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1ST SOURCE CAPITAL TRUST II
AMENDED AND RESTATED
TRUST AGREEMENT
among
1ST SOURCE CORPORATION, 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 -------------, 1997
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TABLE OF CONTENTS
PAGE
ARTICLE I - DEFINED TERMS 1
Section 101. Definitions 1
ARTICLE II - ESTABLISHMENT OF THE TRUST 8
Section 201. Name 8
Section 202. Office of the Delaware Trustee;
Principal Place of Business 8
Section 203. Initial Contribution of Trust
Property; Organizational Expenses 9
Section 204. Issuance of the Preferred Securities 9
Section 205. Issuance of the Common Securities;
Subscription and Purchase of Debentures 9
Section 206. Declaration of Trust 10
Section 207. Authorization to Enter into Certain
Transactions 10
Section 208. Assets of Trust 13
Section 209. Title to Trust Property 13
ARTICLE III - PAYMENT ACCOUNT 13
Section 301. Payment Account 13
ARTICLE IV - DISTRIBUTIONS; REDEMPTION 14
Section 401. Distributions 14
Section 402. Redemption 14
Section 403. Subordination of Common Securities 16
Section 404. Payment Procedures 16
Section 405. Tax Returns and Reports 17
Section 406. Payment of Taxes, Duties, etc. of
the Trust 17
Section 407. Payments Under Indenture 17
ARTICLE V - TRUST SECURITIES CERTIFICATES 17
Section 501. Initial Ownership 17
Section 502. The Trust Securities Certificates 17
Section 503. Execution, Authentication and
Delivery of Trust Securities Certificates 18
Section 504. Registration of Transfer and
Exchange of Preferred Securities
Certificates 18
Section 505. Mutilated, Destroyed, Lost or Stolen
Trust Securities Certificates 19
Section 506. Persons Deemed Securityholders 19
Section 507. Access to List of Securityholders'
Names and Addresses 19
Section 508. Maintenance of Office or Agency 20
Section 509. Appointment of Paying Agent 20
Section 510. Ownership of Common Securities by
Depositor 21
Section 511. Preferred Securities Certificates 21
Section 512. [Intentionally Omitted] 21
Section 513. [Intentionally Omitted] 21
Section 514. Rights of Securityholders 21
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ARTICLE VI - ACTS OF SECURITYHOLDERS; MEETINGS; VOTING 22
Section 601. Limitations on Voting Rights 22
Section 602. Notice of Meetings 23
Section 603. Meetings of Preferred
Securityholders 23
Section 604. Voting Rights 23
Section 605. Proxies, etc. 23
Section 606. Securityholder Action by Written
Consent 24
Section 607. Record Date for Voting and Other
Purposes 24
Section 608. Acts of Securityholders 24
Section 609. Inspection of Records 25
ARTICLE VII - REPRESENTATIONS AND WARRANTIES 25
Section 701. Representations and Warranties of
the Bank and the Property Trustee 25
Section 702. Representations and Warranties of
the Delaware Bank and the Delaware Trustee 26
Section 703. Representations and Warranties of
Depositor 27
ARTICLE VIII - TRUSTEES 28
Section 801. Certain Duties and Responsibilities 28
Section 802. Certain Notices 29
Section 803. Certain Rights of Property Trustee 29
Section 804. Not Responsible for Recitals or
Issuance of Securities 31
Section 805. May Hold Securities 31
Section 806. Compensation; Indemnity; Fees 31
Section 807. Corporate Property Trustee Required;
Eligibility of Trustees 32
Section 808. Conflicting Interests 32
Section 809. Co-Trustees and Separate Trustee 32
Section 810. Resignation and Removal; Appointment
of Successor 34
Section 811. Acceptance of Appointment by
Successor 35
Section 812. Merger, Conversion, Consolidation or
Succession to Business 35
Section 813. Preferential Collection of Claims
Against Depositor or Trust 36
Section 814. Reports by Property Trustee 36
Section 815. Reports to the Property Trustee 36
Section 816. Evidence of Compliance with
Conditions Precedent 36
Section 817. Number of Trustees 37
Section 818. Delegation of Power 37
Section 819. Voting 37
ARTICLE IX - TERMINATION, LIQUIDATION AND MERGER 37
Section 901. Termination Upon Expiration Date 37
Section 902. Early Termination 38
Section 903. Termination 38
Section 904. Liquidation 38
Section 905. Mergers, Consolidations,
Amalgamations or Replacements of the Trust 39
ARTICLE X - MISCELLANEOUS PROVISIONS 40
Section 1001. Limitation of Rights of
Securityholders 40
Section 1002. Amendment 40
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Section 1003. Separability 42
Section 1004. Governing law 42
Section 1005. Payments Due on Non-Business Day 42
Section 1006. Successors 42
Section 1007. Headings 42
Section 1008. Reports, Notices and Demands 42
Section 1009. Agreement Not to Petition 43
Section 1010. Trust Indenture Act; Conflict with
Trust Indenture Act 43
Section 1011. Acceptance of Terms of Trust
Agreement, Guarantee and Indenture 44
Exhibit A Certificate of Trust
Exhibit B [Intentionally Omitted]
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
Trust Indenture Act Amended 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
Note: This Cross-Reference Table does not constitute part of
this Agreement and should not affect the 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
- ----------------, 1997 among (i) 1ST SOURCE CORPORATION, an
Indiana corporation (including any successors or assigns, the
"Depositor"), (ii) STATE STREET BANK AND TRUST COMPANY, a trust
company duly organized and existing under the laws of the
Commonwealth 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) Christopher J. Murphy III, an individual,
Wellington D. Jones III, an individual, and Larry E. Lentych, an
individual, each of whose address is c/o 1st Source Corporation,
100 North Michigan Street, South Bend, Indiana 46601 (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
Christopher J. Murphy III, Wellington D. Jones III and Larry E.
Lentych, 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 February 20, 1997 (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 February 20, 1997, 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:
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(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;
(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.
"3-Month Treasury" has the meaning specified in Section
401(e).
"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 Christopher J. Murphy
III, Wellington D. Jones III and Larry E. Lentych, 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.
"Authenticating Agent" means an authenticating agent with
respect to the Preferred Securities appointed by the Property
Trustee pursuant to Section 503.
"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
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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
(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.
"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 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.
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"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 Two International Place, 4th Floor,
Boston, Massachusetts 02110, Attention: Corporate Trust
Department.
"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 Trustee" means State Street Bank and Trust
Company, a banking corporation organized under the laws of the
Commonwealth of Massachusetts and any successor thereto, as
trustee under the Indenture.
"Debentures" means the $---------- aggregate principal
amount of the Depositor's Floating Rate 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.
"Determination Date" has the meaning specified in Section
401(e)(i).
"Distribution Date" has the meaning specified in
Section 401(a).
"Distribution Period" has the meaning specified in Section
401(b).
"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
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(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 State
Street Bank and 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 -------------,
1997, between the Depositor and the Debenture Trustee, as
trustee, as amended or supplemented from time to time pertaining
to the Floating Rate Debentures due 2027 of the Depositor.
"Investment Company Act," means the Investment Company Act
of 1940, as amended, as in effect at the date of execution of
this instrument.
"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 (b) above shall
carry with it
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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.
"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
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(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.
"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.
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"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.
"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 ------------, 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
"1st Source Capital Trust II," 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
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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 1st Source
Corporation, 100 North Michigan Street, South Bend, Indiana
46601.
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 ------, 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,
additional 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
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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, additional 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 Property Trustee 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 the last sentence
of Section 204.
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;
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(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;
(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;
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(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;
(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
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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;
(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
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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.
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 June 30, 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) 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
per annum determined by reference to 3-Month Treasury, determined
as described below, plus ---- % during any period beginning on,
and including, the date of original issuance, and ending on, but
excluding, the first Interest Payment Date, and each successive
period beginning on, and including, an Interest Payment Date, and
ending on, but excluding, the next succeeding Interest Payment
Date (a "Distribution Period") applied to the principal amount
thereof, until the principal hereof shall have become due and
payable, and on any overdue principal and (without duplication)
on any overdue installment of interest at the same rate per annum
compounded quarterly; provided, however, that said interest rate
for the first Distribution Period shall be ----%. 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 by 12:30
p.m. on each Distribution Date in the Payment Account for the
payment of such Distributions.
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(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 the 15th day of the month in
which the Distribution is payable.
(e) "3-Month Treasury" means the yield on United States of
America Treasury constant maturities, adjusted to a constant
maturity of three (3) months, reported by the Federal Reserve.
3-Month Treasury, with respect to any Distribution Period, will be
determined by the Property Trustee as follows:
(f) The Property Trustee will notify the Company, the Debenture
Trustee and any securities exchange or interdealer quotation system
on which the Preferred Securities are listed, of the Distribution Rate
and the Distribution Date for each Distribution Period, in each case
as soon as practicable after the determination thereof but in no
event later than the seventh Business Day of the relevant Distribution
Period. Failure to notify the Company, the Debenture Trustee or any
securities exchange or interdealer quotation system, or any defect in
said notice, shall not affect the obligation of the Company to make
payment on the Debentures at the applicable Distribution Rate. Any
error in the calculation of the Distribution Rate by the Property
Trustee may be corrected at any time by notice delivered as above
provided.
(g) Subject to the corrective rights set forth above, all
certificates, communications, opinions, determinations, calculations,
quotations and decisions given, expressed, made or obtained for the
purposes of the provisions relating to the payment and calculation of
Distributions on the Debentures and the Preferred Securities and the
Debentures by the Debenture Trustee or the Property Trustee will
(in the absence of willful default, bad faith and manifest error) be
binding on the Trust, the Company, and all of the holders of the
Preferred Securities, and no liability will (in the absence of willful
default, bad faith or manifest error) attach to the Debenture Trustee
or the Property Trustee in connection with the exercise or non-exercise
by either of them or their respective powers, duties and discretion.
(i) On the second Business Day preceding the
commencement of such Distribution Period (each a
"Determination Date"), 3-Month Treasury will be the current
yield for United States of America Treasury constant
maturities, adjusted to a constant maturity of three (3)
months, which appears on the applicable Federal Reserve
Statistical Release Series H.15 (519) which includes data
for such Determination Date, or as then currently furnished
or made available by the Federal Reserve if such Series is
no longer published.
(ii) If, with respect to any Determination Date, the
Property Trustee is required but unable to determine 3-Month
Treasury in the manner provided in paragraph (i), 3-Month
Treasury for such Distribution Period will be 3-Month
Treasury as determined on the previous Determination Date.
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 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
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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) 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 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.
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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 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.
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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.
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
or facsimile signature of at least one Administrative Trustee.
Trust Securities Certificates bearing the manual or facsimile
signatures of individuals who were, at the time when such
signatures shall have been affixed, authorized to sign on behalf
of the Trust, shall be validly issued and entitled to the
benefits of this 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, Authentication and Delivery of
Trust Securities Certificates.
(a) 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.
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(b) A Preferred Securities Certificate shall not be valid
until authenticated by the manual signature of an authorized
signatory of the Property Trustee. The signature shall be
conclusive evidence that the Preferred Securities Certificate has
been authenticated under this Trust Agreement. Each Preferred
Security Certificate shall be dated the date of its
authentication.
Upon the written order of the Trust signed by the
Administrative Trustee, the Property Trustee shall authenticate
and make available for delivery the Preferred Securities
Certificates.
The Property Trustee may appoint an Authenticating Agent
acceptable to the Trust to authenticate the Preferred Securities.
An Authenticating Agent may authenticate the Preferred Securities
whenever the Property Trustee may do so. Each reference in this
Trust Agreement to authentication by the Property Trustee
includes authentication by such agent. An Authenticating Agent
has the same rights as the Property Trustee to deal with the
Company or the Trust.
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 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.
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(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.
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.
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Section 508. Maintenance of Office or Agency.
The Administrative Trustees shall maintain in The City of
New York or other location designated by the Administrative
Trustees, 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 Corporate Trust Office of the
Property Trustee, Two International Place, 4th 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 Property Trustee shall act as the 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
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".
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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.
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.
(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.
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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.
(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
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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.
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
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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 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.
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(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 trust company duly organized, validly
existing and in good standing under the laws of the Commonwealth
of Massachusetts;
(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 Commonwealth 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;
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(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 Commonwealth 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;
(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;
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(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 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
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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;
(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.
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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;
(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
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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;
(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
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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 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 Trust Property as
a result of any amount due pursuant to this Section 806.
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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.
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.
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(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 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.
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(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 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).
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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 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 May 15 with respect
to:
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(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 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
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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.
ARTICLE IX
TERMINATION, LIQUIDATION AND MERGER
Section 901. Termination Upon Expiration Date.
Unless earlier dissolved, the Trust shall automatically
dissolve on March 31, 2052 (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.
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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:
(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
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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 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
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46
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 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.
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(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.
(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, 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.
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48
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
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 1st Source Corporation, 100
North Michigan Street, South Bend, Indiana 46601, Attention:
Chief Financial Officer, facsimile no.: (219) 235-2414. 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, Two International Place, 4th Floor, Boston,
Massachusetts 02110, Attention: Corporate Trust Department;
(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 1st
Source Capital Trust, c/o Chief Financial Officer, 1st Source
Corporation." 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
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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.
(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.
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50
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.
1ST SOURCE CORPORATION
as Depositor
By:--------------------------------------
Name:
Title:
STATE STREET BANK AND TRUST COMPANY,
as Property Trustee
By:--------------------------------------
Name:
Title:
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51
WILMINGTON TRUST COMPANY,
as Delaware Trustee
By:--------------------------------------
Name:
Title:
-----------------------------------------
Christopher J. Murphy III,
as Administrative Trustee
-----------------------------------------
Wellington D. Jones III,
as Administrative Trustee
-----------------------------------------
Larry E. Lentych,
as Administrative Trustee
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52
EXHIBIT A
CERTIFICATE OF TRUST
OF
1ST SOURCE CAPITAL TRUST II
THIS CERTIFICATE OF TRUST OF 1ST SOURCE CAPITAL TRUST II (the
"Trust"), dated as of February 27, 1997, is being duly executed
and filed by WILMINGTON TRUST COMPANY, a Delaware banking
corporation, Christopher J. Murphy III, Wellington D. Jones III
and Larry E. Lentych, 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 1ST
SOURCE CAPITAL TRUST II.
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 February 27, 1997.
IN WITNESS WHEREOF, the undersigned, being the sole trustees
of the Trust, have executed this Certificate of Trust as of the
date first above written.
WILMINGTON TRUST COMPANY,
as trustee
By:--------------------------------------
Name:------------------------------------
Title:-----------------------------------
-----------------------------------------
Christopher J. Murphy III
as Trustee
-----------------------------------------
Wellington D. Jones III
as Trustee
-----------------------------------------
Larry E. Lentych
as Trustee
A-1
53
EXHIBIT B
[Intentionally Omitted]
A-2
54
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE
Certificate Number 1 Number of Common Securities: -------
Certificate Evidencing Common Securities
of
1st Source Capital Trust II
Common Securities
(liquidation amount $25.00 per Common Security)
1ST SOURCE CAPITAL TRUST II, a statutory business trust created
under the laws of the State of Delaware (the "Trust"), hereby
certifies that 1st Source Corporation (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 Floating Rate Common Securities (liquidation amount $25.00
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
- -------------, 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
- --------------------, 1997.
1ST SOURCE CAPITAL TRUST II
By ------------------------------------
Name:
Title:
C-1
55
EXHIBIT D
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT AS TO EXPENSES AND LIABILITIES (this "Agreement")
dated as of -------------, 1997, between 1ST SOURCE CORPORATION,
an Indiana corporation ("the Company"), and 1ST SOURCE CAPITAL
TRUST II, a Delaware business trust (the "Trust").
RECITALS
WHEREAS, the Trust intends to issue its common securities
(the "Common Securities") to, and receive Debentures from, the
Company and to issue and sell ------------------------- Floating
Rate 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 -------------, 1997, as the
same may be amended from time to time (the "Trust Agreement");
WHEREAS, the Company 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 the Company
hereby agrees shall benefit the Company and which purchase the
Company acknowledges shall be made in reliance upon the execution
and delivery of this Agreement, the Company, including in its
capacity as holder of the Common Securities, and the Trust hereby
agree as follows:
ARTICLE I
Section 1.1. Guarantee by the Company.
Subject to the terms and conditions hereof, the Company,
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
D-1
56
must restore payment of any sums paid under the Preferred
Securities, under any obligation, under the Preferred
Securities Guarantee Agreement dated the date hereof by the
Company 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.
The Company hereby waives notice of acceptance of this
Agreement and of any obligation to which it applies or may apply,
and the Company 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 the
Company 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, the Company with respect to the
happening of any of the foregoing.
Section 1.5. Enforcement.
A Beneficiary may enforce this Agreement directly against
the Company, and the Company waives any right or remedy to
require that any action be brought against the Trust or any other
person or entity before proceeding against the Company.
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 the Company and shall inure to the benefit of
the Beneficiaries.
D-2
57
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):
1st Source Capital Trust
c/o 1st Source Corporation
100 North Michigan Street
South Bend, Indiana 46601
Facsimile No.: (219) 235-2414
Attention: ----------------------------
1st Source Corporation
100 North Michigan Street
South Bend, Indiana 46601
Facsimile No.: (219) 235-2414
Attention: ----------------------------
Section 2.4. This agreement shall be governed by and
construed and interpreted in accordance with the laws of the
State of Indiana (without regard to conflict of laws principles).
THIS AGREEMENT is executed as of the day and year first
above written.
1ST SOURCE CORPORATION
By:--------------------------------------
Name:
Title:
1ST SOURCE CAPITAL TRUST II
By:--------------------------------------
Name:
Title: Administrative Trustee
D-3
58
EXHIBIT E
Certificate Number Number of Preferred Securities --------
P-
Certificate Evidencing Preferred Securities
of
1st Source Capital Trust II
Floating Rate Cumulative Trust Preferred Securities
(liquidation amount $25 per Preferred Security)
CUSIP NO. -------
1st Source Capital Trust II, 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 Floating Rate 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 (as defined herein). 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 -------------, 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 1st Source Corporation, an Indiana corporation, and State
Street Bank and Trust Company, as guarantee trustee, dated as of
- -------------, 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 receipt of this certificate, the Holder is bound by the
Trust Agreement and is entitled to the benefits thereunder.
Unless the Certificate of Authentication has been manually
executed by the Authentication Agent, this certificate is not
valid or effective.
IN WITNESS WHEREOF, the Administrative Trustees of the Trust
have executed this certificate as of the date hereof.
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59
Dated: 1ST SOURCE CAPITAL TRUST II
CERTIFICATE OF AUTHENTICATION
This is one of the ----% By-------------------------------
Cumulative Trust Preferred Trustee
Securities referred to in the
within-mentioned Amended and
Restated Trust Agreement. By-------------------------------
Trustee
STATE STREET BANK & TRUST
COMPANY, as Authentication
Agent and Registrar By-------------------------------
Trustee
By------------------------------
Authorized Signature
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60
[FORM ON REVERSE OF CERTIFICATE]
The Trust will furnish without charge to any registered owner of
Preferred Securities who so requests, a copy of the Trust
Agreement and the Guarantee. Any such request should be in
writing and addressed to 1st Source Capital Trust II, c/o 1st Source
Corporation, 100 North Michigan Street, South Bend, Indiana 46601
or to the Registrar named on the face of this Certificate.
The following abbreviations, when used in the inscription on the
face of this certificate, shall be construed as though they were
written out in full according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of
survivorship and not as tenants
in common
TOD - transfer on death direction in event of owner's death,
to person named on face and subject to TOD rules referenced
UNIF GIFT MIN ACT - ..............Custodian...............
(Cust) (Minor)
under Uniform Gifts to Minors
Act...................................
(State)
UNIF TRF MIN ACT - ........Custodian (until age).........
(Cust)
.............under Uniform Transfers
(Minor)
to Minors Act.........................
(State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, ------------------ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------
- --------------------------------------
- ------------------------------------------------------------------------------
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- --------------------------------------------------------- Preferred Securities
represented by the within Certificate, and do hereby irrevocably constitute
and appoint
- --------------------------------------------------------------------- Attorney
to transfer the said Preferred Securities on the books of the within named
Corporation with full power of substitution in the premises.
Dated,------------------------------
------------------------------------------------------
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST
CORRESPOND WITH THE NAME AS WRITTEN UPON THE
FACE OF THE CERTIFICATE IN EVERY PARTICULAR,
WITHOUT ALTERNATION OR ENLARGEMENT OR ANY
CHANGE WHATEVER.
SIGNATURE(S) GUARANTEED:
- ------------------------------------------------------------------
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR
INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS
AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED MEDALLION
SIGNATURE GUARANTEE PROGRAM), PURSUANT TO S.E.C. RULE 17Ad-15.
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