"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 or the Property Trustee 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 or the Property Trustee 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 Trust
Agreement (other than a covenant or warranty a default in the
performance of which or the breach of which is dealt with 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 preference of the
Outstanding Preferred 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 Act" means the Securities Exchange Act of 1934, as
amended.
"Expense Agreement" means the Agreement as to Expenses and
Liabilities between the Depositor and the Trust, substantially in
the form attached as Exhibit D, as amended from time to time.
"Expiration Date" has the meaning specified in Section 901.
"Extended Interest Payment Period" has the meaning specified
in Section 4.1 of the Indenture.
"Guarantee" means the Preferred Securities Guarantee Agreement
executed and delivered by the Depositor and Boatmen's Trust
Company, as trustee, contemporaneously with the execution and
delivery of this Trust Agreement, for the benefit of the holders of
the Preferred Securities, as amended from time to time.
"Indenture" means the Indenture, dated as of January ----,
1997, between the Depositor and the Debenture Trustee, as trustee,
as amended or supplemented from time to time.
"Investment Company Act," means the Investment Company Act of
1940, as amended, as in effect at the date of execution of this
instrument.
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"Investment Company Event" means the receipt by the Trust of
an Opinion of Counsel, rendered by a law firm having a recognized
national tax and securities law practice, to the effect that, as a
result of the occurrence of a change in law or regulation or a
change in interpretation or application of law or regulation by any
legislative body, court, governmental agency or regulatory
authority (a "Change in 1940 Act Law"), the Trust is or shall be
considered an "investment company" that is required to be
registered under the Investment Company Act, which Change in 1940
Act Law becomes effective on or after the date of original issuance
of the Preferred Securities under this Trust Agreement.
"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
the principal amount of Debentures to be contemporaneously redeemed
in accordance with the Indenture and the proceeds of which shall be
used to pay the Redemption Price of such Trust Securities; and
(b) with respect to a distribution of Debentures to Holders of
Trust Securities in connection with a termination or liquidation of
the Trust, Debentures having a principal amount equal to the
Liquidation Amount of the Trust Securities of the Holder to whom
such Debentures are distributed. Each Debenture distributed pursuant
to clause (6) above shall carry with it accumulated interest in an
amount equal to the accumulated and unpaid interest then due on
such Debentures.
"Liquidation Amount" means the stated amount of $25 per Trust
Security.
"Liquidation Date" means the date on which Debentures are to
be distributed to Holders of Trust Securities in connection with a
termination and liquidation of the Trust pursuant to
Section 904(a).
"Liquidation Distribution" has the meaning specified in
Section 904(d).
"Officers' Certificate" means a certificate signed by the
President or a Vice President and by the Treasurer or an Assistant
Treasurer or the Controller or an Assistant Controller or 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 816 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 Trust
Agreement 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.
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"Opinion of Counsel" means an opinion in writing of legal
counsel, who may be counsel for the Trust, the Property Trustee,
the Delaware Trustee or the Depositor, but not an employee of any
thereof, and who shall be reasonably acceptable to the Property
Trustee.
"Original Trust Agreement" has the meaning specified in the
Recitals to this Trust Agreement.
"Outstanding", when used with respect to Preferred Securities,
means, as of the date of determination, all Preferred Securities
theretofore executed and delivered under this Trust Agreement,
except:
(a) Preferred securities theretofore canceled by the Property
Trustee or delivered to the Property Trustee for cancellation;
(b) Preferred 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 Holders of such
Preferred Securities; provided that, if such Preferred Securities
are to be redeemed, notice of such redemption has been duly given
pursuant to this Trust Agreement; and
(c) Preferred Securities which have been paid or in exchange
for or in lieu of which other Preferred Securities have been
executed and delivered pursuant to Sections 504, 505, 511 and 513;
provided, however, that in determining whether the Holders of the
requisite Liquidation Amount of the Outstanding Preferred
Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Preferred
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 Preferred
Securities that such Trustee knows to be so owned shall be so
disregarded; and (b) the foregoing shall not apply at any time when
all of the outstanding Preferred Securities are owned by the
Depositor, one or more of the Trustees and/or any such Affiliate.
Preferred 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 the Depositor or any Affiliate of the Depositor.
"Paying Agent" means any paying agent or co-paying agent
appointed pursuant to Section 509 and shall initially be the Bank.
"Payment Account" means a segregated non-interest-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 Debentures shall be
held and from which the Property Trustee shall make payments to the
Securityholders in accordance with Sections 401 and 402.
"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.
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"Preferred Security" means an undivided beneficial interest in
the assets of the Trust, having a Liquidation Amount of $25 and
having the rights provided therefor in this Trust Agreement,
including the right to receive Distributions and a Liquidation
Distribution as provided herein.
"Preferred Securities Certificate", means a certificate
evidencing ownership of Preferred Securities, substantially in the
form attached as Exhibit E.
"Property Trustee" means the commercial bank or trust company
identified as the "Property Trustee," in the Preamble to this Trust
Agreement solely in its capacity as Property Trustee of the Trust
heretofore formed and 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.
"Redemption Date" means, with respect to any Trust Security to
be redeemed, the date fixed for such redemption by or pursuant to
this Trust Agreement; provided that each Debenture Redemption Date
and the stated maturity of the Debentures 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 accumulated and
unpaid Distributions to the Redemption Date, paid by the Depositor upon
the concurrent redemption of a Like Amount of Debentures, allocated on
a pro rata basis (based on Liquidation Amounts) among the Trust
Securities.
"Relevant Trustee" shall have the meaning specified in Section
810.
"Securities Register" and "Securities Registrar" have the
respective meanings specified in Section 504.
"Securityholder" or "Holder" means a Person in whose name a
Trust Security or Securities is registered in the Securities
Register; any such Person is a beneficial owner within the meaning
of the Delaware Business Trust Act.
"Trust" means the Delaware business trust created and
continued hereby and identified on the cover page to this Trust
Agreement.
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"Trust Agreement" means this Amended and Restated Trust
Agreement, 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 Trust
Agreement and any such modification, amendment or supplement, the
provisions of the Trust Indenture Act that are deemed to be a part
of and govern this Trust Agreement and any such modification,
amendment or supplement, respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended, as in force at the date as of which this instrument was
executed; provided, however, that in the event the Trust Indenture
Act of 1939, as amended, is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment,
the Trust Indenture Act of 1939 as so amended.
"Trust Property" means (a) the Debentures; (b) the rights of
the Property Trustee under the Guarantee; (c) any cash on deposit
in, or owing to, the Payment Account; and (d) all proceeds and
rights in respect of the foregoing and any other property and
assets for the time being held or deemed to be held by the Property
Trustee pursuant to the trusts of this Trust Agreement.
"Trust Security" means any one of the Common Securities or the
Preferred Securities.
"Trust Securities Certificate" means any one of the Common
Securities Certificates or the Preferred Securities Certificates.
"Trustees" means, collectively, the Property Trustee, the
Delaware Trustee and the Administrative Trustees.
"Underwriting Agreement" means the Underwriting Agreement,
dated as of January ---, 1997, among the Trust, the Depositor and
the Underwriters named therein.
ARTICLE II
ESTABLISHMENT OF THE TRUST
SECTION 201. NAME.
The Trust created and continued hereby shall be known as
"First Preferred Capital Trust," as such name may be modified from
time to time by the Administrative Trustees following written
notice to the Holders of Trust Securities and the other Trustees,
in which name the Trustees may engage in the transactions
contemplated hereby, make and execute contracts and other
instruments on behalf of the Trust and sue and be sued.
SECTION 202. OFFICE OF THE DELAWARE TRUSTEE; PRINCIPAL PLACE
OF BUSINESS.
The address of the Delaware Trustee in the State of Delaware
is c/o Wilmington Trust Company, Rodney Square North, 1100 North
Market Street, Wilmington, Delaware 19890-0001, 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 c/o First Banks, Inc., 135 North Meramec
Avenue, St. Louis, Missouri 63105.
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SECTION 203. INITIAL CONTRIBUTION OF TRUST PROPERTY;
ORGANIZATIONAL EXPENSES.
The Trustees acknowledge receipt in trust from the Depositor
in connection with the Original Trust Agreement of the sum of $10,
which constituted the initial Trust Property. The Depositor shall
pay organizational 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 204. ISSUANCE OF THE PREFERRED SECURITIES.
On January ---, 1997, the Depositor and an Administrative
Trustee, on behalf of the Trust and pursuant to the Original Trust
Agreement, executed and delivered the Underwriting Agreement.
Contemporaneously with the execution and delivery of this Trust
Agreement, an Administrative Trustee, on behalf of the Trust, shall
execute in accordance with Section 502 and deliver in accordance
with the Underwriting Agreement, Preferred Securities Certificates,
registered in the name of the Persons entitled thereto,
in an aggregate amount of --------------- Preferred
Securities having an aggregate Liquidation Amount of $----------
against receipt of the aggregate purchase price of such Preferred
Securities of $----------, which amount such Administrative Trustee
shall promptly deliver to the Property Trustee. If the
underwriters exercise their Option and there is an Option Closing
Date (as such terms are defined in the Underwriting Agreement),
then an Administrative Trustee, on behalf of the Trust, shall
execute in accordance with Section 502 and deliver in accordance
with the Underwriting Agreement, Preferred Securities Certificates,
registered in the name of the Persons entitled thereto,
in an aggregate amount of up to ----------- Preferred
Securities having an aggregate Liquidation Amount of up to
$---------- against receipt of the aggregate purchase price of such
Preferred Securities of $-----------, which amount such
Administrative Trustee shall promptly deliver to the Property
Trustee.
SECTION 205. ISSUANCE OF THE COMMON SECURITIES; SUBSCRIPTION
AND PURCHASE OF DEBENTURES.
(a) Contemporaneously with the execution and delivery of this
Trust Agreement, an Administrative Trustee, on behalf of the Trust,
shall execute in accordance with Section 502 and deliver to the
Depositor, Common Securities Certificates, registered in the name
of the Depositor, in an aggregate amount of Common Securities
having an aggregate Liquidation Amount of $---------- against
payment by the Depositor of such amount. Contemporaneously
therewith, an Administrative Trustee, on behalf of the Trust, shall
subscribe to and purchase from the Depositor Debentures, registered
in the name of the Property Trustee on behalf of the Trust and
having an aggregate principal amount equal to $----------, and, in
satisfaction of the purchase price for such Debentures, the
Property Trustee, on behalf of the Trust, shall deliver to the
Depositor the sum of $----------.
(b) If the underwriters exercise the Option and there is an
Option Closing Date, then an Administrative Trustee, on behalf of
the Trust, shall execute in accordance with Section 502 and deliver
to the Depositor, Common Securities Certificates, registered in the
name of the Depositor, in an aggregate amount of Common Securities
having an aggregate Liquidation Amount of up to $---------- against
payment by the Depositor of such amount. Contemporaneously
therewith, an Administrative Trustee, on behalf of the Trust, shall
subscribe to and purchase from the Depositor, Debentures,
registered in the name of the Trust and having an aggregate
principal amount of up to $----------, and, in satisfaction of the
purchase price of such Debentures, the Property Trustee, on behalf
of the Trust, shall deliver to the Depositor the amount received
from one of the Administrative Trustees pursuant to
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the last sentence of Section 204 (being the sum of the amounts delivered to
the Property Trustee pursuant to (i) the third sentence of Section
204; and (ii) the first sentence of this Section 205(b)).
SECTION 206. DECLARATION OF TRUST.
The exclusive purposes and functions of the Trust are (a) to
issue and sell Trust Securities and use the proceeds from such sale
to acquire the Debentures; and (b) to engage in those activities
necessary, convenient or incidental thereto. 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 shall hold the Trust Property in trust upon
and subject to the conditions set forth herein for the benefit of
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 of the Trust for the sole and limited purpose of
fulfilling the requirements of Section 3807 of the Delaware
Business Trust Act.
SECTION 207. AUTHORIZATION TO ENTER INTO CERTAIN
TRANSACTIONS.
(a) The Trustees shall conduct the affairs of the Trust in
accordance with the terms of this Trust Agreement. Subject to the
limitations set forth in paragraph (b) of this Section 207 and
Article VIII, and in accordance with the following provisions (i)
and (ii), the Administrative Trustees shall have the authority to
enter into all transactions and agreements determined by the
Administrative Trustees to be appropriate in exercising the
authority, express or implied, otherwise granted to the
Administrative Trustees under this Trust Agreement, and to perform
all acts in furtherance thereof, including without limitation, the
following:
(i) As among the Trustees, each Administrative
Trustee, acting singly or jointly, 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 Expense
Agreement and such other agreements or documents as may be necessary or
desirable in connection with the purposes and function of the Trust;
(C) assisting in the registration of the
Preferred Securities under the Securities Act of 1933, as amended,
and under state securities or blue sky laws, and the qualification
of this Trust Agreement as a trust indenture under the Trust
Indenture Act;
(D) assisting in the listing of the Preferred
Securities upon The Nasdaq Stock Market's National Market or such
securities exchange or exchanges as shall be determined by the
Depositor and the registration of the Preferred Securities under
the Exchange Act, and the preparation and filing of all periodic
and other reports and other documents pursuant to the foregoing;
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(E) the sending of notices (other than notices
of default) and other information regarding the Trust Securities
and the Debentures to the Securityholders in accordance with this
Trust Agreement;
(F) the appointment of a Paying Agent,
authenticating agent and Securities Registrar in accordance with
this Trust Agreement;
(G) to the extent provided in this Trust
Agreement, 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;
(H) to take all action that may be necessary
or appropriate for the preservation and the continuation of the
Trust's valid existence, rights, franchises and privileges as a
statutory business trust under the laws of the State of Delaware
and of each other jurisdiction in which such existence is necessary
to protect the limited liability of the Holders of the Preferred
Securities or to enable the Trust to effect the purposes for which
the Trust was created; and
(I) the taking of any action incidental to the
foregoing as the Administrative Trustees may from time to time
determine is necessary or advisable to give effect to the terms of
this Trust Agreement for the benefit of the Securityholders
(without consideration of the effect of any such action on any
particular Securityholder).
(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 Debentures;
(C) the collection of interest, principal and
any other payments made in respect of the Debentures in the Payment
Account;
(D) the distribution of amounts owed to the
Securityholders in respect of the Trust Securities in accordance
with the terms of this Trust Agreement;
(E) the exercise of all of the rights, powers
and privileges of a holder of the Debentures;
(F) the sending of notices of default and
other information regarding the Trust Securities and the Debentures
to the Securityholders in accordance with this Trust Agreement;
(G) the distribution of the Trust Property in
accordance with the terms of this Trust Agreement;
(H) to the extent provided in this Trust
Agreement, the winding up of the affairs of and liquidation of the
Trust;
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(I) after an Event of Default, 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 Trust Agreement 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);
(J) registering transfers of the Trust
Securities in accordance with this Trust Agreement; and
(K) except as otherwise provided in this
Section 207(a)(ii), the Property Trustee shall have none of the
duties, liabilities, powers or the authority of the Administrative
Trustees set forth in Section 207(a)(i).
(b) So long as this Trust Agreement remains in effect, the
Trust (or the Trustees acting on behalf of the Trust) shall not
undertake any business, activities or transaction except as
expressly provided herein or contemplated hereby. In particular,
the Trustees shall not (i) acquire any investments or engage in any
activities not authorized by this Trust Agreement; (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) take any action that would cause the Trust to fail or cease
to qualify as a "grantor trust" for United States federal income
tax purposes; (iv) incur any indebtedness for borrowed money or
issue any other debt; or (v) take or consent to any action that
would result in the placement of a Lien on any of the Trust
Property. The 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.
(c) In connection with the issue and sale of the Preferred
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 Trust
Agreement are hereby ratified and confirmed in all respects):
(i) 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
Preferred Securities and the Debentures, 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 Preferred Securities and to do any and all such acts, other
than actions which must be taken by or on behalf of the Trust, and
advise the Trustees of actions they must take on behalf of the
Trust, and prepare for execution and filing 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 and
execution on behalf of the Trust of an application to The Nasdaq
Stock Market's National Market or a national stock exchange or
other organizations for listing upon notice of issuance of any
Preferred Securities and to file or cause an Administrative Trustee
to file thereafter with such exchange or organization such
notifications and documents as may be necessary from time to time;
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(iv) 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 Preferred Securities under Section 12(b) or 12(g) of the
Exchange Act, including any amendments thereto;
(v) the negotiation of the terms of, and the execution
and delivery of, the Underwriting Agreement providing for the sale
of the Preferred Securities; and
(vi) the taking of any other actions necessary or
desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the
Administrative Trustees are authorized and directed to conduct the
affairs of the Trust and to operate the Trust so that the Trust
shall not be deemed to be an "investment company" required to be
registered under the Investment Company Act, shall be classified as
a "grantor trust" and not as an association taxable as a
corporation for United States federal income tax purposes and so
that the Debentures shall be treated as indebtedness of the
Depositor for United States federal income tax purposes. In this
connection, subject to Section 1002, the Depositor and the
Administrative Trustees are authorized to take any action, not
inconsistent with applicable law or this Trust Agreement, that each
of the Depositor and the Administrative Trustees determines in
their discretion to be necessary or desirable for such purposes.
SECTION 208. ASSETS OF TRUST.
The assets of the Trust shall consist of the Trust Property.
SECTION 209. 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
Securityholders in accordance with this Trust Agreement.
ARTICLE III
PAYMENT ACCOUNT
SECTION 301. 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 and withdrawals from the Payment Account
in accordance with this Trust Agreement. All monies 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.
(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 Debentures. Amounts held in the Payment Account shall not be
invested by the Property Trustee pending distribution thereof.
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ARTICLE IV
DISTRIBUTIONS; REDEMPTION
SECTION 401. DISTRIBUTIONS.
(a) Distributions on the Trust Securities shall be
cumulative, and shall accumulate whether or not there are funds of
the Trust available for the payment of Distributions.
Distributions shall accumulate from ----------, 1997, and, except
during any Extended Interest Payment Period with respect to the
Debentures, shall be payable quarterly in arrears on March 31,
June 30, September 30 and December 31 of each year, commencing on
March 31, 1997. If any date on which a Distribution is otherwise
payable on the Trust Securities 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) except that, if such Business
Day is in the next succeeding calendar year, payment of such
Distribution shall be made on the immediately preceding Business
Day, 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 401(a), a "Distribution Date").
(b) The Trust Securities represent undivided beneficial
interests in the Trust Property, and, as a practical matter, the
Distributions on the Trust Securities shall be payable at a rate of
- ----% per annum of the Liquidation Amount of the Trust Securities.
The amount of Distributions payable for any full period shall be
computed on the basis of a 360-day year of twelve 30-day months.
The amount of Distributions for any partial period shall be
computed on the basis of the number of days elapsed in a 360-day
year of twelve 30 day months. During any Extended Interest Payment
Period with respect to the Debentures, Distributions on the
Preferred Securities shall be deferred for a period equal to the
Extended Interest Payment Period. The amount of Distributions
payable for any period shall include the Additional Amounts, if
any.
(c) Distributions on the Trust Securities shall be made by
the Property Trustee solely 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 immediately available in the Payment
Account for the payment of such Distributions.
(d) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders thereof as they
appear on the Securities Register for the Trust Securities on the
relevant record date, which shall be 15th day of the month in which
the Distribution is payable.
SECTION 402. REDEMPTION.
(a) On each Debenture Redemption Date and on the stated
maturity of the Debentures, the Trust shall be required to redeem
a Like Amount of Trust Securities at the Redemption Price.
(b) 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 Securities Register. The
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Property Trustee shall have no responsibility for the accuracy of any CUSIP
number contained in such notice. All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust Securities
are to be redeemed, the identification and the aggregate
Liquidation Amount of the particular Trust Securities to be
redeemed; and
(v) that, on the Redemption Date, the Redemption Price
shall become due and payable upon each such Trust Security to be
redeemed and that Distributions thereon shall cease to accumulate
on and after said date.
(c) The Trust Securities redeemed on each Redemption Date
shall be redeemed at the Redemption Price with the proceeds from
the contemporaneous redemption of Debentures. Redemptions of the
Trust Securities shall be made and the Redemption Price shall be
payable on each Redemption Date only to the extent that the Trust
has immediately available 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 Preferred Securities, then, by 12:00 noon, New York
City time, on the Redemption Date, subject to Section 402(c), the
Property Trustee shall deposit with the Paying Agent funds
sufficient to pay the applicable Redemption Price and shall give
the Paying Agent irrevocable instructions and authority to pay the
Redemption Price to the Holders thereof upon surrender of their
Preferred 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 Register for
the Trust Securities 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 shall cease, except the right of such
Securityholders to receive the Redemption Price and any
Distribution payable on or prior to the Redemption Date, but
without interest, and such Securities shall cease to be
Outstanding. In the event that any date on which any Redemption
Price is payable is not a Business Day, then payment of the
Redemption Price payable on such date 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), except that, if such
Business Day falls in the next calendar year, such payment shall be
made on the immediately preceding Business Day, in each case, with
the same force and effect as if made on such date. In the event
that payment of the 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 shall
continue to accumulate, at the then applicable rate, from the
Redemption Date originally established by the Trust for such Trust
Securities to the date such Redemption
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Price is actually paid, in which case the actual payment date shall be the
date fixed for redemption for purposes of calculating the Redemption Price.
(e) Payment of the Redemption Price on the Trust Securities
shall be made to the record holders thereof as they appear on the
Securities Register for the Trust Securities on the relevant record
date, which shall be the date 15 days prior to the relevant Redemption
Date.
(f) Subject to Section 403(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 Common Securities and the Preferred
Securities. The particular Preferred Securities to be redeemed
shall be selected not more than 60 days prior to the Redemption
Date by the Property Trustee from the outstanding Preferred
Securities not previously called for redemption, by such method
(including, without limitation, by lot) as the Property Trustee
shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to $25 or an integral
multiple of $25 in excess thereof) of the Liquidation Amount of
Preferred Securities of a denomination larger than $25. The
Property Trustee shall promptly notify the Securities Registrar in
writing of the Preferred Securities selected for redemption and, in
the case of any Preferred Securities selected for partial
redemption, the Liquidation Amount thereof to be redeemed. For all
purposes of this Trust Agreement, unless the context otherwise
requires, all provisions relating to the redemption of Preferred
Securities shall relate, in the case of any Preferred Securities
redeemed or to be redeemed only in part, to the portion of the
Liquidation Amount of Preferred Securities which has been or is to
be redeemed.
SECTION 403. SUBORDINATION OF COMMON SECURITIES.
(a) Payment of Distributions (including Additional Amounts,
if applicable) on, and the Redemption Price of, the Trust
Securities, as applicable, shall be made, subject to
Section 402(f), pro rata among the Common Securities and the
Preferred Securities based on the Liquidation Amount of the Trust
Securities; provided, however, that if on any Distribution Date or
Redemption Date any Event of Default resulting from a Debenture
Event of Default shall have occurred and be continuing, no payment
of any Distribution (including Additional Amounts, if applicable)
on, or Redemption Price of, any Common Security, and no other
payment on account of the redemption, liquidation or other
acquisition of Common Securities, shall be made unless payment in
full in cash of all accumulated and unpaid Distributions (including
Additional Amounts, if applicable) on all Outstanding Preferred
Securities for all Distribution periods terminating on or prior
thereto, or in the case of payment of the Redemption Price the full
amount of such Redemption Price on all Outstanding Preferred
Securities then called for redemption, 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 Amounts, if applicable) on,
or the Redemption Price of, Preferred Securities then due and
payable.
(b) In the case of the occurrence of any Event of Default
resulting from a Debenture Event of Default, the Holder of Common
Securities shall be deemed to have waived any right to act with
respect to any such Event of Default under this Trust Agreement
until the effect of all such Events of Default with respect to the
Preferred Securities shall have been cured, waived or otherwise
eliminated. Until any such Event of Default under this Trust
Agreement with respect to the Preferred Securities shall have been
so cured, waived or otherwise eliminated, the Property Trustee
shall act solely on behalf of
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the Holders of the Preferred Securities and not the Holder of the Common
Securities, and only the Holders of the Preferred Securities shall have the
right to direct the Property Trustee to act on their behalf.
SECTION 404. PAYMENT PROCEDURES.
Payments of Distributions (including Additional Amounts, if
applicable) in respect of the Preferred Securities shall be made by
check mailed to the address of the Person entitled thereto as such
address shall appear on the Securities Register. 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 405. 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 Form 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 the appropriate
Internal Revenue Service form required to be furnished to such
Securityholder or the information required to be provided on such
form. The Administrative Trustees shall provide the Depositor with
a copy of all such returns and reports promptly after such filing
or furnishing. The Property Trustee shall comply with United
States federal withholding and backup withholding tax laws and
information reporting requirements with respect to any payments to
Securityholders under the Trust Securities.
SECTION 406. PAYMENT OF TAXES, DUTIES, ETC. OF THE TRUST.
Upon receipt under the Debentures of Additional Interest (as
defined in Section 1.1 of the Indenture), the Property Trustee, at
the direction of an Administrative Trustee or the Depositor, shall
promptly pay any taxes, duties or governmental charges of
whatsoever nature (other than withholding taxes) imposed on the
Trust by the United States or any other taxing authority.
SECTION 407. PAYMENTS UNDER INDENTURE.
Any amount payable hereunder to any Holder of Preferred
Securities shall be reduced by the amount of any corresponding
payment such Holder has directly received under the Indenture
pursuant to Section 514(b) or (c) hereof.
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ARTICLE V
TRUST SECURITIES CERTIFICATES
SECTION 501. INITIAL OWNERSHIP.
Upon the creation of the Trust and the contribution by the
Depositor pursuant to Section 203 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 502. THE TRUST SECURITIES CERTIFICATES.
The Preferred Securities Certificates shall be issued in
minimum denominations of $25 Liquidation Amount and integral
multiples of $25 in excess thereof, and the Common Securities
Certificates shall be issued in denominations of $25 Liquidation
Amount and integral multiples thereof. The Trust Securities
Certificates shall be executed on behalf of the Trust by manual
signature of at least one Administrative Trustee. Trust Securities
Certificates bearing the manual 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 Trust Agreement,
notwithstanding that such individuals or any of them shall have
ceased to be so authorized prior to the delivery of 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 504, 511 and 513.
SECTION 503. EXECUTION AND DELIVERY OF TRUST SECURITIES
CERTIFICATES.
On the Closing Date and on the date on which the Underwriter
exercises the option, as applicable (the "Option Closing Date"),
the Administrative Trustees shall cause Trust Securities
Certificates, in an aggregate Liquidation Amount as provided in
Sections 204 and 205, to be executed on behalf of the Trust by at
least one of the Administrative Trustees and delivered to or upon
the written order of the Depositor, signed by its Chief Executive
Officer, President, any Vice President, the Treasurer or any
Assistant Treasurer without further corporate action by the
Depositor, in authorized denominations.
SECTION 504. REGISTRATION OF TRANSFER AND EXCHANGE OF
PREFERRED SECURITIES CERTIFICATES.
(a) The Depositor shall keep or cause to be kept, at the
office or agency maintained pursuant to Section 508, a register or
registers for the purpose of registering Trust Securities
Certificates and transfers and exchanges of Preferred Securities
Certificates (herein referred to as the "Securities Register") in
which the registrar designated by the Depositor (the "Securities
Registrar"), subject to such reasonable regulations as it may
prescribe, shall provide for the registration of Preferred
Securities Certificates and Common Securities Certificates (subject
to Section 510 in the case of the Common Securities Certificates)
and registration of transfers and exchanges of Preferred Securities
Certificates as herein provided. The Property Trustee shall be the
initial Securities Registrar.
(b) Upon surrender for registration of transfer of any
Preferred Securities Certificate at the office or agency maintained
pursuant to Section 508, the Administrative Trustees or any one of
them shall execute and deliver, in the name of the designated
transferee or transferees, one or more new Preferred Securities
Certificates in authorized denominations of a like aggregate
Liquidation Amount dated the date
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of execution by such Administrative Trustee or Trustees. The Securities
Registrar shall not be required to register the transfer of any Preferred
Securities that have been called for redemption. At the option of
a Holder, Preferred Securities Certificates may be exchanged for
other Preferred Securities Certificates in authorized denominations
of the same class and of a like aggregate Liquidation Amount upon
surrender of the Preferred Securities Certificates to be exchanged
at the office or agency maintained pursuant to Section 508.
(c) Every Preferred Securities Certificate presented or
surrendered for registration of transfer or exchange shall be
accompanied by a written instrument of transfer in form
satisfactory to the Property Trustee and the Securities Registrar
duly executed by the Holder or his attorney duly authorized in
writing. Each Preferred Securities Certificate surrendered for
registration of transfer or exchange shall be canceled and
subsequently disposed of by the Property Trustee in accordance with
its customary practice. The Trust shall not be required to
(i) issue, register the transfer of, or exchange any Preferred
Securities during a period beginning at the opening of business
15 calendar days before the date of mailing of a notice of
redemption of any Preferred Securities called for redemption and
ending at the close of business on the day of such mailing; or
(ii) register the transfer of or exchange any Preferred Securities
so selected for redemption, in whole or in part, except the
unredeemed portion of any such Preferred Securities being redeemed
in part.
(d) No service charge shall be made for any registration of
transfer or exchange of Preferred Securities Certificates, but the
Securities Registrar may require payment of a sum sufficient to
cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Preferred Securities
Certificates.
SECTION 505. MUTILATED, DESTROYED, LOST OR STOLEN TRUST
SECURITIES CERTIFICATES.
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 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 505, 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 505 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 506. PERSONS DEEMED SECURITYHOLDERS.
The Trustees, the Paying Agent and the Securities Registrar
shall treat the Person in whose name any Trust Securities
Certificate shall be registered in the Securities Register as the
owner of such Trust Securities Certificate 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.
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SECTION 507. ACCESS TO LIST OF SECURITYHOLDERS' NAMES AND
ADDRESSES.
At any time when the Property Trustee is not also acting as
the Securities Registrar, the Administrative Trustees or the
Depositor shall furnish or cause to be furnished to the Property
Trustee (a) semi-annually on or before January 15 and July 15 in
each year, a list, in such form as the Property Trustee may
reasonably require, of the names and addresses of the
Securityholders as of the most recent record date; and (b) promptly
after receipt by any Administrative Trustee or the Depositor of a
request therefor from the Property Trustee in order to enable the
Property Trustee to discharge its obligations under this Trust
Agreement, in each case to the extent such information is in the
possession or control of the Administrative Trustees or the
Depositor and is not identical to a previously supplied list or has
not otherwise been received by the Property Trustee in its capacity
as Securities Registrar. The rights of Securityholders to
communicate with other Securityholders with respect to their rights
under this Trust Agreement or under the Trust Securities, and the
corresponding rights of the Trustee shall be as provided in the
Trust Indenture Act. Each Holder, by receiving and holding a Trust
Securities Certificate, 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 508. MAINTENANCE OF OFFICE OR AGENCY.
The Administrative Trustees shall maintain in The City of New
York, an office or offices or agency or agencies where Preferred
Securities Certificates 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 Certificates may be
served. The Administrative Trustees initially designate the
principal corporate trust office of the Property Trustee,
2 International Place, 5th Floor, Boston, Massachusetts 02110,
as the principal corporate trust office for such purposes. The
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.
SECTION 509. 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 the Paying Agent if such Trustees
determine in their sole discretion that the Paying Agent shall have
failed to perform its obligations under this Trust Agreement in any
material respect. The Paying Agent shall initially be the Property
Trustee, and any co-paying agent chosen by the Property Trustee,
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 Property Trustee 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 shall hold all sums, if any, held
by it for payment to the Securityholders in
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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 801, 803 and 806 shall apply to the Property Trustee also
in its role as Paying Agent, for so long as the Property Trustee
shall act as Paying Agent and, to the extent applicable, to any
other paying agent appointed hereunder. Any reference in this
Agreement to the Paying Agent shall include any co-paying agent
unless the context requires otherwise.
SECTION 510. OWNERSHIP OF COMMON SECURITIES BY DEPOSITOR.
On the Closing Date, the Depositor shall acquire and retain
beneficial and record ownership of the Common Securities. To the
fullest extent permitted by law, any attempted transfer of the
Common Securities (other than a transfer in connection with a
merger or consolidation of the Depositor into another corporation
pursuant to Section 12.1 of the Indenture) 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 511. PREFERRED SECURITIES CERTIFICATES
(a) Each owner shall receive a Preferred Securities Certificate
representing such owner's interest in such Preferred Securities. Upon
the issuance of Definitive Preferred Securities Certificates, the
Trustees shall recognize the record holders of the Definitive Preferred
Securities Certificates as Securityholders. The Definitive Preferred
Securities Certificates shall be printed, lithographed or engraved or
may be produced in any other manner as is reasonably acceptable to the
Administrative Trustees, as evidenced by the execution thereof by the
Administrative Trustees or any one of them.
(b) A Single Common Securities Certificate representing the
Common Securities shall be issued to the Depositor in the form of a
definitive Common Securities Certificate.
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SECTION 512. [Intentionally Omitted]
SECTION 513. [Intentionally Omitted]
SECTION 514. 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 209, and the Securityholders shall not have
any right or title therein other than the undivided beneficial
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
Trust Agreement. The Trust Securities shall have no preemptive or
similar rights. When issued and delivered to Holders of the
Preferred Securities against payment of the purchase price
therefor, the Preferred Securities shall be fully paid and
nonassessable interests in the Trust. The Holders of the Preferred
Securities, 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.
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(b) For so long as any Preferred 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 Debentures fail to declare the principal
of all of the Debentures to be immediately due and payable, the
Holders of at least 25% in Liquidation Amount of the Preferred
Securities then Outstanding shall have such right by a notice in
writing to the Depositor and the Debenture Trustee; and upon any
such declaration such principal amount of and the accrued interest
on all of the Debentures shall become immediately due and payable,
provided that the payment of principal and interest on such
Debentures shall remain subordinated to the extent provided in the
Indenture.
(c) For so long as any Preferred Securities remain
outstanding, if, upon a Debenture Event of Default arising from the
failure to pay interest or principal on the Debentures, the Holders
of any Preferred Securities then Outstanding shall, to the fullest
extent permitted by law, have the right to directly institute
proceedings for enforcement of payment to such Holders of principal
of or interest on the Debentures having a principal amount equal to
the Liquidation Amount of the Preferred Securities of such Holders.
ARTICLE VI
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
SECTION 601. LIMITATIONS ON VOTING RIGHTS.
(a) Except as provided in this Section 601, in Sections 514,
810 and 1002 and in the Indenture and as otherwise required by law,
no Holder of Preferred 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 Securityholders from time to time as partners or members of an
association.
(b) So long as any Debentures are held by the Property
Trustee, the Trustees 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
Debenture Trustee with respect to such Debentures; (ii) waive any
past default which is waivable under Article VII of the Indenture;
(iii) exercise any right to rescind or annul a declaration that the
principal of all the Debentures shall be due and payable; or
(iv) consent to any amendment, modification or termination of the
Indenture or the Debentures, where such consent shall be required,
without, in each case, obtaining the prior approval of the Holders
of at least a majority in Liquidation Amount of all Outstanding
Preferred Securities; provided, however, that where a consent under
the Indenture would require the consent of each Holder of
Outstanding Debentures affected thereby, no such consent shall be
given by the Property Trustee without the prior written consent of
each holder of Preferred Securities. The Trustees shall not revoke
any action previously authorized or approved by a vote of the
Holders of the Outstanding Preferred Securities, except by a
subsequent vote of the Holders of the Outstanding Preferred
Securities. The Property Trustee shall notify each Holder of the
Outstanding Preferred Securities of any notice of default received
from the Debenture Trustee with respect to the Debentures. In
addition to obtaining the foregoing approvals of the Holders of the
Preferred 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 shall continue to be classified as a grantor trust and
not as an association taxable as a corporation for United States
federal income tax purposes on account of such action.
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(c) If any proposed amendment to the Trust Agreement provides
for, or the Trustees otherwise propose to effect, (i) any action
that would adversely affect in any material respect the powers,
preferences or special rights of the Preferred Securities, whether
by way of amendment to the Trust Agreement or otherwise; or
(ii) the dissolution, winding-up or termination of the Trust, other
than pursuant to the terms of this Trust Agreement, then the
Holders of Outstanding Preferred Securities as a class shall be
entitled to vote on such amendment or proposal and such amendment
or proposal shall not be effective except with the approval of the
Holders of at least a majority in Liquidation Amount of the
Outstanding Preferred Securities. No amendment to this Trust
Agreement may be made if, as a result of such amendment, the Trust
would cease to be classified as a grantor trust or would be
classified as an association taxable as a corporation for United
States federal income tax purposes.
SECTION 602. NOTICE OF MEETINGS.
Notice of all meetings of the Preferred Securityholders,
stating the time, place and purpose of the meeting, shall be given
by the Property Trustee pursuant to Section 1008 to each Preferred
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 603. MEETINGS OF PREFERRED SECURITYHOLDERS.
(a) 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 in respect of which
Preferred Securityholders are entitled to vote upon the written
request of the Preferred Securityholders of 25% of the Outstanding
Preferred Securities (based upon their aggregate Liquidation
Amount) and the Administrative Trustees or the Property Trustee
may, at any time in their discretion, call a meeting of Preferred
Securityholders to vote on any matters as to which the Preferred
Securityholders are entitled to vote.
(b) Preferred Securityholders of record of 50% of the
Outstanding Preferred Securities (based upon their aggregate
Liquidation Amount), present in person or by proxy, shall
constitute a quorum at any meeting of Securityholders.
(c) If a quorum is present at a meeting, an affirmative vote
by the Preferred Securityholders of record present, in person or by
proxy, holding more than a majority of the Preferred Securities
(based upon their aggregate Liquidation Amount) held by the
Preferred Securityholders of record present, either in person or by
proxy, at such meeting shall constitute the action of the
Securityholders, unless this Trust Agreement requires a greater
number of affirmative votes.
SECTION 604. VOTING RIGHTS.
Securityholders shall be entitled to one vote for each $25 of
Liquidation Amount represented by their Trust Securities in respect
of any matter as to which such Securityholders are entitled to
vote.
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SECTION 605. 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.
When Trust Securities are held jointly by several persons, any one
of them may vote at any meeting in person or by proxy in respect of
such Trust 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 Trust
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 606. 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 Trust Securities (based upon their
aggregate 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 Trust Agreement) shall consent to the
action in writing (based upon their aggregate Liquidation Amount).
SECTION 607. 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 on the Trust
Securities in respect of which a record date is not otherwise
provided for in this Trust Agreement, 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 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 608. ACTS OF SECURITYHOLDERS.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Trust
Agreement to be given, made or taken by Securityholders may be embodied
in and evidenced by one or more instruments of substantially similar
tenor signed by such Securityholders 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
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 Trust Agreement and (subject to Section 801)
conclusive in favor of the Trustees, if made in the manner provided in
this Section 608.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a
witness of such execution or by a certificate of a notary public or
other
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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.
(c) The ownership of Preferred Securities shall be proved by
the Securities Register.
(d) 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.
(e) 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.
(f) A Securityholder may institute a legal proceeding
directly against the Depositor under the Guarantee to enforce its
rights under the Guarantee without first instituting a legal
proceeding against the Guarantee Trustee (as defined in the
Guarantee), the Trust or any Person.
SECTION 609. INSPECTION OF RECORDS.
Upon reasonable notice to the Administrative Trustees and the
Property Trustee, the records of the Trust shall be open to
inspection and copying by Securityholders and their authorized
representatives during normal business hours for any purpose
reasonably related to such Securityholder's interest as a
Securityholder.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
SECTION 701. REPRESENTATIONS AND WARRANTIES OF THE BANK AND
THE PROPERTY TRUSTEE.
The Bank and the Property Trustee, each severally on behalf of
and as to itself, as of the date hereof, and each Successor
Property Trustee at the time of the Successor Property Trustee's
acceptance of its appointment as Property Trustee hereunder (the
term "Bank" being used to refer to such Successor Property Trustee
in its separate corporate capacity) hereby represents and warrants
(as applicable) for the benefit of the Depositor and the
Securityholders that:
(a) the Bank is a banking corporation duly organized, validly
existing and in good standing under the laws of the State of
Massachusetts;
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(b) the Bank has full corporate power, authority and legal
right to execute, deliver and perform its obligations under this
Trust Agreement and has taken all necessary action to authorize the
execution, delivery and performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed
and delivered by the Property Trustee and constitutes the valid and
legally binding agreement of the Property Trustee enforceable
against it in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors, rights and to general equity principles;
(d) the execution, delivery and performance by the Property
Trustee of this Trust Agreement has been duly authorized by all
necessary corporate or other action on the part of the Property
Trustee and does not require any approval of stockholders of the
Bank and such execution, delivery and performance shall not
(i) violate the Bank's charter or by-laws; (ii) violate any
provision of, or constitute, with or without notice or lapse of
time, a default under, or result in the creation or imposition of,
any Lien on any properties included in the Trust Property pursuant
to the provisions of, any indenture, mortgage, credit agreement,
license or other agreement or instrument to which the Property
Trustee or the Bank is a party or by which it is bound; or
(iii) violate any law, governmental rule or regulation of the
United States or the State of Massachusetts, as the case may be,
governing the banking or trust powers of the Bank or the Property
Trustee (as appropriate in context) or any order, judgment or
decree applicable to the Property Trustee or the Bank;
(e) neither the authorization, execution or delivery by the
Property Trustee of this Trust Agreement nor the consummation of
any of the transactions by the Property Trustee contemplated herein
or therein requires the consent or approval of, the giving of
notice to, the registration with or the taking of any other action
with respect to any governmental authority or agency under any
existing federal law governing the banking or trust powers of the
Bank or the Property Trustee, as the case may be, under the laws of
the United States or the State of Massachusetts; and
(f) there are no proceedings pending or, to the best of the
Property Trustee's knowledge, threatened against or affecting the
Bank or the Property Trustee in any court or before any
governmental authority, agency or arbitration board or tribunal
which, individually or in the aggregate, would materially and
adversely affect the Trust or would question the right, power and
authority of the Property Trustee to enter into or perform its
obligations as one of the Trustees under this Trust Agreement.
SECTION 702. REPRESENTATIONS AND WARRANTIES OF THE DELAWARE
BANK AND THE DELAWARE TRUSTEE.
The Delaware Bank and the Delaware Trustee, each severally on
behalf of and as to itself, as of the date hereof, and each
Successor Delaware Trustee at the time of the Successor Delaware
Trustee's acceptance of appointment as Delaware Trustee hereunder
(the term "Delaware Bank" being used to refer to such Successor
Delaware Trustee in its separate corporate capacity), hereby
represents and warrants (as applicable) for the benefit of the
Depositor and the Securityholders that:
(a) the Delaware Bank is a Delaware banking corporation duly
organized, validly existing and in good standing under the laws of
the State of Delaware;
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(b) the Delaware Bank has full corporate power, authority and
legal right to execute, deliver and perform its obligations under
this Trust Agreement and has taken all necessary action to
authorize the execution, delivery and performance by it of this
Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed
and delivered by the Delaware Trustee and constitutes the valid and
legally binding agreement of the Delaware Trustee enforceable
against it in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors, rights and to general equity principles;
(d) the execution, delivery and performance by the Delaware
Trustee of this Trust Agreement has been duly authorized by all
necessary corporate or other action on the part of the Delaware
Trustee and does not require any approval of stockholders of the
Delaware Bank and such execution, delivery and performance shall
not (i) violate the Delaware Bank's charter or by-laws;
(ii) violate any provision of, or constitute, with or without
notice or lapse of time, a default under, or result in the creation
or imposition of, any Lien on any properties included in the Trust
Property pursuant to the provisions of, any indenture, mortgage,
credit agreement, license or other agreement or instrument to which
the Delaware Bank or the Delaware Trustee is a party or by which it
is bound; or (iii) violate any law, governmental rule or regulation
of the United States or the State of Delaware, as the case may be,
governing the banking or trust powers of the Delaware Bank or the
Delaware Trustee (as appropriate in context) or any order, judgment
or decree applicable to the Delaware Bank or the Delaware Trustee;
(e) neither the authorization, execution or delivery by the
Delaware Trustee of this Trust Agreement nor the consummation of
any of the transactions by the Delaware Trustee contemplated herein
or therein requires the consent or approval of, the giving of
notice to, the registration with or the taking of any other action
with respect to any governmental authority or agency under any
existing federal law governing the banking or trust powers of the
Delaware Bank or the Delaware Trustee, as the case may be, under
the laws of the United States or the State of Delaware; and
(f) there are no proceedings pending or, to the best of the
Delaware Trustee's knowledge, threatened against or affecting the
Delaware Bank or the Delaware Trustee in any court or before any
governmental authority, agency or arbitration board or tribunal
which, individually or in the aggregate, would materially and
adversely affect the Trust or would question the right, power and
authority of the Delaware Trustee to enter into or perform its
obligations as one of the Trustees under this Trust Agreement.
SECTION 703. REPRESENTATIONS AND WARRANTIES OF DEPOSITOR.
The Depositor hereby represents and warrants for the benefit
of the Securityholders that:
(a) the Trust Securities Certificates issued on the Closing
Date or the Option Closing Date, if applicable, on behalf of the
Trust have been duly authorized and, shall have been, duly and
validly executed, issued and delivered by the Administrative
Trustees pursuant to the terms and provisions of, and in accordance
with the requirements of, this Trust Agreement and the
Securityholders shall be, as of such date, entitled to the benefits
of this Trust Agreement; and
(b) there are no taxes, fees or other governmental charges
payable by the Trust (or the Trustees on behalf of the Trust) under
the laws of the State of Delaware or any political subdivision
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thereof in connection with the execution, delivery and performance
by the Bank, the Property Trustee or the Delaware Trustee, as the
case may be, of this Trust Agreement.
ARTICLE VIII
TRUSTEES
SECTION 801. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) The duties and responsibilities of the Trustees shall be
as provided by this Trust Agreement and, in the case of the
Property Trustee, by the Trust Indenture Act. Notwithstanding the
foregoing, no provision of this Trust Agreement 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 adequate indemnity against such risk or liability is
not reasonably assured to it. No Administrative Trustee nor the
Delaware Trustee shall be liable for its act or omissions hereunder
except as a result of its own gross negligence or willful
misconduct. The Property Trustee's liability shall be determined
under the Trust Indenture Act. Whether or not therein expressly so
provided, every provision of this Trust Agreement relating to the
conduct or affecting the liability of or affording protection to
the Trustees shall be subject to the provisions of this Section
801. To the extent that, at law or in equity, the Delaware Trustee
or an Administrative Trustee has duties (including fiduciary
duties) and liabilities relating thereto to the Trust or to the
Securityholders, the Delaware Trustee or 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
Trust Agreement. The provisions of this Trust Agreement, to the
extent that they restrict the duties and liabilities of the
Delaware Trustee or 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
Delaware Trustee and the Administrative Trustees, as the case may
be.
(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 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. With respect to
the relationship of each Securityholder and the Trustee, each
Securityholder, by its acceptance of a Trust Security, agrees that
it shall 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 801(b) does not limit the liability of the Trustees
expressly set forth elsewhere in this Trust Agreement or, in the
case of the Property Trustee, in the Trust Indenture Act.
(c) No provision of this Trust Agreement shall be construed
to relieve the Property Trustee from liability for its own
negligent action, its own negligent failure to act, or its own
willful misconduct, except that:
(i) 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;
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(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 Trust
Agreement;
(iii) the Property Trustee's sole duty with respect to
the custody, safe keeping and physical preservation of the
Debentures 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 protections
and limitations on liability afforded to the Property Trustee under
this Trust Agreement 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 other funds held by it except in
relation to the Payment Account maintained by the Property Trustee
pursuant to Section 301 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 Trust Agreement,
nor shall the Property Trustee be liable for the negligence,
default or misconduct of the Administrative Trustees or the
Depositor.
SECTION 802. CERTAIN NOTICES.
(a) Within 5 Business Days after the occurrence of any Event
of Default actually known to the Property Trustee, the Property
Trustee shall transmit, in the manner and to the extent provided in
Section 1008, 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. For
purposes of this Section 802 the term "Event of Default" means any
event that is, or after notice or lapse of time or both would
become, an Event of Default.
(b) The Administrative Trustees shall transmit, to the
Securityholders in the manner and to the extent provided in
Section 1008, notice of the Depositor's election to begin or
further extend an Extended Interest Payment Period on the
Debentures (unless such election shall have been revoked) within
the time specified for transmitting such notice to the holders of
the Debentures pursuant to the Indenture as originally executed.
SECTION 803. CERTAIN RIGHTS OF PROPERTY TRUSTEE.
Subject to the provisions of Section 801:
(a) the Property Trustee may rely and shall be protected in
acting or refraining from acting in good faith upon any resolution,
Opinion of Counsel, certificate, written representation of a Holder
or transferee, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, 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;
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(b) if (i) in performing its duties under this Trust
Agreement the Property Trustee is required to decide between
alternative courses of action; or (ii) in construing any of the
provisions of this Trust Agreement the Property Trustee finds the
same ambiguous or inconsistent with other provisions contained
herein; or (iii) the Property Trustee is unsure of the application
of any provision of this Trust Agreement, then, except as to any
matter as to which the Preferred Securityholders are entitled to
vote under the terms of this Trust Agreement, 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 10 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 2 Business Days), it may, but
shall be under no duty to, take or refrain from taking such action
not inconsistent with this Trust Agreement 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 willful misconduct;
(c) any direction or act of the Depositor or the
Administrative Trustees contemplated by this Trust Agreement shall
be sufficiently evidenced by an Officers' Certificate;
(d) whenever in the administration of this Trust Agreement,
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 Officer's Certificate
which, upon receipt of such request, shall be promptly delivered by
the Depositor or the Administrative Trustees;
(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, any filing under tax or
securities laws 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
choice (which counsel may be counsel to the Depositor or any of its
Affiliates) and the advice of such counsel shall be full and
complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in
reliance thereon and, in accordance with such advice, 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 Trust Agreement 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 Trust
Agreement at the request or direction of any of the Securityholders
pursuant to this Trust Agreement, unless such Securityholders shall
have offered to the Property Trustee reasonable security or
indemnity 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;
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(i) the Property Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or
by or through its agents or attorneys, provided that the Property
Trustee shall be responsible for its own negligence or recklessness
with respect to selection of any agent or attorney appointed by it
hereunder;
(j) whenever in the administration of this Trust Agreement
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 protected in acting in accordance with such instructions; and
(k) except as otherwise expressly provided by this Trust
Agreement, the Property Trustee shall not be under any obligation
to take any action that is discretionary under the provisions of
this Trust Agreement. No provision of this Trust Agreement 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 804. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES.
The Recitals contained herein and in the Trust Securities
Certificates shall be taken as the statements of the 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 Debentures.
SECTION 805. MAY HOLD SECURITIES.
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 808 and 813
and except as provided in the definition of the term "Outstanding"
in Article I, may otherwise deal with the Trust with the same
rights it would have if it were not a Trustee or such other agent.
SECTION 806. COMPENSATION; INDEMNITY; FEES.
The Depositor agrees:
(a) to pay to the Trustees from time to time reasonable
compensation 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 Trust Agreement (including
the reasonable compensation and the expenses and
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disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to such Trustee's negligence,
bad faith or willful misconduct (or, in the case of the Administrative
Trustees or the Delaware Trustee, any such expense, disbursement or
advance as may be attributable to its, his or her gross negligence,
bad faith or willful misconduct); and
(c) to indemnify each of the Trustees or any predecessor
Trustee for, and to hold the Trustees harmless against, any loss,
damage, claims, liability, penalty or expense incurred without
negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of this Trust
Agreement, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder, except any
such expense, disbursement or advance as may be attributable to
such Trustee's negligence, bad faith or willful misconduct (or,
in the case of the Administrative Trustees or the Delaware Trustee,
any such expense, disbursement or advance as may be attributable to
its, his or her gross negligence, bad faith or willful misconduct).
No Trustee may claim any Lien or charge on any Trust Property
as a result of any amount due pursuant to this Section 806.
SECTION 807. 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 eligible pursuant to the Trust Indenture Act to
act as such and has a combined capital and surplus of at least
$50,000,000. 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 807, 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 807, it shall resign immediately in the manner and with the
effect hereinafter specified in this Article VIII.
(b) There shall at all times be one or more Administrative
Trustees hereunder with respect to the Trust Securities. 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 with
respect to the Trust Securities. 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 808. 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 Trust Agreement.
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SECTION 809. CO-TRUSTEES AND SEPARATE TRUSTEE.
(a) Unless an Event of Default shall have occurred and be
continuing, at any time or times, for the purpose of meeting 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 shall have power to appoint, and
upon the written request of the Property Trustee, the Depositor
shall for such purpose join with the Property Trustee 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 809. 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 809 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.
(b) 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.
(c) 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:
(i) The Trust Securities shall be executed and
delivered 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.
(ii) 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 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.
(iii) 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 809, and, in case
a Debenture Event of Default has occurred and is continuing, the
Property Trustee shall have the 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
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removal. A successor to any co-trustee or separate trustee so resigned or
removed may be appointed in the manner provided in this Section 809.
(iv) 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.
(v) The Property Trustee shall not be liable by reason
of any act of a co-trustee or separate trustee.
(vi) 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 810. RESIGNATION AND REMOVAL; APPOINTMENT OF
SUCCESSOR.
(a) No resignation or removal of any Trustee (the "Relevant
Trustee") and no appointment of a successor Trustee pursuant to
this Article VIII shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the
applicable requirements of Section 811.
(b) Subject to the immediately preceding paragraph, the
Relevant Trustee may resign at any time with respect to the Trust
Securities by giving written notice thereof to the Securityholders.
If the instrument of acceptance by the successor Trustee required
by Section 811 shall not have been delivered to the Relevant
Trustee within 30 days after the giving of such notice of
resignation, the Relevant Trustee may petition, at the expense of
the Depositor, any court of competent jurisdiction for the
appointment of a successor Relevant Trustee with respect to the
Trust Securities.
(c) 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
Preferred Securities, delivered to the Relevant Trustee (in its
individual capacity and on behalf of the Trust). An Administrative
Trustee may be removed by the Common Securityholder at any time.
(d) 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 with respect to the Trust Securities and the Trust, and
the successor Trustee shall comply with the applicable requirements
of Section 811. 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 is continuing, the Preferred Securityholders, by Act of the
Securityholders of a majority in Liquidation Amount of the
Preferred Securities then Outstanding delivered to the retiring
Relevant Trustee, shall promptly appoint a successor Relevant
Trustee or Trustees with respect to the Trust Securities and the
Trust, and such successor Trustee shall comply with the applicable
requirements of Section 811. 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 an Administrative Trustee,
shall promptly appoint a successor Administrative Trustee or
Administrative Trustees with respect to the Trust Securities and
the Trust, and
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such successor Administrative Trustee or Administrative Trustees shall comply
with the applicable requirements of Section 811. If no successor Relevant
Trustee with respect to the Trust Securities shall have been so appointed by
the Common Securityholder or the Preferred Securityholders and accepted
appointment in the manner required by Section 811, any
Securityholder who has been a Securityholder of Trust Securities on
behalf of himself and all others similarly situated may petition a
court of competent jurisdiction for the appointment Trustee with
respect to the Trust Securities.
(e) 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 1008 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.
(f) Notwithstanding the foregoing or any other provision of
this Trust Agreement, 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, 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 set forth in
Section 807).
SECTION 811. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor
Relevant Trustee with respect to the Trust Securities and the
Trust, the retiring Relevant Trustee and each successor Relevant
Trustee with respect to the Trust Securities shall execute and
deliver an instrument hereto wherein each successor Relevant
Trustee shall accept such appointment and which 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 upon the
execution and delivery of such instrument 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 with respect to the Trust Securities and
the Trust; 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.
(b) Upon 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
immediately preceding paragraph, as the case may be.
(c) 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
VIII.
SECTION 812. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION
TO BUSINESS.
Any Person into which the Property Trustee, the Delaware
Trustee or any Administrative Trustee may be merged or converted or
with which it may be consolidated, or any Person resulting from any
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merger, conversion or consolidation to which such Relevant Trustee
shall be a party, or any corporation succeeding to all or
substantially all the corporate trust business of such Relevant
Trustee, shall be the successor of such Relevant Trustee hereunder,
provided such Person shall be otherwise qualified and eligible
under this Article VIII, without the execution or filing of any
paper or any further act on the part of any of the parties hereto.
SECTION 813. PREFERENTIAL COLLECTION OF CLAIMS AGAINST
DEPOSITOR OR TRUST.
If and when the Property Trustee or the Delaware Trustee shall
be or become a creditor of the Depositor or the Trust (or any other
obligor upon the Debentures or the Trust Securities), the Property
Trustee or the Delaware Trustee, as the case may be, shall be
subject to and shall take all actions necessary in order to comply
with the provisions of the Trust Indenture Act regarding the
collection of claims against the Depositor or Trust (or any such
other obligor).
SECTION 814. REPORTS BY PROPERTY TRUSTEE.
(a) Not later than July 15 of each year commencing with
July 15, 1997, the Property Trustee shall transmit to all
Securityholders in accordance with Section 1008, and to the
Depositor, a brief report dated as of such December 31 with respect
to:
(i) its eligibility under Section 807 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 Trust Agreement 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 Holders, be filed by the Property Trustee with The
Nasdaq Stock Market's National Market, and each national securities
exchange or other organization upon which the Trust Securities are
listed, and also with the Commission and the Depositor.
SECTION 815. REPORTS TO THE PROPERTY TRUSTEE.
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 816. EVIDENCE OF COMPLIANCE WITH CONDITIONS
PRECEDENT.
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 conditions precedent, if any,
provided for in this
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Trust Agreement 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 817. 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 817(a), or if the number of Trustees is increased pursuant
to Section 817(a), a vacancy shall occur. The vacancy shall be
filled with a Trustee appointed in accordance with Section 810.
(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 Trustees shall occur, until such vacancy is
filled by the appointment of an Administrative Trustee in
accordance with Section 810, 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 Trust Agreement.
SECTION 818. 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 207(a); and
(b) The Administrative Trustees 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 contrary to the provisions of the Trust, as set
forth herein.
SECTION 819. VOTING.
Except as otherwise provided in this Trust Agreement, the
consent or approval of the Administrative Trustees shall require
consent or approval by not less than a majority of the
Administrative Trustees, unless there are only two, in which case
both must consent.
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ARTICLE IX
TERMINATION, LIQUIDATION AND MERGER
SECTION 901. TERMINATION UPON EXPIRATION DATE.
Unless earlier dissolved, the Trust shall automatically
dissolve on March 31, 2051 (the "Expiration Date") subject to
distribution of the Trust Property in accordance with Section 904.
SECTION 902. 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;
(b) delivery of written direction to the Property Trustee by
the Depositor at any time (which direction is wholly optional and
within the discretion of the Depositor) to dissolve the Trust and
distribute the Debentures to Securityholders in exchange for the
Preferred Securities in accordance with Section 904;
(c) the redemption of all of the Preferred Securities in
connection with the redemption of all of the Debentures; and
(d) an order for dissolution of the Trust shall have been
entered by a court of competent jurisdiction.
SECTION 903. 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 distribution by
the Property Trustee to Securityholders upon the liquidation of the
Trust pursuant to Section 904, or upon the redemption of all of the
Trust Securities pursuant to Section 402, of all amounts required
to be distributed hereunder upon the final payment of the Trust
Securities; (b) the payment of any expenses owed by the Trust;
(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; and (d) the filing of a Certificate of
Cancellation by the Administrative Trustee under the Business Trust
Act.
SECTION 904. LIQUIDATION.
(a) If an Early Termination Event specified in clause (a),
(b), or (d) of Section 902 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
Debentures, subject to Section 904(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 60 days prior to
the Liquidation Date to each Holder of Trust Securities at such
Holder's address appearing in the Securities Register. All notices
of liquidation shall:
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(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date,
the Trust Securities shall no longer be deemed to be Outstanding
and any Trust Securities Certificates not surrendered for exchange
shall be deemed to represent a Like Amount of Debentures; and
(iii) provide such information with respect to the
mechanics by which Holders may exchange Trust Securities
Certificates for Debentures, or, if Section 904(d) applies, receive
a Liquidation Distribution, as the Administrative Trustees or the
Property Trustee shall deem appropriate.
(b) Except where Section 902(c) or 904(d) applies, in order
to effect the liquidation of the Trust and distribution of the
Debentures 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 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 Debentures in exchange for the
Outstanding Trust Securities Certificates.
(c) Except where Section 902(c) or 904(d) applies, after the
Liquidation Date, (i) the Trust Securities shall no longer be
deemed to be outstanding; (ii) certificates representing a Like Amount
of Debentures shall be issued to holders of Trust Securities
Certificates upon surrender of such certificates to the Administrative
Trustees or their agent for exchange; (iii) the Depositor shall use its
reasonable efforts to have the Debentures listed on The Nasdaq Stock
Market's National Market or on such other securities exchange or other
organization as the Preferred Securities are then listed or traded; (iv)
any Trust Securities Certificates not so surrendered for exchange shall
be deemed to represent a Like Amount of Debentures, accruing
interest at the rate provided for in the Debentures from the last
Distribution Date on which a Distribution was made on such Trust
Securities Certificates until such certificates are so surrendered
(and until such certificates are so surrendered, no payments of
interest or principal shall be made to holders of Trust Securities
Certificates with respect to such Debentures); and (v) all rights
of Securityholders holding Trust Securities shall cease, except the
right of such Securityholders to receive Debentures upon surrender
of Trust Securities Certificates.
(d) In the event that, notwithstanding the other provisions
of this Section 904, whether because of an order for dissolution
entered by a court of competent jurisdiction or otherwise,
distribution of the Debentures 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 shall 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 Liquidation Amount per
Trust Security 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 shall be paid on a pro rata basis (based upon
Liquidation Amounts). The holder of the Common Securities shall be
entitled to receive Liquidation Distributions upon any such
dissolution, winding-up or termination pro rata (determined as
aforesaid) with
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Holders of Preferred Securities, except that, if a Debenture Event of Default
has occurred and is continuing, the Preferred Securities shall have a priority
over the Common Securities.
SECTION 905. 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 905. At the request of the
Depositor, with the consent of the Administrative Trustees and
without the consent of the holders of the Preferred Securities, the
Property Trustee or the Delaware Trustee, the Trust may merge with
or into, consolidate, amalgamate, 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, that (i) such successor entity either (a) expressly
assumes all of the obligations of the Trust with respect to the
Preferred Securities; or (b) substitutes for the Preferred
Securities other securities having substantially the same terms as
the Preferred Securities (the "Successor Securities") so long as the
Successor Securities rank the same as the Preferred Securities rank
in priority with respect to distributions and payments upon
liquidation, redemption and otherwise; (ii) the Depositor expressly
appoints a trustee of such successor entity possessing
substantially the same powers and duties as the Property Trustee as
the holder of the Debentures; (iii) the Successor Securities are
listed or traded, or any Successor Securities shall be listed or
traded upon notification of issuance, on any national securities
exchange or other organization on which the Preferred Securities
are then listed, if any; (iv) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and privileges of the
holders of the Preferred Securities (including any Successor
Securities) in any material respect; (v) 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
Preferred 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 shall be required to register
as an "investment company" under the Investment Company Act; and
(vi) the Depositor 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 Preferred 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 Person or permit any other Person to
consolidate, amalgamate, merge with or into, or replace it if such
consolidation, amalgamation, merger or replacement would cause the
Trust or the successor entity to be classified as other than a
grantor trust for United States federal income tax purposes.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 1001. LIMITATION OF RIGHTS OF SECURITYHOLDERS.
The death or incapacity of any Person having an interest,
beneficial or otherwise, in Trust Securities shall not operate to
terminate this Trust Agreement, 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
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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.
SECTION 1002. AMENDMENT.
(a) This Trust Agreement may be amended from time to time by
the Trustees and the Depositor, without the consent of any
Securityholders, (i) as provided in Section 811 with respect to
acceptance of appointment by a successor Trustee; (ii) to cure any
ambiguity, correct or supplement any provision herein or therein
which may be inconsistent with any other provision herein or
therein, or to make any other provisions with respect to matters or
questions arising under this Trust Agreement, that shall not be
inconsistent with the other provisions of this Trust Agreement; or
(iii) to modify, eliminate or add to any provisions of this Trust
Agreement to such extent as shall be necessary to ensure that the
Trust shall be classified for United States federal income tax
purposes as a grantor trust at all times that any Trust Securities
are outstanding or to ensure that the Trust shall not be required
to register as an "investment company" under the Investment Company
Act; provided, however, that in the case of clause (ii), such
action shall not adversely affect in any material respect the
interests of any Securityholder, and any amendments of this Trust
Agreement shall become effective when notice thereof is given to
the Securityholders.
(b) Except as provided in Section 601(c) or Section 1002(c)
hereof, any provision of this Trust Agreement may be amended by the
Trustees and the Depositor (i) with the consent of Trust
Securityholders representing not less than a majority (based upon
Liquidation Amounts) of the Trust Securities then Outstanding; and
(ii) upon 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 shall not affect the
Trust's status as a grantor trust for United States federal income
tax purposes or the Trust's exemption from status of an "investment
company" under the Investment Company Act.
(c) In addition to and notwithstanding any other provision in
this Trust Agreement, without the consent of each affected
Securityholder (such consent being obtained in accordance with
Section 603 or 606 hereof), this Trust Agreement 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 603 or 606
hereof), this paragraph (c) of this Section 1002 may not be
amended.
(d) Notwithstanding any other provisions of this Trust
Agreement, no Trustee shall enter into or consent to any amendment
to this Trust Agreement which would cause the Trust to fail or
cease to qualify for the exemption from status of an "investment
company" under the Investment Company Act or to fail or cease to be
classified as a grantor trust for United States federal income tax
purposes.
(e) Notwithstanding anything in this Trust Agreement to the
contrary, without the consent of the Depositor, this Trust
Agreement may not be amended in a manner which imposes any
additional obligation on the Depositor.
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(f) In the event that any amendment to this Trust Agreement
is made, the Administrative Trustees shall promptly provide to the
Depositor a copy of such amendment.
(g) Neither the Property Trustee nor the Delaware Trustee
shall be required to enter into any amendment to this Trust
Agreement which affects its own rights, duties or immunities under
this Trust Agreement. The Property Trustee shall be entitled to
receive an Opinion of Counsel and an Officers' Certificate stating
that any amendment to this Trust Agreement is in compliance with
this Trust Agreement.
SECTION 1003. SEPARABILITY.
In case any provision in this Trust Agreement 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 1004. GOVERNING LAW.
THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF
THE SECURITYHOLDERS, THE TRUST AND THE TRUSTEES WITH RESPECT TO
THIS TRUST AGREEMENT AND THE TRUST SECURITIES SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF DELAWARE
(WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES).
SECTION 1005. 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 which
is a Business Day (except as otherwise provided in Sections 401(a)
and 402(d)), with the same force and effect as though made on the
date fixed for such payment, and no distribution shall accumulate
thereon for the period after such date.
SECTION 1006. SUCCESSORS.
This Trust Agreement shall be binding upon and shall inure to
the benefit of any successor to the Depositor, the Trust or the
Relevant Trustee(s), including any successor by operation of law.
Except in connection with a consolidation, merger or sale involving
the Depositor that is permitted under Article XII 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 1007. HEADINGS.
The Article and Section headings are for convenience only and
shall not affect the construction of this Trust Agreement.
SECTION 1008. REPORTS, NOTICES AND DEMANDS.
Any report, notice, demand or other communication which by any
provision of this Trust Agreement is required or permitted to be
given or served to or upon any Securityholder or the Depositor
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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 Preferred Securityholder, to such Preferred Securityholder as
such Securityholder's name and address may appear on the Securities
Register; and (b) in the case of the Common Securityholder or the
Depositor, to First Banks, Inc., 11901 Olive Boulevard, St. Louis,
Missouri 63141, Attention: Chief Financial Officer, facsimile no.:
(314) 567-3490. Any notice to Preferred Securityholders shall 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 Trust Agreement is required or permitted to be
given or served to or upon the Trust, the Property 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 State Street Bank and
Trust Company, 2 International Place, 5th Floor, Boston, Massachusetts
02110, Attention: Corporate Trust Trustee; (b) with respect to the
Delaware Trustee, to Wilmington Trust Company, Rodney Square North, 1100
North Market Street, Wilmington, Delaware 19890-0001, Attention:
Corporate Trust Administration; and (c) with respect to the
Administrative Trustees, to them at the address above for notices to the
Depositor, marked "Attention: Administrative Trustees of First
Preferred Capital Trust." 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 1009. 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 1 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 of 1978, as amended) (collectively, "Bankruptcy
Laws") or otherwise join in the commencement of any proceeding
against the Trust under any Bankruptcy Law. In the event the
Depositor takes action in violation of this Section 1009, the
Property Trustee agrees, for the benefit of Securityholders, that
at the expense of the Depositor (which expense shall be paid prior
to the filing), 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 stopped and precluded therefrom.
The provisions of this Section 1009 shall survive the termination
of this Trust Agreement.
SECTION 1010. TRUST INDENTURE ACT; CONFLICT WITH TRUST
INDENTURE ACT.
(a) This Trust Agreement is subject to the provisions of the
Trust Indenture Act that are required to be part of this Trust
Agreement 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.
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(c) If any provision hereof limits, qualifies or conflicts
with another provision hereof which is required to be included in
this Trust Agreement by any of the provisions of the Trust
Indenture Act, such required provision shall control. If any
provision of this Trust Agreement 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
Trust Agreement as so modified or to be excluded, as the case may
be.
(d) The application of the Trust Indenture Act to this Trust
Agreement shall not affect the nature of the Securities as equity
securities representing undivided beneficial interests in the
assets of the Trust.
SECTION 1011. ACCEPTANCE OF TERMS OF TRUST AGREEMENT,
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 TRUST AGREEMENT AND
AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE
GUARANTEE AND THE INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF
THE TRUST, SUCH SECURITYHOLDER AND SUCH OTHERS THAT THE TERMS AND
PROVISIONS OF THIS TRUST AGREEMENT SHALL BE BINDING, OPERATIVE AND
EFFECTIVE AS BETWEEN THE TRUST AND SUCH SECURITYHOLDER AND SUCH
OTHERS.
FIRST BANKS, INC.
By:--------------------------------------
Name:
Title:
STATE STREET BANK AND TRUST COMPANY,
as Property Trustee
By:--------------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY,
as Delaware Trustee
By:--------------------------------------
Name:
Title:
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----------------------------------------------------
James F. Dierberg, as Administrative Trustee
----------------------------------------------------
Allen H. Blake, as Administrative Trustee
----------------------------------------------------
Laurence J. Brost, as Administrative Trustee
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EXHIBIT A
CERTIFICATE OF TRUST
OF
FIRST PREFERRED CAPITAL TRUST
THIS CERTIFICATE OF TRUST OF FIRST PREFERRED CAPITAL TRUST
(the "Trust"), dated as of December 12, 1996, is being duly
executed and filed by WILMINGTON TRUST COMPANY, a Delaware banking
corporation, JAMES F. DIERBERG, ALLEN H. BLAKE and LAURENCE J.
BROST, each an individual, as trustees, 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 FIRST
PREFERRED CAPITAL TRUST.
2. DELAWARE TRUSTEE. The name and business address of the
trustee of the Trust in the State of Delaware is Wilmington
Trust Company, Rodney Square North, 1100 North Market Street,
Wilmington, Delaware 19890-0001, Attention: Corporate Trust
Administration.
3. EFFECTIVE DATE. This Certificate of Trust shall be effective
on December 16, 1996.
IN WITNESS WHEREOF, the undersigned, being the sole trustees
of the Trust, has executed this Certificate of Trust as of the date
first above written.
WILMINGTON TRUST COMPANY,
as trustee
By:--------------------------------------
Name:------------------------------------
Title:-----------------------------------
-----------------------------------------
JAMES F. DIERBERG
as Trustee
-----------------------------------------
ALLEN H. BLAKE
as Trustee
-----------------------------------------
LAURENCE J. BROST
as Trustee
A-1
55
EXHIBIT B
[Intentionally Omitted]
B-1
56
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE
CERTIFICATE NUMBER ------ NUMBER OF COMMON SECURITIES
CERTIFICATE EVIDENCING COMMON SECURITIES
OF
FIRST PREFERRED CAPITAL TRUST
COMMON SECURITIES
(LIQUIDATION AMOUNT $25 PER COMMON SECURITY)
FIRST PREFERRED CAPITAL TRUST, a statutory business trust
created under the laws of the State of Delaware (the "Trust"),
hereby certifies that FIRST BANKS, INC. (the "Holder") is the
registered owner of ------------------------- (-------) common
securities of the Trust representing undivided beneficial interests
in the assets of the Trust and designated the -----% Common
Securities (liquidation amount $25 per Common Security) (the
"Common Securities"). In accordance with Section 510 of the Trust
Agreement (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 Trust Agreement of the
Trust dated as of January ---, 1997, as the same may be amended
from time to time (the "Trust Agreement"), including the
designation of the terms of the Common Securities as set forth
therein. The Trust shall furnish a copy of the Trust Agreement to
the Holder without charge upon written request to the Trust at its
principal place of business or registered office.
Upon receive of this certificate, the Holder is bound by the
Trust Agreement 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 January, 1997.
FIRST PREFERRED CAPITAL TRUST
By ------------------------------------
Name:
Title:
C-1
57
EXHIBIT D
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT AS TO EXPENSES AND LIABILITIES (this "Agreement")
dated as of January ---, 1997, between FIRST BANKS, INC., a
Missouri corporation ("First Banks"), and FIRST PREFERRED CAPITAL
TRUST, a Delaware business trust (the "Trust").
RECITALS
WHEREAS, the Trust intends to issue its common securities (the
"Common Securities") to, and receive Debentures from, First Banks
and to issue and sell First Preferred Capital Trust -----%
Cumulative Trust Preferred Securities (the "Preferred Securities")
with such powers, preferences and special rights and restrictions
as are set forth in the Amended and Restated Trust Agreement of the
Trust dated as of January --, 1997, as the same may be amended from
time to time (the "Trust Agreement");
WHEREAS, First Banks shall directly or indirectly own all of
the Common Securities of the Trust and shall issue the Debentures;
NOW, THEREFORE, in consideration of the purchase by each
holder of the Preferred Securities, which purchase First Banks
hereby agrees shall benefit First Banks and which purchase First
Banks acknowledges shall be made in reliance upon the execution and
delivery of this Agreement, First Banks, including in its capacity
as holder of the Common Securities, and the Trust hereby agree as
follows:
ARTICLE I
SECTION 1.1. GUARANTEE BY FIRST BANKS.
Subject to the terms and conditions hereof, First Banks,
including in its capacity as holder of the Common Securities,
hereby irrevocably and unconditionally guarantees to each person or
entity to whom the Trust is now or hereafter becomes indebted or
liable (the "Beneficiaries") the full payment when and as due, of
any and all Obligations (as hereinafter defined) to such
Beneficiaries. As used herein, "Obligations" means any costs,
expenses or liabilities of the Trust other than obligations of the
Trust to pay to holders of any Preferred Securities or other
similar interests in the Trust the amounts due such holders
pursuant to the terms of the Preferred Securities or such other
similar interests, as the case may be. This Agreement is intended
to be for the benefit of, and to be enforceable by, all such
Beneficiaries, whether or not such Beneficiaries have received
notice hereof.
SECTION 1.2. TERM OF AGREEMENT.
This Agreement shall terminate and be of no further force and
effect upon the later of (a) the date on which full payment has
been made of all amounts payable to all holders of all the
Preferred Securities (whether upon redemption, liquidation,
exchange or otherwise); and (b) the date on which there are no
Beneficiaries remaining; provided, however, that this Agreement
shall continue to be effective or shall be reinstated, as the case
may be, if at any time any holder of Preferred Securities or any
Beneficiary must restore payment of any sums paid under the
Preferred Securities, under any obligation, under the
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Preferred Securities Guarantee Agreement dated the date hereof by First Banks
and State Street Bank and Trust Company as guarantee trustee, or under this
Agreement for any reason whatsoever. This Agreement is continuing,
irrevocable, unconditional and absolute.
SECTION 1.3. WAIVER OF NOTICE.
First Banks hereby waives notice of acceptance of this
Agreement and of any obligation to which it applies or may apply,
and First Banks hereby waives presentment, demand for payment,
protest, notice of nonpayment, notice of dishonor, notice of
redemption and all other notices and demands.
SECTION 1.4. NO IMPAIRMENT.
The obligations, covenants, agreements and duties of First
Banks under this Agreement shall in no way be affected or impaired
by reason of the happening from time to time of any of the
following:
(a) the extension of time for the payment by the Trust of all
or any portion of the obligations or for the performance of any
other obligation under, arising out of, or in connection with, the
obligations;
(b) any failure, omission, delay or lack of diligence on the
part of the Beneficiaries to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Beneficiaries with
respect to the obligations or any action on the part of the Trust
granting indulgence or extension of any kind; or
(c) the voluntary or involuntary liquidation, dissolution,
sale of any collateral, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization,
arrangement composition or readjustment of debt of, or other
similar proceedings affecting, the Trust or any of the assets of
the Trust.
There shall be no obligation of the Beneficiaries to give notice
to, or obtain the consent of, First Banks with respect to the
happening of any of the foregoing.
SECTION 1.5. ENFORCEMENT.
A Beneficiary may enforce this Agreement directly against
First Banks, and First Banks waives any right or remedy to require
that any action be brought against the Trust or any other person or
entity before proceeding against First Banks.
ARTICLE II
SECTION 2.1. BINDING EFFECT.
All guarantees and agreements contained in this Agreement
shall bind the successors, assigns, receivers, trustees and
representatives of First Banks and shall inure to the benefit of
the Beneficiaries.
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SECTION 2.2. AMENDMENT.
So long as there remains any Beneficiary or any Preferred
Securities of any series are outstanding, this Agreement shall not
be modified or amended in any manner adverse to such Beneficiary or
to the holders of the Preferred Securities.
SECTION 2.3. NOTICES.
Any notice, request or other communication required or
permitted to be given hereunder shall be given in writing by
delivering the same by facsimile transmission (confirmed by mail),
telex, or by registered or certified mail, addressed as follows
(and if so given, shall be deemed given when mailed or upon receipt
of an answerback, if sent by telex):
First Preferred Capital Trust
c/o First Banks, Inc.
11901 Olive Boulevard
St. Louis, MO 63141
Facsimile No.: (314) 567-3490
Attention: Chief Financial Officer
First Banks, Inc.
11901 Olive Boulevard
St. Louis, MO 63141
Facsimile No.: (314) 567-3490
Attention: Chief Financial Officer
SECTION 2.4. This agreement shall be governed by and
construed and interpreted in accordance with the laws of the State
of Missouri (without regard to conflict of laws principles).
THIS AGREEMENT is executed as of the day and year first above
written.
FIRST BANKS, INC.
By:--------------------------------------
Name:
Title:
FIRST PREFERRED CAPITAL TRUST
By:--------------------------------------
Name:
Title: Administrative Trustee
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EXHIBIT E
Certificate Number Number of Preferred Securities
P-
CUSIP NO.
Certificate Evidencing Preferred Securities
of
First Preferred Capital Trust
% Cumulative Trust Preferred Securities
(liquidation amount $25 per Preferred Security)
FIRST PREFERRED CAPITAL TRUST, a statutory business trust created
under the laws of the State of Delaware (the "Trust"), hereby
certifies that ---------------- (the "Holder") is the registered
owner of ----- preferred securities of the Trust representing
undivided beneficial interests in the assets of the Trust and
designated the ----------% Cumulative Trust Preferred Securities
(liquidation amount $25 per Preferred Security) (the "Preferred
Securities"). The Preferred 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 504 of the Trust
Agreement. The designations, rights, privileges, restrictions,
preferences, and other terms and provisions of the Preferred
Securities are set forth in, and this certificate and the Preferred
Securities represented hereby are issued and shall in all respects
be subject to the terms and provisions of, the Amended and Restated
Trust Agreement of the Trust dated as of January --, 1997, as the
same may be amended from time to time (the "Trust Agreement"),
including the designation of the terms of Preferred Securities as
set forth therein. The Holder is entitled to the benefits of the
Preferred Securities Guarantee Agreement entered into by First
Banks, Inc., a Missouri corporation, and State Street Bank and Trust
Company, as guarantee trustee,
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61
dated as of January ---, 1997 (the "Guarantee"), to the extent provided
therein. The Trust shall furnish a copy of the Trust Agreement and the
Guarantee to the Holder without charge upon written request to the Trust at
its principal place of business or registered office.
Upon receive of this certificate, the Holder is bound by the
Trust Agreement 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 January, 1997.
FIRST PREFERRED CAPITAL TRUST
By ------------------------------------
Name:
Title:
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