Exhibit 4.9.3
Amended and Restated Trust Agreement
EFSC Capital Trust I
AMENDED AND RESTATED TRUST AGREEMENT
AMONG
Enterprise Financial Services Corp., AS DEPOSITOR,
Wells Fargo Bank, National Association, AS PROPERTY TRUSTEE,
Wells Fargo Delaware Trust Company, AS RESIDENT TRUSTEE,
AND
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
EFFECTIVE AS OF June 27, 2002
TABLE OF CONTENTS
Page
ARTICLE I DEFINED TERMS...........................................................................2
Section 1.1 Definitions..........................................................................2
ARTICLE II ESTABLISHMENT OF THE TRUST.............................................................11
Section 2.1 Name................................................................................11
Section 2.2 Office of the Resident Trustee; Principal Place of Business of the Trust............11
Section 2.3 Initial Contribution of Trust Property; Organizational Expenses.....................11
Section 2.4 Issuance of the Trust Preferred Securities..........................................11
Section 2.5 Issuance of the Common Securities; Subscription and Purchase of Debentures..........12
Section 2.6 Declaration of Trust................................................................12
Section 2.7 Authorization of Trustees to Enter into Certain Transactions........................12
Section 2.8 Assets of Trust.....................................................................16
Section 2.9 Title to Trust Property.............................................................16
ARTICLE III PAYMENT ACCOUNT........................................................................16
Section 3.1 Payment Account.....................................................................16
ARTICLE IV DISTRIBUTIONS; REDEMPTION..............................................................17
Section 4.1 Distributions.......................................................................17
Section 4.2 Redemption..........................................................................19
Section 4.3 Subordination of Common Securities..................................................21
Section 4.4 Payment Procedures..................................................................22
Section 4.5 Tax Returns and Reports.............................................................22
Section 4.6 Payment of Taxes, Duties, etc. of the Trust.........................................22
Section 4.7 Payments Under Indenture............................................................22
ARTICLE V TRUST SECURITIES CERTIFICATES..........................................................22
Section 5.1 Initial Ownership...................................................................22
Section 5.2 The Trust Securities Certificates...................................................23
Section 5.3 Execution, Authentication and Delivery of Trust Securities Certificates.............23
Section 5.4 Registration of Transfer and Exchange of Trust Preferred Securities Certificates....24
Section 5.5 Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates..................28
Section 5.6 Person Deemed Securityholders.......................................................28
-i-
TABLE OF CONTENTS
Page
Section 5.7 Access to List of Securityholders' Names and Addresses..............................29
Section 5.8 Maintenance of Office or Agency.....................................................29
Section 5.9 Appointment of Paying Agent.........................................................29
Section 5.10 Ownership of Common Securities by Depositor.........................................30
Section 5.11 Trust Securities Certificates.......................................................30
Section 5.12 [Reserved.].........................................................................31
Section 5.13 Rights of Securityholders...........................................................31
ARTICLE VI ACTS OF SECURITYHOLDERS; MEETINGS; VOTING..............................................32
Section 6.1 Limitations on Voting Rights........................................................32
Section 6.2 Notice of Meetings..................................................................33
Section 6.3 Meetings of Holder/Holders of the Trust Preferred Securities........................33
Section 6.4 Voting Rights.......................................................................33
Section 6.5 Proxies, etc........................................................................34
Section 6.6 Securityholder Action by Written Consent............................................34
Section 6.7 Record Date for Voting and Other Purposes...........................................34
Section 6.8 Acts of Securityholders.............................................................34
Section 6.9 Inspection of Records...............................................................35
ARTICLE VII REPRESENTATIONS AND WARRANTIES.........................................................36
Section 7.1 Representations and Warranties of the Bank and the Property Trustee.................36
Section 7.2 Representations and Warranties of the Delaware Bank and the Resident Trustee........37
Section 7.3 Representations and Warranties of Depositor.........................................38
ARTICLE VIII TRUSTEES...............................................................................39
Section 8.1 Number of Trustees..................................................................39
Section 8.2 Certain Duties and Responsibilities.................................................39
Section 8.3 Certain Notices.....................................................................41
Section 8.4 Certain Rights of the Property Trustee..............................................41
Section 8.5 Not Responsible for Recitals or Issuance of Securities..............................43
Section 8.6 May Hold Securities.................................................................43
Section 8.7 Compensation; Indemnity; Fees.......................................................44
Section 8.8 Corporate Property Trustee Required; Eligibility of Trustees........................44
Section 8.9 Conflicting Interests...............................................................45
-ii-
TABLE OF CONTENTS
Page
Section 8.10 Co-Trustees and Separate Trustee....................................................45
Section 8.11 Resignation and Removal; Appointment of Successor...................................47
Section 8.12 Acceptance of Appointment by Successor..............................................48
Section 8.13 Merger, Conversion, Consolidation or Succession to Business.........................49
Section 8.14 Preferential Collection of Claims Against Depositor or Trust........................49
Section 8.15 Reports by Property Trustee.........................................................49
Section 8.16 Reports to the Property Trustee.....................................................49
Section 8.17 Evidence of Compliance with Conditions Precedent....................................50
Section 8.18 Delegation of Power.................................................................50
Section 8.19 Voting..............................................................................50
ARTICLE IX TERMINATION, LIQUIDATION AND MERGER....................................................51
Section 9.1 Termination Upon Expiration Date....................................................51
Section 9.2 Early Termination...................................................................51
Section 9.3 Termination.........................................................................51
Section 9.4 Liquidation.........................................................................51
Section 9.5 Mergers, Consolidations, Amalgamations or Replacements of the Trust.................53
ARTICLE X MISCELLANEOUS PROVISIONS...............................................................54
Section 10.1 Limitation of Rights of Securityholders.............................................54
Section 10.2 Amendment...........................................................................55
Section 10.3 Severability........................................................................56
Section 10.4 Governing Law.......................................................................56
Section 10.5 Payments Due on Non-Business Day....................................................57
Section 10.6 Successors..........................................................................57
Section 10.7 Headings............................................................................57
Section 10.8 Reports, Notices and Demands........................................................57
Section 10.9 Agreement not to Petition...........................................................58
Section 10.10 Applicability of Trust Indenture Act; Conflict......................................58
Section 10.11 Acceptance of Terms of Trust Agreement, Guarantee and Indenture.....................59
-iii-
TABLE OF CONTENTS
Page
EXHIBITS
Exhibit A Form of Certificate of Trust of EFSC Capital Trust I
Exhibit B Form of Common Security Certificate
Exhibit C Form of Agreement as to Expenses and Liabilities
Exhibit D Form of Floating Rate Cumulative Trust Preferred Security Certificate
Exhibit E Form of Transferee Letter of Representations
Exhibit F Form of Transferor Letter of Representations
-iv-
AMENDED AND RESTATED TRUST AGREEMENT
AMENDED AND RESTATED TRUST AGREEMENT, effective as of June 27, 2002, among
(i) Enterprise Financial Services Corp., a Delaware corporation (including any
successors or assigns, the "Depositor"), (ii) Wells Fargo Bank, National
Association, a national banking association with its principal place of business
in the State of Delaware, as property trustee (the "Property Trustee" and, in
its separate individual capacity and not in its capacity as Property Trustee,
the "Bank"), (iii) Wells Fargo Delaware Trust Company with its principal place
of business in the State of Delaware, as Resident Trustee (the "Resident
Trustee," and, in its separate individual capacity and not in its capacity as
Resident Trustee, the "Delaware Bank") (iv) Frank H. Sanfilippo and Stacey Tate,
as administrative trustees (each an "Administrative Trustee" and together the
"Administrative Trustees") (the Property Trustee, the Resident Trustee and the
Administrative Trustees referred to collectively as the "Trustees"), and (v) the
several Holders (as hereinafter defined).
RECITALS
WHEREAS, the Depositor, the Resident Trustee, and Administrative Trustees,
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, effective as of June , 2002 (the "Original Trust Agreement"), and
---
by the execution and filing by the Resident Trustee and the Administrative
Trustees with the Secretary of State of the State of Delaware of the Certificate
of Trust, filed on June , 2002, the form of which is attached as Exhibit A;
---
and
WHEREAS, the parties hereto 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
Trust Preferred Securities (as defined herein) by the Trust pursuant to the
Placement 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 or continuation, as applicable 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 1.1 Definitions.
For all purposes of this Trust Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article I have the meanings assigned to
them in this Article I and include the plural as well as the singular;
(b) all other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may
be, of this Trust Agreement; and
(d) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Trust Agreement as a whole and not to any
particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.8 hereof.
"Additional Amount" means, with respect to Trust Securities of a given
Liquidation Amount and/or a given period, the amount of Deferred Interest
accrued on interest in arrears and paid by the Depositor on a Like Amount of
Debentures for such period, but shall not include Additional Sums, if any.
"Additional Interest" has the meaning specified in Section 1.1 of the
Indenture.
"Additional Sums" has the meaning specified in Section 1.1 of the
Indenture.
"Administrative Trustee" means each of Frank H. Sanfilippo and Stacey Tate,
solely in his or her capacity as Administrative Trustee of the Trust continued
hereunder and not in his or her individual capacity, or such Administrative
Trustee's successor in interest in such capacity, or any successor
administrative 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, (b) 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
Trust Preferred Securities appointed by the Property Trustee pursuant to Section
5.3 hereof.
"Bank" has the meaning specified in the Preamble to this Trust Agreement.
"Bankruptcy Event" means, with respect to any Person:
-2-
(a) the entry of a decree or order by a court having jurisdiction in
the premises adjudging such Person bankrupt or insolvent, or approving as
properly filed a petition seeking liquidation or reorganization of or in
respect of such Person under the United States Bankruptcy Code of 1978, as
amended, or any other similar applicable federal or state law, and the
continuance of any such decree or order unvacated and unstayed for a period
of 90 days; or the commencement of an involuntary case under the United
States Bankruptcy Code of 1978, as amended, in respect of such Person,
which shall continue undismissed for a period of 90 days or entry of an
order for relief in such case; or the entry of a decree or order of a court
having jurisdiction in the premises for the appointment on the ground of
insolvency or bankruptcy of a receiver, custodian, liquidator, trustee or
assignee in bankruptcy or insolvency of such Person or of its property, or
for the winding up or liquidation of its affairs, and such decree or order
shall have remained in force unvacated and unstayed for a period of 90
days; or
(b) the institution by such Person of proceedings to be adjudicated a
voluntary bankruptcy, 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 a general assignment by such Person for the benefit of
creditors.
"Bankruptcy Laws" has the meaning specified in Section 10.9 hereof.
"Board Resolution" means a copy of a resolution certified by the 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 Wilmington, Delaware or Minneapolis, Minnesota 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 are closed for business.
"Calculation Agent" has the meaning specified in Section 4.1(d).
"Certificate of Trust" means the certificate of trust filed with the
Secretary of State of the State of Delaware with respect to the Trust, as
amended or restated from time to time.
"Change in 1940 Act Law" shall have the meaning set forth in the definition
of "Investment Company Event."
"Closing Date" means the date of execution and delivery of this Trust
Agreement.
-3-
"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 Securities Certificate" means a certificate evidencing ownership of
Common Securities, substantially in the form attached hereto as Exhibit B.
"Common Security" means an undivided common beneficial interest in the
assets of the Trust, having a per share Liquidation Amount of $1,000 and having
the rights provided therefor in this Trust Agreement, including the right to
receive Distributions and a Liquidation Distribution as provided herein.
"Company" means Enterprise Financial Services Corp., a Delaware corporation
and registered bank holding company under the Bank Holding Company Act of 1956,
as amended.
"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 c/o Wells Fargo Bank, National Association.
"Debenture Event of Default" means an "Event of Default" as defined in
Section 7.1 of the Indenture.
"Debenture Redemption Date" means, with respect to any Debentures to be
redeemed under the Indenture, the date fixed for redemption under the Indenture.
"Debenture Tax Event" means a "Tax Event" as specified in Section 1.1 of
the Indenture.
"Debenture Trustee" means Wells Fargo Bank, National Association with its
principal place of business in the State of Delaware and any successor thereto,
acting not in its individual capacity but solely as trustee under the Indenture.
"Debentures" means the Four Million One Hundred Twenty Four Thousand
Dollars ($4,124,000) aggregate principal amount of the Floating Rate Junior
Subordinated Deferrable Interest Debentures due June 30, 2032, issued by the
Depositor pursuant to the Indenture.
"Deferred Interest" shall have the meaning set forth in Section 4.1 of the
Indenture.
"Definitive Trust Preferred Securities Certificates" means Trust Preferred
Securities Certificates issued in certificated, fully registered form as
provided in Section 5.11 hereof.
"Delaware Bank" has the meaning specified in the Preamble to this Trust
Agreement.
"Delaware Business Trust Act" means the Delaware Business Trust Act, 12
Del.C. Section 3801, et seq, as it may be amended from time to time.
-4-
"Depositor" has the meaning specified in the Preamble to this Trust
Agreement.
"Distribution Date" has the meaning specified in Section 4.1(a) hereof.
"Distribution Period" has the meaning set forth in Section 4.1(a) hereof.
"Distribution Reset Date" has the meaning set forth in Section 4.1(d)
hereof.
"Distributions" means amounts payable in respect of the Trust Securities as
provided in Section 4.1 hereof.
"Early Termination Date" has the meaning specified in Section 9.2 hereof.
"Event of Default" means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) the occurrence of a Debenture Event of Default; or
(b) default by the Trust in the payment of any Distribution when it
becomes due and payable, and continuation of such default for a period of
30 days; or
(c) default by the Trust in the payment of any Redemption Price of any
Trust Security when it becomes due and payable; or
(d) default in the performance, or breach, in any material respect, of
any covenant or warranty of the Trustees in this 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 Amount of
the Outstanding Trust 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 or any successor
statute thereto, in each case as amended from time to time.
"Expense Agreement" means the Agreement as to Expenses and Liabilities
between the Depositor and the Trust, substantially in the form attached hereto
as Exhibit C, as amended from time to time.
"Expiration Date" has the meaning specified in Section 9.1 hereof.
-5-
"Extended Interest Payment Period" has the meaning specified in Section 4.1
of the Indenture.
"Floating Distribution Rate" has the meaning specified in Section 4.1(b)
hereof.
"Holder" or "Securityholder" means a Person in whose name a Trust Security
is, or Trust Securities are, registered in the Securities Register; any such
Person is a beneficial owner within the meaning of the Delaware Business Trust
Act.
"Indenture" means the Indenture, effective as of June 27, 2002, between the
Depositor and the Debenture Trustee, as trustee, as amended or supplemented from
time to time.
"Investment Company Act" means the Investment Company Act of 1940 or any
successor statute thereto, in each case as amended from time to time.
"Investment Company Event" means the receipt by the Trust and the Depositor
of an Opinion of Counsel, rendered by a law firm having a recognized national
securities law practice, to the effect that, as a result of the occurrence of a
change in law or regulation or a change in interpretation or application of law
or regulation by any legislative body, court, governmental agency or regulatory
authority (a "Change in 1940 Act Law"), the Trust is or shall be considered an
"investment company" that is required to be registered under the Investment
Company Act, which Change in 1940 Act Law becomes effective on or after the date
of original issuance of the Trust Preferred Securities under this Trust
Agreement; provided, however, that the Depositor or the Administrative Trustees
on behalf of the Trust shall have requested and received such an Opinion of
Counsel with regard to such matters within a reasonable period of time after the
Depositor or the Administrative Trustees on behalf of the Trust shall have
become aware of the possible occurrence of any such event.
"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 an aggregate Liquidation Amount equal to the aggregate
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 dissolution 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 accrued interest in an amount equal to the accrued and unpaid
interest then due on such Debentures.
"Liquidation Amount" means the stated amount of $1,000 per Trust Security.
"Liquidation Date" means the date on which Debentures are to be distributed
to Holders of Trust Securities in connection with a dissolution and liquidation
of the Trust pursuant to Section 9.4(a).
-6-
"Liquidation Distribution" has the meaning specified in Section 9.4(d).
"Majority in Liquidation Amount" means, with respect to the Trust
Securities, except as provided in the terms of the Trust Preferred Securities
or, if the Indenture is then required to be qualified under the Trust Indenture
Act, by the Trust Indenture Act, Holder(s) of Outstanding Trust Securities
voting together as a single class or, as the context may require, Holders of
Outstanding Trust Preferred Securities or Holders of Outstanding Common
Securities voting separately as a class, who are the record owners of more than
50% of the aggregate Liquidation Amount of all Outstanding Trust Securities of
the relevant class.
"Maturity Date" means the date on which the Debentures mature and on which
the principal shall be due and payable together with all accrued and unpaid
interest thereon including Compounded Interest and Additional Interest (each as
defined in the Indenture), if any.
"Officers' Certificate" means a certificate signed by the Chief Executive
Officer, President or an Executive Vice President and by the Treasurer or the
Vice President--Finance or the Secretary, of the Depositor, and delivered to the
appropriate Trustee. One of the officers signing an Officers' Certificate given
pursuant to Section 8.17 hereof 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 independent, outside
legal counsel for the Trust, the Property Trustee, the Resident Trustee or the
Depositor, 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 Trust Preferred Securities, means,
as of the date of determination, all Trust Preferred Securities theretofore
executed and delivered under this Trust Agreement, except:
-7-
(a) Trust Preferred Securities theretofore canceled by the Property
Trustee or delivered to the Property Trustee for cancellation;
(b) Trust 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 Trust Preferred
Securities; provided that, if such Trust Preferred Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this
Trust Agreement; and
(c) Trust Preferred Securities which have been paid or in exchange for
or in lieu of which other Trust Preferred Securities have been executed and
delivered pursuant to Sections 5.4, 5.5 and 5.11; provided, however, that
in determining whether the Holders of the requisite Liquidation Amount of
the Outstanding Trust Preferred Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Trust
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 Trust 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 Trust
Preferred Securities are owned by the Depositor, one or more of the
Trustees and/or any such Affiliate. Trust 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 to the Trust Preferred Securities of Depositor or any
Affiliate of the Depositor.
"Paying Agent" means any paying agent or co-paying agent appointed pursuant
to Section 5.9 hereof 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 4.1 and 4.2 hereof.
"Person" means any individual, corporation, partnership, joint venture,
trust, limited liability company, unincorporated organization or government or
any agency or political subdivision thereof.
"Placement Agreement" means the Placement Agreement, effective as of June
27, 2002, among the Trust, the Depositor and the Placement Agent named therein.
"Preferred Securities Guarantee" means the Trust Preferred Securities
Guarantee Agreement executed and delivered by the Depositor and Wells Fargo
Bank, National Association, as trustee, contemporaneously with the execution and
delivery of this Trust Agreement, for the benefit of the holders of the Trust
Preferred Securities, as amended from time to time.
-8-
"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 (i) each Redemption Date must fall on a Distribution Date, and
(ii) 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, plus the related amount of the premium, if
any, paid by the Depositor upon the concurrent redemption of a Like Amount of
Debentures, allocated on a pro rata basis (based on Liquidation Amounts) among
the Trust Securities.
"Relevant Trustee" shall have the meaning specified in Section 8.11 hereof.
"Resale Restriction Termination Date" means, with respect to the offer,
sale or other transfer of a Trust Preferred Security, (a) the date which is two
years (or such shorter period of time as permitted by Rule 144(k) under the
Securities Act) after the later of the original issue date of such Trust
Preferred Security and the last date on which the Company or any Affiliate of
the Company was the owner of such Trust Preferred Security (or any predecessor
of the Trust Preferred Security) and (b) such later date, if any, as may be
required by applicable laws.
"Resident Trustee" means the commercial bank or trust company identified as
the "Resident Trustee" in the Preamble to this Trust Agreement solely in its
capacity as Resident Trustee of the Trust continued hereunder and not in its
individual capacity, or its successor in interest in such capacity, or any
successor Resident Trustee appointed as herein provided.
"Responsible Officer" when used with respect to the Property Trustee means
any officer assigned to the Corporate Trust Office and having direct
responsibility for the administration of this Trust Agreement, and also, with
respect to a particular matter, any other officer of the Property Trustee to
whom such matter is referred because of such officer's knowledge of and
familiarity with the particular subject.
"Securities Register" and "Securities Registrar" shall have the respective
meanings specified in Section 5.4 hereof.
"Securityholder" or "Holder" means a Person in whose name a Trust Security
is, or Trust Securities are, registered in the Securities Register; any such
Person is a beneficial owner within the meaning of the Delaware Business Trust
Act.
"Three-Month LIBOR Rate" has the meaning specified in Section 4.1(d).
-9-
"Trust" means the Delaware business trust created by the filing of the
Certificate of Trust with the Secretary of State of the State of Delaware and
the execution of the Original Trust Agreement, 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, if any, 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 Preferred Securities Certificate" means a certificate evidencing
ownership of Trust Preferred Securities, substantially in the form attached
hereto as Exhibit D.
"Trust Preferred Security" means an undivided preferred beneficial interest
in the assets of the Trust, having a per share Liquidation Amount of $1,000 and
having the rights provided therefor in this Trust Agreement, including the right
to receive Distributions and a Liquidation Distribution as provided herein.
"Trust Property" means (a) the Debentures; (b) the rights of the Property
Trustee, if any, under the Guarantee; (c) any cash on deposit in, or owing to,
the Payment Account; (d) the Initial Contribution (as defined in Section 2.3);
and (e) 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 terms of this Trust Agreement.
"Trust Security" means any one of the Common Securities or the Trust
Preferred Securities.
"Trust Securities Certificate" means any one of the Common Securities
Certificates or the Trust Preferred Securities Certificates.
"Trustees" means, collectively, the Property Trustee, the Resident Trustee
and the Administrative Trustees.
ARTICLE II
ESTABLISHMENT OF THE TRUST
Section 2.1 Name.
The Trust continued hereby shall be known as "EFSC Capital Trust I," 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 and the Depositor
-10-
may engage in the transactions contemplated hereby, make and execute contracts
and other instruments on behalf of the Trust and sue and be sued.
Section 2.2 Office of the Resident Trustee; Principal Place of Business of
the Trust.
The address of the Resident Trustee is c/o Wells Fargo Delaware Trust
Company, 919 Market Street, Suite 700, Wilmington, Delaware 19801, Attn:
Corporate Trust Administration, or such other address as the Resident Trustee
may designate by written notice to the Securityholders and the Depositor. The
principal executive office of the Trust is 919 Market Street, Suite 700,
Wilmington, Delaware 19801.
Section 2.3 Initial Contribution of Trust Property; Organizational
Expenses.
The Resident Trustee and Administrative Trustees acknowledge receipt in
trust from the Depositor in connection with the Original Trust Agreement of the
sum of One Hundred Dollars ($100) (the "Initial Contribution"), which
constituted the initial Trust Property; and the Property Trustee acknowledges
receipt of all Trust Property pursuant to this Agreement. 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 2.4 Issuance of the Trust Preferred Securities.
Contemporaneously with the execution and delivery of this Trust Agreement,
an Administrative Trustee, on behalf of the Trust, shall execute and cause to be
delivered in accordance with Sections 5.2 and 5.3 Trust Preferred Securities
Certificates, registered in the name of the Persons entitled thereto in an
aggregate amount of Four Thousand (4,000) Trust Preferred Securities having an
aggregate Liquidation Amount of Four Million Dollars ($4,000,000) against
receipt of the aggregate purchase price of such Trust Preferred Securities of
Four Million Dollars ($4,000,000), which amount such Administrative Trustee
shall promptly deliver to the Property Trustee.
Section 2.5 Issuance of the Common Securities; Subscription and Purchase of
Debentures.
Contemporaneously with the execution and delivery of this Trust Agreement,
an Administrative Trustee, on behalf of the Trust, shall execute and cause to be
delivered to the Depositor in accordance with Sections 5.2 and 5.3, a Common
Securities Certificate, registered in the name of the Depositor, in an aggregate
amount of One Hundred Twenty Four (124) Common Securities having an aggregate
Liquidation Amount of One Hundred Twenty Four Thousand Dollars ($124,000)
against payment by the Depositor of such amount. Contemporaneously therewith, an
Administrative Trustee, on behalf of the Trust, shall subscribe to and purchase
from the Depositor Debentures, registered in the name of the Property Trustee on
behalf of the Trust and having an aggregate principal amount equal to Four
Million One Hundred Twenty Four Thousand Dollars ($4,124,000), 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 Four Million One
Hundred Twenty Four Thousand Dollars ($4,124,000).
-11-
Section 2.6 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;
(b) to make distributions as provided herein; (c) to enter into the agreements,
documents, and instruments necessary to accomplish (a) and (b); and (d) to
engage in those activities necessary, advisable or incidental thereto. The
Depositor hereby appoints, or confirms the appointment of, as the case may be,
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, or confirm their
acceptance, as the case may be, of such appointments. 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 Resident Trustee shall not be entitled to exercise
any powers, nor shall the Resident Trustee have any of the duties and
responsibilities, of the Property Trustee or the Administrative Trustees set
forth herein. The Resident Trustee shall be one of the Trustees of the Trust for
the sole and limited purpose of fulfilling the residency requirements of
applicable sections of the Delaware Business Trust Act.
Section 2.7 Authorization of Trustees 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 2.7 and Article VIII hereof, 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 acts set forth in
the following provision (i):
(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 and the
compliance with the Placement Agreement in connection
therewith;
(B) to cause the Trust to enter into, and to execute, deliver
and perform on behalf of the Trust, the Expense Agreement
and such other agreements or documents as may be necessary
or desirable in connection with the purposes and function of
the Trust;
(C) assisting in the registration of the Trust Preferred
Securities under state securities or blue sky laws, if
required, and the qualification of this Trust Agreement as a
trust indenture under the Trust Indenture Act, if required;
(D) the application for a taxpayer identification number for the
Trust;
-12-
(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 acquire as trust assets Debentures with the proceeds of
the sale of the Trust Securities;
(H) 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;
(I) the taking of 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 Trust Preferred Securities or to enable
the Trust to effect the purposes for which the Trust was
created; and
(J) 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 and maintenance 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;
-13-
(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 in good faith 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) engaging in such ministerial activities as shall be
necessary or appropriate to effect the redemption of the
Trust Securities to the extent the Debentures are redeemed
or mature.
Except as otherwise provided in this Section 2.7(a)(ii), the Property Trustee
shall have none of the duties, liabilities, powers or the authority of the
Administrative Trustees set forth in Section 2.7(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, on behalf of
the Trust (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 Trust Preferred
Securities, the Depositor shall have the right and responsibility, and is
hereby authorized, 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):
-14-
(i) the determination of the states in which to take appropriate
action to qualify or, register for sale all or part of the Trust
Preferred Securities and to do any and all such acts, other than
actions which must be taken by or on behalf of the Trust, and
advise the Trustees of actions they must take on behalf of the
Trust, and prepare for execution and filing any documents to be
executed and filed by the Trust or on behalf of the Trust, as the
Depositor deems necessary or advisable in order to comply with
the applicable laws of any such States; and
(ii) the negotiation of the terms of, and the execution and delivery
of, the Placement Agreement providing for the sale of the Trust
Preferred Securities; and
(iii) the taking of any other actions necessary or desirable to carry
out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the
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 10.2, the Depositor and the Administrative
Trustees are authorized to take any action and the Administrative Trustees
are authorized to direct the Property Trustee in writing 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. The Property
Trustee shall take any action so directed by one or more of the
Administrative Trustees.
Section 2.8 Assets of Trust.
The assets of the Trust shall consist of the Trust Property.
Section 2.9 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 3.1 Payment Account.
(a) On the Closing Date, the Property Trustee shall establish the
Payment Account. The Property Trustee and any agent of the Property Trustee
shall have exclusive
-15-
control and sole right of withdrawal with respect to the Payment Account
for the purpose of making deposits and withdrawals from the Payment Account
in accordance with this Trust Agreement. All money 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 4.1 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 June 27,
2002, and, except during any Extended Interest Payment Period with respect
to the Debentures, shall be payable quarterly in arrears on March 30, June
30, September 30 and December 30 of each year, commencing on September 30,
2002 (each such quarter, a "Distribution Period"). 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 increase in the
amount of interest or other payment in respect of any such delay) except
that, if such Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day (and
without any reduction in the amount of interest or any other payment in
respect of any such acceleration), in each case with the same force and
effect as if made on such date (each date on which Distributions are
payable in accordance with this Section 4.1(a), a "Distribution Date").
(b) The Trust Securities represent undivided beneficial interests in
the Trust Property, and the Distributions on the Trust Securities shall be
payable at a floating rate ("Floating Distribution Rate") of
[________________] per annum over the Three Month LIBOR Rate (as defined
below) from time to time in effect on the Liquidation Amount of the Trust
Securities. The Floating Distribution Rate for each Distribution Period
will be set pursuant to Section 4.1(d) of this Article IV; provided, that
the initial Floating Distribution Rate will be set on June 27, 2002. In no
event shall the Floating Distribution Rate exceed 12% prior to June 30,
2007.
(c) The amount of Distributions payable for any full Distribution
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
-16-
Payment Period with respect to the Debentures, Distributions on the Trust
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.
(d) The "Three-Month LIBOR Rate" shall mean the rate determined in
accordance with the following provisions:
(i) On the second London business day preceding each Distribution
Date (each such date, a "Distribution Reset Date"), Wells Fargo
Bank, National Association (the "Calculation Agent"), will
determine the Three-Month LIBOR Rate which shall be the rate for
deposits in the London interbank market in U.S. dollars having a
three-month maturity commencing on the second London business day
immediately following such Distribution Reset Date which appears
on the Telerate Page 3750 as of 11:00 a.m., London time, on such
Distribution Reset Date. "Telerate Page 3750" means the display
on Page 3750 of the Dow Jones Telerate Service (or such other
page as may replace that page on that service for the purpose of
displaying London interbank offered rates of major banks for U.S.
dollar deposits). If the Three-Month LIBOR Rate on such
Distribution Reset Date does not appear on the Telerate Page
3750, such Three-Month LIBOR Rate will be determined as described
in (ii) below. London business day means any day on which
dealings in deposits in U.S. dollars are transacted in the London
interbank market.
(ii) With respect to a Distribution Reset Date for which the
Three-Month LIBOR Rate does not appear on the Telerate Page 3750
as specified in (i) above, the Calculation Agent will request the
principal London offices of each of Barclays Bank PLC, Midland
Bank PLC and National Westminster Bank PLC in the London
interbank market, as selected in good faith by the Calculation
Agent, to provide the Calculation Agent with its offered
quotation for deposits in U.S. dollars having a three-month
maturity commencing on the second London business day immediately
following such Distribution Reset Date to prime banks in the
London interbank market at approximately 11:00 a.m., London time,
on such Distribution Reset Date and in a principal amount that is
representative for a single transaction in such market at such
time. If at least two such quotations are provided, the
Three-Month LIBOR Rate on such Distribution Reset Date will be
the arithmetic mean (rounded upwards, if necessary, to the
nearest one hundred-thousandth of a percentage point, with five
or more one-millionths of one percentage point rounded upwards)
of such quotations. If fewer than two quotations are provided,
the Three-Month LIBOR Rate determined on such Distribution Reset
Date will be the arithmetic mean (rounded upwards, if necessary,
to the nearest one hundred-thousandth of a percentage point, with
five or more one-millionths of one percentage point rounded
upwards) of the rates quoted at approximately 11:00 a.m., New
York City time, on such Distribution
-17-
Reset Date for loans in U.S. dollars to leading European banks,
having a three-month maturity commencing on the second London
business day immediately following such Distribution Reset Date
and in a principal amount that is representative for a single
transaction in such market at such time by J.P. Morgan Chase &
Co, Citibank and Bank of New York in New York City; provided,
however, if the banks so selected by the Calculation Agent are
not quoting as aforesaid, the Three-Month LIBOR Rate with respect
to such Distribution Reset Date will be the Three-Month LIBOR
Rate in effect on such Distribution Reset Date.
(e) 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 on hand
and immediately and legally available by 12:30 p.m. New York City time on
each Distribution Date in the Payment Account for the payment of such
Distributions.
(f) 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 on the relevant record date, which shall be the
15th day of the month in which the relevant Distribution Date occurs, which
Distribution Dates correspond to the interest payment dates on the
Debentures.
Section 4.2 Redemption
(a) On each Debenture Redemption Date and on the 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, if any, contained in such notice. All notices of redemption
shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the CUSIP number, if any;
(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;
(v) that, on the Redemption Date, the Redemption Price shall become
due and payable upon each such Trust Security to be redeemed and
that
-18-
Distributions thereon shall cease to accumulate on and after said
date, except as provided in Section 4.2(d); and
(vi) the place or places at which Trust Securities are to be
surrendered for the payment of the Redemption Price.
(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price with the proceeds from the contemporaneous
redemption of Debentures. Redemptions of the Trust Securities shall be made
and the Redemption Price shall be payable on each Redemption Date only to
the extent that the Trust has immediately and legally available funds then
on hand and legally available in the Payment Account for the payment of
such Redemption Price.
(d) If the Property Trustee gives a notice of redemption in respect of
any Trust Preferred Securities, then, by 12:00 noon, New York City time, on
the Redemption Date, subject to Section 4.2(c), the Property Trustee,
subject to Section 4.2(c), 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 Trust 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 Securities 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, (i) all rights of Securityholders holding Trust Securities so
called for redemption shall cease with respect to such Trust Securities,
except the right of such Securityholders to receive the Redemption Price,
without interest, (ii) such Trust Securities shall cease to be Outstanding,
and (iii) any Trust Securities Certificates will be deemed to represent
Debentures having a principal amount equal to the stated Liquidation Amount
of the Trust Securities represented thereby and bearing accrued and unpaid
interest in an amount equal to the accumulated and unpaid Distributions on
such Trust Securities until such certificates are presented to the
Securities Registrar for transfer or reissuance. In the event that any date
on which any Redemption Price is payable is not a Business Day, then
payment of the Redemption Price payable on such date shall be made on the
next succeeding day that is a Business Day (and without any interest or
other payment in respect of any such delay) except that, if such Business
Day is in the next succeeding calendar year, such payment shall be made on
the immediately preceding Business Day (and without any reduction of
interest or any other payment in respect of any such acceleration), in each
case with the same force and effect as if made on such date. In the event
that payment of the Redemption Price in respect of any Trust Securities
called for redemption is improperly withheld or refused and not paid either
by the Trust or by the Depositor pursuant to the Preferred Securities
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.
-19-
(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 4.3(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 Trust Preferred Securities. The particular Trust 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 Trust
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 such Liquidation Amount or an integral multiple of
such Liquidation Amount in excess thereof) of the Liquidation Amount of the
Trust Preferred Securities of a denomination larger than such Liquidation
Amount, provided, however, that in the event the redemption relates only to
Trust Preferred Securities held by the Depositor being redeemed in exchange
for a Like Amount of Debentures, the Property Trustee shall select the
particular Trust Preferred Securities for redemption. The Property Trustee
shall promptly notify the Securities Registrar in writing of the Trust
Preferred Securities selected for redemption and, in the case of any Trust
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 Trust Preferred Securities shall relate, in the case of any
Trust Preferred Securities redeemed or to be redeemed only in part, to the
portion of the Liquidation Amount of Trust Preferred Securities which has
been or is to be redeemed.
Section 4.3 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 4.2(f), pro rata among the
Common Securities and the Trust 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 Trust 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 Trust Preferred Securities then called for redemption, shall
have been made or provided for, and all funds immediately and legally
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, Trust Preferred Securities then
due and payable.
-20-
(b) In the case of the occurrence of any Event of Default resulting
from a Debenture Event of Default, the Holder of the 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 Trust Preferred Securities shall have
been cured, waived or otherwise eliminated. Until any such Event of Default
under this Trust Agreement with respect to the Trust Preferred Securities
shall have been so cured, waived or otherwise eliminated, the Property
Trustee shall act solely on behalf of the Holders of the Trust Preferred
Securities and not the Holder of the Common Securities, and only the
Holders of the Trust Preferred Securities shall have the right to direct
the Property Trustee to act on their behalf.
Section 4.4 Payment Procedures.
Payments of Distributions (including Additional Amounts, if applicable) in
respect of the Trust 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 on the relevant record date. Payments in respect of the
Common Securities shall be made in such manner as shall be mutually agreed
between the Property Trustee and the Holder of the Common Securities.
Section 4.5 Tax Returns and Reports.
The Administrative Trustees shall prepare (or cause to be prepared), at the
Depositor's expense, and file all information returns and reports required to be
filed by or in respect of the Trust by applicable taxing authorities. In this
regard, the Administrative Trustees shall (a) prepare and file (or cause to be
prepared and filed) the appropriate forms required to be filed in respect of the
Trust in each taxable year of the Trust; and (b) prepare and furnish (or cause
to be prepared and furnished) to each Securityholder the appropriate forms
required to be furnished to such Securityholder or the information required to
be provided on such forms. 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 all applicable withholding
and backup withholding tax laws and information reporting requirements with
respect to any payments to Securityholders under the Trust Securities.
Section 4.6 Payment of Taxes, Duties, etc. of the Trust.
Upon receipt under the Debentures of Additional Sums (as defined in Section
1.1 of the Indenture), the Property Trustee, at the written direction of an
Administrative Trustee or the Depositor, shall promptly pay any taxes, duties or
governmental charges of whatsoever nature imposed on the Trust by the United
States or any other taxing authority.
Section 4.7 Payments Under Indenture.
Any amount payable hereunder to any record holder of Trust Preferred
Securities shall be reduced by the amount of any corresponding payment such
Holder has directly received under the Indenture pursuant to Section 5.13(b) or
(c) hereof.
-21-
ARTICLE V
TRUST SECURITIES CERTIFICATES
Section 5.1 Initial Ownership.
Upon the creation of the Trust and the contribution by the Depositor
pursuant to Section 2.3 hereof and until the issuance of the Trust Securities,
and at any time during which no Trust Securities are Outstanding, the Depositor
shall be the sole beneficial owner of the Trust.
Section 5.2 The Trust Securities Certificates.
Subject to Sections 5.4(h) and (i), the Trust Preferred Securities
Certificates shall be issued in minimum denominations of the Liquidation Amount
and integral multiples of such Liquidation Amount in excess thereof, and the
Common Securities Certificates shall be issued in denominations of the
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 5.4, 5.11
and 5.13 hereof.
Section 5.3 Execution, Authentication and Delivery of Trust Securities
Certificates.
(a) On the Closing Date, the Administrative Trustees shall cause Trust
Securities Certificates, in an aggregate Liquidation Amount as provided in
Sections 2.4 and 2.5 hereof, to be executed on behalf of the Trust by the
manual or facsimile signature of at least one of the Administrative
Trustees, cause the Common Securities Certificate to be delivered to the
Depositor, and cause the Trust Preferred Securities Certificates to be
delivered to the Property Trustee and upon receipt of such delivery the
Property Trustee shall authenticate such Trust Preferred Securities
Certificates and deliver such Trust Preferred Securities Certificates, upon
written order of the Administrative Trustees on behalf of the Trust, as set
forth below, in authorized denominations.
(b) A Trust 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 Trust
Preferred Securities Certificate has been authenticated under this Trust
Agreement. Each Trust Preferred Security Certificate shall be effective the
date of its authentication.
-22-
Upon the written order of the Trust signed by one of the Administrative
Trustees, the Property Trustee shall authenticate and make available for
delivery the Trust Preferred Securities Certificates.
The Property Trustee may appoint an Authenticating Agent acceptable to the
Trust to authenticate the Trust Preferred Securities Certificates. An
Authenticating Agent may authenticate the Trust Preferred Securities
Certificates 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 5.4 Registration of Transfer and Exchange of Trust Preferred
Securities Certificates.
(a) The Depositor shall keep or cause to be kept, at the office or
agency maintained pursuant to Section 5.8 hereof, a register or registers
for the purpose of registering Trust Securities Certificates and transfers
and exchanges of Trust 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 Trust Preferred
Securities Certificates and Common Securities Certificates (subject to
Section 5.10 hereof in the case of the Common Securities Certificates) and
registration of transfers and exchanges of Trust Preferred Securities
Certificates as herein provided. The Securities Registrar shall not be
required to register the transfer of any Trust Preferred Securities that
have been called for redemption. The Property Trustee shall be the initial
Securities Registrar.
(b) Upon surrender for registration of transfer of any Trust Preferred
Securities Certificate at the office or agency maintained pursuant to
Section 5.8 hereof, the Administrative Trustees or any one of them shall,
if the requirements for such transfer, as set forth herein and on the Trust
Preferred Securities Certificate, are met, execute by manual or facsimile
signature and deliver and the Property Trustee shall, upon written order of
one of the Administrative Trustees on behalf of the Trust, authenticate and
make available for delivery, in the name of the designated transferee or
transferees, one or more new Trust Preferred Securities Certificates in
authorized denominations of a like aggregate Liquidation Amount effective
the date of execution by such Administrative Trustee or Trustees. At the
option of a Holder, Trust Preferred Securities Certificates may be
exchanged for other Trust Preferred Securities Certificates in authorized
denominations of the same class and of a like aggregate Liquidation Amount
upon surrender of the Trust Preferred Securities Certificates to be
exchanged at the office or agency maintained pursuant to Section 5.8. The
procedures for exchanges shall be the same for transfers as set forth in
this Subsection 5.4(b).
(c) The Trust Preferred Securities Certificates shall bear certain
legends identifying certain restrictions regarding the transfer of the
Trust Preferred Securities represented thereby, the first of which is
referred to herein as the "Restricted Securities Legend." The legends shall
not be removed; provided, however, that the Restricted
-23-
Securities Legend may be removed if the Administrative Trustees receive
such satisfactory evidence, which may include an Opinion of Counsel, as may
be reasonably required by the Administrative Trustees, that neither the
Restricted Securities Legend nor the restrictions on transfer set forth
therein are required to ensure that transfers thereof comply with the
provisions of the Securities Act. Upon provision of such satisfactory
evidence, the Property Trustee, at the written direction of the
Administrative Trustees, shall authenticate and deliver Trust Preferred
Securities Certificates that do not bear the Restricted Securities Legend.
(d) Except as permitted by Section 5.4(c), each Trust Preferred
Security Certificate shall bear the legends in substantially the following
form and a Trust Preferred Security Certificate shall not be transferred
except in compliance with such legends, unless otherwise determined by the
Administrative Trustees, upon the advice of counsel, in accordance with
applicable law:
THIS TRUST PREFERRED SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), ANY STATE SECURITIES LAWS
OR ANY OTHER APPLICABLE SECURITIES LAWS. NEITHER THIS TRUST PREFERRED
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS THE TRANSACTION IS EXEMPT FROM, OR
NOT SUBJECT TO, SUCH REGISTRATION. PRIOR TO (i) THE DATE WHICH IS TWO YEARS
(OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144(k) UNDER THE
SECURITIES ACT) AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE
LAST DATE ON WHICH THE TRUST OR ANY AFFILIATE OF THE TRUST WAS THE OWNER OF
THIS TRUST PREFERRED SECURITY (OR ANY PREDECESSOR OF THIS TRUST PREFERRED
SECURITY) OR (ii) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE
LAWS (THE "RESALE RESTRICTION TERMINATION DATE") THE HOLDER OF THIS TRUST
PREFERRED SECURITY BY ITS ACCEPTANCE HEREOF AGREES FOR THE BENEFIT OF THE
TRUST TO OFFER, SELL OR OTHERWISE TRANSFER THIS TRUST PREFERRED SECURITY
ONLY (A) TO THE TRUST OR AN AFFILIATE OF THE TRUST, (B) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THIS TRUST PREFERRED SECURITY IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A ("RULE 144A") PROMULGATED UNDER
THE SECURITIES ACT, TO A PERSON THE HOLDER REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN
COMPLIANCE WITH RULE 144A, (D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR"
WITHIN THE MEANING OF SUBPARAGRAPH (A)(1), (2), (3) OR (7) OF RULE 501
UNDER THE SECURITIES ACT THAT IS ACQUIRING
-24-
THIS TRUST PREFERRED SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF
SUCH AN INSTITUTIONAL "ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES AND
NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH, ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT TO THE TRUST'S AND THE ADMINISTRATIVE TRUSTEES' RIGHTS PRIOR
TO ANY SUCH OFFER, SALE, TRANSFER OR OTHER DISPOSITION (i) PURSUANT TO
CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY BY THE HOLDER OF AN OPINION OF
COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO THE TRUST
AND THE ADMINISTRATIVE TRUSTEES TO CONFIRM THAT SUCH TRANSFER IS BEING MADE
PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (ii) IN EACH OF THE
FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM
APPEARING ON THE OTHER SIDE OF THIS CERTIFICATE IS COMPLETED AND DELIVERED
BY THE TRANSFEROR TO THE PROPERTY TRUSTEE AND THE SECURITIES REGISTRAR IN
CONNECTION WITH ANY TRANSFER OF THIS SECURITY PRIOR TO THE RESALE
RESTRICTION TERMINATION DATE. THE HOLDER MUST CHECK THE APPROPRIATE BOX SET
FORTH ON THE CERTIFICATE OF TRANSFER RELATING TO THE MANNER OF SUCH
TRANSFER AND SUBMIT THE CERTIFICATE OF TRANSFER TO THE PROPERTY TRUSTEE AND
THE SECURITIES REGISTRAR. THIS LEGEND WILL BE REMOVED UPON REQUEST OF THE
HOLDER AFTER THE EARLIER OF (i) THE TRANSFER OF THE TRUST PREFERRED
SECURITY EVIDENCED HEREBY PURSUANT TO CLAUSE (B) ABOVE OR (ii) THE RESALE
RESTRICTION TERMINATION DATE. THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER
IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS TRUST PREFERRED SECURITY OF
THE RESALE RESTRICTIONS REFERRED TO HEREIN.
PRIOR TO THE RESALE RESTRICTION TERMINATION DATE, THIS TRUST PREFERRED
SECURITY MAY BE TRANSFERRED OR EXCHANGED ONLY IN A MINIMUM AGGREGATE
LIQUIDATION AMOUNT OF NOT LESS THAN $100,000. ANY ATTEMPTED TRANSFER OF
THIS TRUST PREFERRED SECURITY IN AN AGGREGATE LIQUIDATION AMOUNT OF LESS
THAN $100,000 PRIOR TO THE RESALE RESTRICTION TERMINATION DATE SHALL BE
DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER. AFTER SUCH RESALE
RESTRICTION TERMINATION DATE, ANY ATTEMPTED TRANSFER OF THIS TRUST
PREFERRED SECURITY IN AN AGGREGATE LIQUIDATION AMOUNT OF LESS THAN $100,000
SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER. ANY SUCH
PURPORTED TRANSFEREE SHALL BE DEEMED NOT TO BE THE
-25-
HOLDER OF THIS TRUST PREFERRED SECURITY FOR ANY PURPOSE, INCLUDING, BUT NOT
LIMITED TO, THE RIGHT TO RECEIVE DISTRIBUTIONS ON THIS TRUST PREFERRED
SECURITY, AND SUCH PURPORTED TRANSFEREE SHALL BE DEEMED TO HAVE NO INTEREST
WHATSOEVER IN THIS TRUST PREFERRED SECURITY.
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE SECURITIES
REGISTRAR SUCH CERTIFICATES AND OTHER INFORMATION AS MAY BE REQUIRED BY THE
AMENDED AND RESTATED TRUST AGREEMENT TO CONFIRM THAT THE TRANSFER COMPLIES
WITH THE FOREGOING RESTRICTIONS.
(e) Every Trust Preferred Securities Certificate presented or
surrendered for registration of transfer or exchange shall be duly endorsed
or 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, and, in the case of
Trust Preferred Securities Certificates bearing the Restricted Securities
Legends, accompanied by certification(s) in a form substantially similar to
the Letters of Representations attached as Exhibit E and Exhibit F, as
applicable, and evidence reasonably satisfactory to the Property Trustee or
the Securities Registrar as to the compliance with the restrictions set
forth in the Restricted Securities Legend. When Trust Preferred Securities
Certificates are presented to the Securities Registrar to register the
transfer of such certificates or to exchange such certificates which become
mutilated, destroyed, defaced, stolen or lost, for an equal number of Trust
Preferred Securities Certificates, the Securities Registrar shall register
the transfer or make the exchange as requested if its reasonable
requirements for such transactions are met. Each Trust 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 Trust 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 Trust 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 Trust Preferred Securities
so selected for redemption, in whole or in part, except the unredeemed
portion of any such Trust Preferred Securities being redeemed in part.
(f) No service charge shall be made for any registration of transfer
or exchange of Trust 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 Trust Preferred Securities Certificates.
(g) Trust Preferred Securities may only be transferred, in whole or in
part, in accordance with the terms and conditions set forth in this Trust
Agreement. Any transfer or purported transfer of any Trust Preferred
Security not made in accordance with this
-26-
Trust Agreement shall be null and void. A Trust Preferred Security may be
transferred, in whole or in part, to a Person who takes delivery in the
form of another Trust Preferred Security as provided in this Section 5.4.
(h) Prior to the Resale Restriction Termination Date, Trust Preferred
Securities may only be transferred in a minimum aggregate Liquidation
Amount of $100,000. Any attempted transfer of Trust Preferred Securities
having an aggregate Liquidation Amount of less than $100,000 shall be
deemed to be void and of no legal effect whatsoever. Any such purported
transferee shall be deemed not to be a Holder of such Trust Preferred
Securities for any purpose, including, but not limited to, the receipt of
Distributions on such Trust Preferred Securities, and such purported
transferee shall be deemed to have no interest whatsoever in such Trust
Preferred Securities.
(i) Subsequent to the Resale Restriction Termination Date, Trust
Preferred Securities may only be transferred in a minimum aggregate
Liquidation Amount of $100,000. Any attempted transfer of Trust Preferred
Securities subsequent to the Resale Restriction Termination Date having an
aggregate Liquidation Amount of less than $100,000 shall be deemed to be
void and of no legal effect whatsoever. Any such purported transferee shall
be deemed not to be a Holder of such Trust Preferred Securities for any
purpose, including, but not limited to, the receipt of Distributions on
such Trust Preferred Securities, and such purported transferee shall be
deemed to have no interest whatsoever in such Trust Preferred Securities.
Section 5.5 Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates.
If (a) any mutilated Trust Securities Certificate shall be surrendered to
the Trust or in the case of the Trust Preferred Securities to the Property
Trustee or the Securities Registrar, or if the Trust or, in the case of the
Trust Preferred Securities the Property Trustee or 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
Administrative Trustees or in the case of the Trust Preferred Securities to the
Property Trustee 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 5.5, 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 5.5 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.
-27-
Section 5.6 Person 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
none of the Trustees, the Paying Agent or the Securities Registrar shall be
bound by any notice to the contrary.
Section 5.7 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) within five Business Days of each
record date, 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 the 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 Property Trustee shall be as provided in the Trust Indenture Act. Each
Holder, by receiving and holding a Trust Securities Certificate shall be deemed
to have agreed not to hold the Depositor, the Property Trustee or the
Administrative Trustees accountable by reason of the disclosure of its name and
address, regardless of the source from which such information was derived.
Section 5.8 Maintenance of Office or Agency.
The Trust shall maintain, or cause to be maintained, in location(s)
designated by the Administrative Trustees, an office or offices or agency or
agencies where Trust 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, as the principal corporate trust office for such purposes. The
Administrative Trustees shall give prompt written notice to the Depositor, to
the Property Trustee and to the Securityholders of any change in the location of
the Securities Register or any such office or agency.
Section 5.9 Appointment of Paying Agent.
The Paying Agent shall make Distributions to Securityholders from the
Payment Account and shall report the amounts of such Distributions to the
Property Trustee and the Administrative Trustees. Any Paying Agent shall have
the revocable power to withdraw funds from the Payment Account for the purpose
of making the Distributions referred to above. The Administrative Trustees may
revoke such power and remove the Paying Agent if such Administrative Trustees
determine in their sole discretion that it would be in the best interests of the
Trust or that the
-28-
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. 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 8.2, 8.4 and 8.7 hereof 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 5.10 Ownership of Common Securities by Depositor.
On the Closing Date, the Depositor shall acquire and retain beneficial and
record ownership of all of the Common Securities then issued by the Trust, in an
amount equal to at least 3% of the total capital of the Trust. 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 "TO THE EXTENT PERMITTED BY
APPLICABLE LAW THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT IN COMPLIANCE WITH
SECTION 5.10 OF THE TRUST AGREEMENT."
Section 5.11 Trust Securities Certificates.
(a) Trust Preferred Securities Certificates representing a specified
number of Trust Preferred Securities shall be issued to the Persons
entitled thereto in the form of Definitive Trust Preferred Securities
Certificates.
(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.
(c) Nothing in this Section 5.11 withstanding, if at any time
subsequent to the date of issuance of the Definitive Trust Preferred
Securities Certificates, a majority (based upon Liquidation Amounts) of the
Trust Securities then Outstanding request
-29-
registration of such Definitive Trust Preferred Securities Certificates
with the Depository Trust Company ("DTC"), then all Holders shall submit
the Definitive Trust Preferred Securities Certificates to the
Administrative Trustees and the Administrative Trustees shall collect and
otherwise do all things reasonably required to so register such Trust
Preferred Securities with the DTC as book-entry only non-certificated Trust
Preferred Securities ("Registration"). Upon Registration, whether or not
the Definitive Trust Preferred Securities Certificates have been submitted
to the Administrative Trustees pursuant to this Section 5.11(c), all
Definitive Trust Preferred Securities Certificates shall be deemed
cancelled and all Trust Securities then Outstanding shall be issued as
book-entry only non-certificated Trust Preferred Securities. In the event
the Trust Preferred Securities are to become book-entry in accordance with
this Section 5.11(c), the Depositor and the Administrative Trustees shall
be authorized to amend this Agreement, as provided in Section 10.2(b), with
the consent of the Securities Registrar, such consent not to be
unreasonably withheld, so as to permit the issuance of a global Trust
Preferred Certificate that (i) shall represent, and shall be denominated in
an amount equal to the aggregate principal amount of the outstanding Trust
Preferred Securities, (ii) shall be registered in the name of DTC or its
nominee, (iii) shall be executed and authenticated in accordance with such
amendment and delivered by the Administrative Trustees to DTC or pursuant
to its instruction, and (iv) shall bear a legend substantially as set forth
in such amendment. Such amendment shall contain such other provisions as
are customary for declarations of trust containing securities that may be
issued in book-entry form.
Section 5.12 [Reserved.]
Section 5.13 Rights of Securityholders.
(a) The legal title to the Trust Property is vested exclusively in the
Property Trustee (in its capacity as such) in accordance with Section 2.9
hereof, 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 Trust Preferred Securities
against payment of the purchase price therefor, the Trust Preferred
Securities shall be fully paid and nonassessable preferred undivided
beneficial interests in the assets of the Trust. The Holders of the Trust
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 Trust 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 Trust Preferred Securities then Outstanding shall have such
right by a notice in writing to the Depositor and the Debenture Trustee;
and upon any
-30-
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 Trust Preferred Securities remain Outstanding,
upon a Debenture Event of Default arising from the failure to pay interest
or principal on the Debentures, the Holders of any Trust 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 Trust Preferred
Securities of such Holders.
ARTICLE VI
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
Section 6.1 Limitations on Voting Rights.
(a) Except as otherwise provided in this Section 6.1, in Sections
5.13, 8.11 and 10.2 hereof and in the Indenture and as otherwise required
by law, no Holder of Trust 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 on
behalf of the Trust, 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 Trust 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 Outstanding Trust Preferred Securities. The Trustees shall not
revoke any action previously authorized or approved by a vote of the
Holders of the Outstanding Trust Preferred Securities, except by a
subsequent vote of the Holders of the Outstanding Trust Preferred
Securities. The Property Trustee shall notify each Holder of the
Outstanding Trust Preferred Securities of any notice of default received
from the Debenture Trustee with respect to the Debentures. In addition to
obtaining the foregoing
-31-
approvals of the Holders of the Trust 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 Holders of the Trust 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 Trust 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 Trust 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 6.2 Notice of Meetings.
Notice of all meetings of the Holder/Holders of the Trust Preferred
Securities, stating the time, place and purpose of the meeting, shall be given
by the Administrative Trustees pursuant to Section 10.8 hereof to each Holder of
the Trust Preferred Securities of record, at his registered address, at least 15
days and not more than 90 days before the meeting. At any such meeting, any
business properly before the meeting may be so considered whether or not stated
in the notice of the meeting. Any adjourned meeting may be held as adjourned
without further notice.
Section 6.3 Meetings of Holder/Holders of the Trust Preferred Securities.
(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 Holder/Holders of the Trust
Preferred Securities are entitled to vote upon the written request of the
Holders of the Trust Preferred Securities of 25% of the Outstanding Trust
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 Holders of the Trust Preferred
Securities to vote on any matters as to which the Holders of the Trust
Preferred Securities are entitled to vote.
(b) Holders of record of 50% of the Outstanding Trust 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
Holders of the Trust Preferred Securities of record present, in person or
by proxy, holding not less than a majority of the Trust Preferred
Securities (based upon their aggregate Liquidation Amount) held by the
Holders of the Trust Preferred Securities of record present, either in
-32-
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 6.4 Voting Rights.
Securityholders shall be entitled to one vote for each $1,000 of
Liquidation Amount represented by their Trust Securities (with any fractional
multiple thereof rounded up or down as the case may be to the closest integral
multiple) in respect of any matter as to which such Securityholders are entitled
to vote.
Section 6.5 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.
Only Holders shall be entitled to vote. 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 6.6 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 not less 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
(based upon their aggregate Liquidation Amount) as shall be required by any
express provision of this Trust Agreement, shall consent to the action in
writing.
Section 6.7 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 or the Property Trustee 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 6.8 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
-33-
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 conclusive in favor of the Trustees, if
made in the manner provided in this Section 6.8.
(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 Trust Preferred Securities shall be proved by the
Securities Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Securityholder of any Trust Security shall bind
every future Securityholder of the same Trust Security and the
Securityholder of every Trust Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustees or the Trust
in reliance thereon, whether or not notation of such action is made upon
such Trust Security.
(e) Without limiting the foregoing, a Securityholder entitled
hereunder to take any action hereunder with regard to any particular Trust
Security may do so with regard to all or any part of the Liquidation Amount
of such Trust Security or by one or more duly appointed agents each of
which may do so pursuant to such appointment with regard to all or any part
of such Liquidation Amount.
(f) A Securityholder may institute a legal proceeding directly against
the Depositor under the Guarantee to enforce its rights under the Preferred
Securities Guarantee without first instituting a legal proceeding against
the Guarantee Trustee (as defined in the Preferred Securities Guarantee),
the Trust or any Person.
Section 6.9 Inspection of Records.
Upon reasonable notice to the Administrative Trustees and the Property
Trustee, the records of the Trust shall be open to inspection at the principal
executive office of the Trust (as indicated in Section 2.2 hereof) by Holders of
the Trust Securities during normal business hours for any purpose reasonably
related to such Securityholder's interest as a Securityholder.
-34-
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
Section 7.1 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 (in the case of a successor Property Trustee, the term "Bank"
as used herein shall be deemed to refer to such successor Property Trustee in
its separate capacity), hereby represents and warrants (as applicable) for the
benefit of the Depositor and the Securityholders that:
(a) the Bank is a national banking association with its principal
place of business in the State of Delaware and is duly organized and
validly existing under the laws of the United States of America or, with
respect to a successor Property Trustee, either a national banking
association or a state chartered bank and trust company;
(b) the Bank and Property Trustee have full power, authority and legal
right to execute, deliver and perform their obligations under this Trust
Agreement and have taken all necessary action to authorize the execution,
delivery and performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed and
delivered by the Property Trustee and constitutes the valid and legally
binding agreement of the Property Trustee enforceable against it in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles;
(d) the execution, delivery and performance by the Property Trustee of
this Trust Agreement has been duly authorized by all necessary corporate or
other action on the part of the Property Trustee and does not require any
approval of stockholders of the Bank and such execution, delivery and
performance shall not (i) violate the Bank's charter or by-laws; (ii)
violate any provision of, or constitute, with or without notice or lapse of
time, a default under, or result in the creation or imposition of, any Lien
on any properties included in the Trust Property pursuant to the provisions
of, any indenture, mortgage, credit agreement, license or other agreement
or instrument to which the Property Trustee or the Bank is a party or by
which it is bound; or (iii) violate any law, governmental rule or
regulation of the United States or the State of Delaware, as the case may
be, governing the banking or trust powers of the Bank or the Property
Trustee (as appropriate in context) or any order, judgment or decree
applicable to the Property Trustee or the Bank;
(e) neither the authorization, execution or delivery by the Property
Trustee of this Trust Agreement nor the consummation of any of the
transactions by the Property
-35-
Trustee contemplated herein or therein requires the consent or approval of,
the giving of notice to, the registration with or the taking of any other
action with respect to any governmental authority or agency under any
existing federal law governing the banking or trust powers of the Bank or
the Property Trustee, as the case may be, under the laws of the United
States or the State of Delaware, other than the filing of a Certificate of
Trust with the Secretary of State of the State of Delaware;
(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; and
(g) the Property Trustee is a Person eligible pursuant to the Trust
Indenture Act to act as such and has a combined capital and surplus of at
least $50,000,000.
Section 7.2 Representations and Warranties of the Delaware Bank and the
Resident Trustee.
The Delaware Bank and the Resident Trustee, each severally on behalf of and
as to itself, as of the date hereof, and each successor Resident Trustee at the
time of the successor Resident Trustee's acceptance of appointment as Resident
Trustee hereunder (the term "Delaware Bank" being used to refer to such
successor Resident 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 either a national banking association or
Delaware banking corporation duly organized, validly existing and in good
standing under applicable laws of the United States of America and the
State of Delaware;
(b) the Resident Trustee has full 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 Resident Trustee and constitutes the valid and legally
binding agreement of the Resident 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 Resident Trustee of
this Trust Agreement has been duly authorized by all necessary corporate or
other action on the part of the Resident 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
-36-
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
Resident 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 Resident Trustee (as appropriate in context) or any
order, judgment or decree applicable to the Delaware Bank or the Resident
Trustee;
(e) neither the authorization, execution or delivery by the Resident
Trustee of this Trust Agreement nor the consummation of any of the
transactions by the Resident 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 Resident Trustee,
as the case may be, under the laws of the United States or the State of
Delaware, other than the filing of the Certificate of Trust with the
Secretary of State of the State of Delaware; and
(f) there are no proceedings pending or, to the best of the Resident
Trustee's knowledge, threatened against or affecting the Delaware Bank or
the Resident 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 Resident Trustee to enter
into or perform its obligations as one of the Trustees under this Trust
Agreement.
Section 7.3 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 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 Resident Trustee, as the case may be, of this Trust Agreement.
-37-
ARTICLE VIII
TRUSTEES
Section 8.1 Number of Trustees.
The number of Trustees initially shall be Three (3), and:
(a) at any time before the issuance of any Trust Securities, the
Company may, by written instrument, increase or decrease the number of
Trustees; and
(b) after the issuance of any Trust Securities, the number of Trustees
may be increased or decreased by vote of the Holders of a Majority in
Liquidation Amount of the Common Securities voting as a class at a meeting
of the Holders of the Common Securities or pursuant to written consent;
provided, however, that, the number of Trustees shall in no event be less than
Four (4); provided further that (1) one Resident Trustee, which, in the case of
a natural person, shall be a person who is a resident of the State of Delaware
or that, if not a natural person, is an entity which has its principal place of
business in the State of Delaware; (2) there shall be at least one Trustee who
is an officer of the Company and who shall serve as an Administrative Trustee;
and (3) one Trustee shall be the Property Trustee, and such Property Trustee may
also serve as Resident Trustee if it meets the applicable requirements.
(c) If a Trustee ceases to hold office for any reason and the number
of Administrative Trustees is not reduced pursuant to Section 8.1(a) or
(b), or if the number of Trustees is increased pursuant to Section 8.1(a)
or (b), a vacancy shall occur. The vacancy shall be filled with a Trustee
appointed in accordance with Section 8.11 hereof.
(d) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not
operate to terminate, dissolve or 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 8.11 hereof, the Administrative Trustees in office, regardless of
their number (and notwithstanding any other provision of this Agreement),
shall have all the powers granted to the Administrative Trustees and shall
discharge all the duties imposed upon the Administrative Trustees by this
Trust Agreement.
Section 8.2 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,
also by the Trust Indenture Act, if applicable. Notwithstanding the
foregoing, no provision of this Trust Agreement shall require any Trustee
to expend or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder, or in the exercise of
any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it. No Administrative
Trustee nor the Resident Trustee shall be liable for its act or omissions
-38-
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, if applicable, and as provided by this Trust
Agreement. 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 8.2. To the extent that, at law or in equity, a Trustee has
duties (including fiduciary duties) and liabilities relating thereto to the
Trust or to the Securityholders, such 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 a
Trustee otherwise existing at law or in equity, are agreed by the Depositor
and the Securityholders to replace such other duties and liabilities of a
Trustee, 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 legally make payments in accordance
with the terms hereof. 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 8.2(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, if applicable.
(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
-39-
protections and limitations on liability afforded to the Property
Trustee under this Trust Agreement and the Trust Indenture Act,
if applicable;
(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 3.1 hereof and except to the extent otherwise required by
law; and
(v) the Property Trustee shall not be responsible for monitoring the
compliance by the Administrative Trustees or the Depositor with
their respective duties under this Trust Agreement, nor shall the
Property Trustee be liable for the negligence, default or
misconduct of the Administrative Trustees or the Depositor.
Section 8.3 Certain Notices.
(a) Within five Business Days after a Responsible Officer of the
Property Trustee has actual knowledge of the occurrence of any Event of
Default, the Property Trustee shall transmit, in the manner and to the
extent provided in Section 10.8 hereof, 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 8.3, 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 10.8 hereof, 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 8.4 Certain Rights of the Property Trustee.
(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 Holders are entitled to vote under
the terms of this
-40-
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 ten (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 two
(2) Business Days), it may, but shall be under no duty to, take or refrain
from taking such action not inconsistent with this Trust Agreement as it
shall deem advisable and in the best interests of the Securityholders, in
which event the Property Trustee shall have no liability except for its own
bad faith, negligence or willful misconduct;
(c) any direction or act of the Depositor or the Administrative
Trustees contemplated by this Trust Agreement shall be sufficiently
evidenced by an Officers' Certificate;
(d) whenever in the administration of this Trust Agreement, the
Property Trustee shall deem it desirable that a matter be established
before undertaking, suffering or omitting any action hereunder, the
Property Trustee (unless other evidence is herein specifically prescribed)
may, in the absence of bad faith on its part, request and conclusively rely
upon an Officer's Certificate which, upon receipt of such request, shall be
promptly delivered by the Depositor or the Administrative Trustees;
(e) the Property Trustee shall have no duty to see to any recording,
filing or registration of any instrument (including any financing or
continuation statement, or, except as provided in Section 4.5 hereof 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 may
include any of its employees) and the written advice of such counsel shall
be full and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in reliance
thereon and, in accordance with such advice, the 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
-41-
of indebtedness or other paper or document, but the Property Trustee may
make such further inquiry or investigation into such facts or matters as it
may determine in its sole discretion to be appropriate;
(i) the Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
its agents or attorneys, provided that the Property Trustee shall be
responsible for its own negligence or recklessness with respect to
selection of any agent or attorney appointed by it hereunder;
(j) whenever in the administration of this Trust Agreement the
Property Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder the Property Trustee (i) may request instructions from the
Holders of the Trust Securities which instructions may only be given by the
Holders of the same proportion in Liquidation Amount of the Trust
Securities as would be entitled to direct the Property Trustee under the
terms of the Trust Securities in respect of such remedy, right or action;
(ii) may refrain from enforcing such remedy or right or taking such other
action until such instructions are received; and (iii) shall be protected
in acting in accordance with such instructions; and
(k) except as otherwise expressly provided by this Trust Agreement,
the Property Trustee shall not be under any obligation to take any action
that is discretionary under the provisions of this Trust Agreement. No
provision of this Trust Agreement shall be deemed to impose any duty or
obligation on the Property Trustee to perform any act or acts or exercise
any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which the Property Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Property
Trustee shall be construed to be a duty.
Section 8.5 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 8.6 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 8.9 and 8.14 hereof 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 8.7 Compensation; Indemnity; Fees.
The Depositor agrees:
-42-
(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), in the case of the Property Trustee, as set
forth in a written agreement between the Depositor and the Property
Trustee;
(b) except as otherwise expressly provided herein, to reimburse the
Trustees upon request for all documented 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 Resident 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 of any kind or nature whatsoever, 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
Resident 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, other than the Property Trustee, may claim any Lien or charge
on any Trust Property as a result of any amount due and unpaid pursuant to this
Section 8.7.
Section 8.8 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, as applicable, 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 8.8, 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 8.8, it
shall resign immediately in the manner and with the effect hereinafter
specified in this Article VIII. The Property Trustee and the Resident
Trustee may be the same Person.
(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
-43-
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 Resident Trustee with respect to the
Trust Securities. The Resident Trustee shall either be (i) a natural person
who is at least 21 years of age and a resident of the State of Delaware; or
(ii) a legal entity with its principal place of business in the State of
Delaware and that otherwise meets the requirements of applicable Delaware
law that shall act through one or more persons authorized to bind such
entity.
Section 8.9 Conflicting Interests.
If the Property Trustee has or shall acquire any "conflicting interest"
within the meaning of Section 310(b) of the Trust Indenture Act, the Property
Trustee and the Holder of the Common Securities (as if it were the obligor
referred to in Section 310(b) of the Trust Indenture Act) shall in all respects
comply with the provisions of Section 310(b) of the Trust Indenture Act, if the
Trust Indenture Act is then applicable to the Indenture.
Section 8.10 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, if then applicable, 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 8.10. 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 8.10 shall either be (i) a natural
person who is at least 21 years of age and a resident of the United States;
or (ii) a legal entity with its principal place of business in the United
States that shall act through one or more persons authorized to bind such
entity.
(b) Should any written instrument from the Depositor be required by
any co-trustee or separate trustee so appointed for more fully confirming
to such co-trustee or separate trustee such property, title, right, or
power, any and all such instruments shall, conform to the terms set forth
herein.
-44-
(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 8.10, 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 8.10.
(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.
-45-
Section 8.11 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 8.12
hereof.
(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 8.12 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 Holder of
Common Securities. If a Debenture Event of Default shall have occurred and
be continuing, the Property Trustee or the Resident Trustee, or both of
them, may be removed at such time by Act of the Holders of a Majority in
Liquidation Amount of the Trust 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 Holder of the Common
Securities 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 Holder of the Common Securities, by Act of
the Holder of the Common Securities 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 8.12 hereof. If the Property Trustee
or the Resident Trustee shall resign, be removed or become incapable of
continuing to act as the Property Trustee or the Resident Trustee, as the
case may be, at a time when a Debenture Event of Default shall have
occurred and is continuing, the Holders, by Act of the Securityholders of a
Majority in Liquidation Amount of the Trust 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 8.12 hereof. 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 Holder of the Common Securities, by
Act of the Holder of the Common Securities 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 8.12 hereof. If no
successor Relevant Trustee with respect to the Trust Securities shall have
been so appointed by the Holder of the Common Securities or the Holders of
the Trust Preferred
-46-
Securities and accepted appointment in the manner required by Section 8.12
hereof, any Securityholder who has been a Securityholder of Trust
Securities for at least the past six (6) consecutive months on behalf of
himself and all others similarly situated may petition a court of competent
jurisdiction for the appointment of a successor Relevant Trustee with
respect to the Trust Securities.
(e) The Administrative Trustees shall give notice of each resignation
and each removal of a Trustee and each appointment of a successor Trustee
to all Securityholders in the manner provided in Section 10.8 hereof 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 Resident 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 the
remaining Administrative Trustees if there are at least two of them; or (b)
otherwise by the Depositor (with the successor in each case being a Person
who satisfies the eligibility requirement for Administrative Trustees or
Resident Trustee, as the case may be, set forth in Section 8.8 hereof).
Section 8.12 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.
-47-
(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 8.13 Merger, Conversion, Consolidation or Succession to Business.
Any Person into which the Property Trustee, the Resident 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 Person
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 8.14 Preferential Collection of Claims Against Depositor or Trust.
If and when the Property Trustee or the Resident 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 Resident
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, if
applicable, regarding the collection of claims against the Depositor or Trust
(or any such other obligor).
Section 8.15 Reports by Property Trustee.
(a) 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, if then
applicable, at the times and in the manner provided pursuant thereto (it
being understood that, with respect to Section 313 thereof, no such report
shall be required if none of the events set forth in such Section has
occurred during the period to which such report would relate).
(b) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Property Trustee with the Depositor.
(c) The Property Trustee covenants and agrees to transmit by mail,
first class postage prepaid, to the Holders of Trust Preferred Securities,
as their names and addresses appear on the Securities Register, any
information, documents and reports required to be transmitted by the
Company pursuant to subsection (b) of Section 8.16, as soon as practicable
after the receipt of such information from the Company.
Section 8.16 Reports to the Property Trustee.
(a) If applicable, 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 applicable, 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.
-48-
(b) The Company covenants and agrees to transmit to the Property
Trustee in the same form as filed with the Federal Reserve (i) its annual
audited consolidated financial statements within 90 days following the end
of its fiscal year and (ii) its quarterly consolidated financial statements
within 45 days after the end of the first three fiscal quarters of each
fiscal year; provided, however, that if subsequent to the date hereof, the
Company shall become subject to the reporting obligations under Section
13(a) or Section 15(d) of the Exchange Act, the Company shall instead
transmit to the Property Trustee the information, documents and reports the
Company is required to file with the Securities and Exchange Commission
pursuant to Section 13(a) or Section 15(d) of the Exchange Act.
Section 8.17 Evidence of Compliance with Conditions Precedent.
If at any time after the date hereof the Indenture is required to be
qualified under the Trust Indenture Act, each of the Depositor and the
Administrative Trustees on behalf of the Trust shall provide to the Property
Trustee such evidence of compliance with any 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 8.18 Delegation of Power.
(a) Any Administrative Trustee may, by power of attorney consistent
with applicable law, delegate to any other natural person over the age of
21 his or her power for the purpose of executing any documents contemplated
in Section 2.7(a) hereof; 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 this
Trust Agreement, as set forth herein.
Section 8.19 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.
-49-
ARTICLE IX
TERMINATION, LIQUIDATION AND MERGER
Section 9.1 Termination Upon Expiration Date.
Unless earlier dissolved, the Trust shall automatically dissolve on the
date which is one month from receipt of final payment due under the Indenture
(the "Expiration Date") and thereafter shall distribute the Trust Property in
accordance with Section 9.4 hereof.
Section 9.2 Early Termination.
The first to occur of any of the following events is an "Early Termination
Event", at which time the Trust shall dissolve and commence winding up its
affairs:"
(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, subject to Depositor having received prior
approval of the Board of Governors of the Federal Reserve System if so
required under applicable guidelines, policies or regulations thereof) to
dissolve the Trust and distribute the Debentures to the Securityholders in
exchange for the Trust Securities in accordance with Section 9.4 hereof;
(c) the redemption of all of the Trust Preferred Securities in
connection with the redemption of all of the Debentures (whether upon a
Debenture Redemption Date or the maturity of the Debentures); or
(d) the existence of an order for dissolution of the Trust shall have
been entered by a court of competent jurisdiction.
Section 9.3 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 9.4 hereof, or upon the
redemption of all of the Trust Securities pursuant to Section 4.2 hereof, 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 Trustees under the Delaware Business Trust Act.
Section 9.4 Liquidation.
(a) If an Early Termination Event specified in clause (a), (b), or (d)
of Section 9.2 occurs or upon the Expiration Date, the Trust shall be
liquidated by the Trustees in
-50-
accordance with their respective duties hereunder as provided herein 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 9.4(d). Notice of liquidation 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 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 9.4(d) applies, receive a Liquidation
Distribution, as the Administrative Trustees or the Property
Trustee shall in good faith deem appropriate.
(b) Except where Section 9.2(c) or 9.4(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 9.2(c) or 9.4(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) any Trust Securities Certificates not so surrendered for
exchange shall be deemed to represent a Like Amount of Debentures, accruing
interest at the rate provided for in the Debentures from the last
Distribution Date on which a Distribution was made on such Trust Securities
Certificates until such certificates are so surrendered (and until such
certificates are so surrendered, no payments of interest or principal shall
be made to Holders of Trust Securities Certificates with respect to such
Debentures); and (iv) 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 9.4, 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 in good faith 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
-51-
Trustee in such manner as the Property Trustee determines in good faith. In
such event, on the date of the dissolution 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, 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 pro rata
(determined as aforesaid) with Holders of Trust Preferred Securities,
except that, if a Debenture Event of Default has occurred and is
continuing, the Trust Preferred Securities shall have a priority over the
Common Securities.
Section 9.5 Mergers, Consolidations, Amalgamations or Replacements of the
Trust.
The Trust may not merge with or into, consolidate, amalgamate, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other Person, except pursuant
to this Section 9.5. At the request of the Depositor, with the consent of the
Administrative Trustees and without the consent of the Holders of the Trust
Preferred Securities, the Property Trustee or the Resident 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:
(a) such successor entity either:
(i) expressly assumes all of the obligations of the Trust with
respect to the Trust Preferred Securities; or
(ii) substitutes for the Trust Preferred Securities other securities
having substantially the same terms as the Trust Preferred
Securities (the "Successor Securities") so long as the Successor
Securities rank the same as the Trust Preferred Securities rank
in priority with respect to distributions and payments upon
liquidation, redemption and otherwise.
(b) 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;
(c) 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 Trust
Preferred Securities are then listed or quoted, if any;
-52-
(d) such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease does not adversely affect the rights, preferences and
privileges of the Holders of the Trust Preferred Securities (including any
Successor Securities) in any material respect;
(e) such successor entity has a purpose substantially identical to
that of the Trust;
(f) prior to such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease, the Depositor has received an Opinion of
Counsel to the effect that:
(i) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the
rights, preferences and privileges of the Holders of the Trust
Preferred Securities (including any Successor Securities) in any
material respect; and
(ii) following such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease, neither the Trust nor such
successor entity shall be required to register as an "investment
company" under the Investment Company Act; and
(g) 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 Preferred
Securities Guarantee.
Notwithstanding the foregoing, the Trust shall not, except with the consent of
Holders of 100% in Liquidation Amount of the Trust 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 10.1 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.
-53-
Section 10.2 Amendment.
(a) This Trust Agreement may be amended from time to time by the
Administrative Trustees and the Depositor, without the consent of any
Securityholders, the Property Trustee or the Resident Trustee, (i) as
provided in Section 8.12 hereof with respect to acceptance of appointment
by a successor Trustee; (ii) to cure any ambiguity, correct or supplement
any provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this 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,
the Property Trustee and the Resident Trustee.
(b) Except as provided in Section 6.1(c) or Section 10.2(c) hereof,
any provision of this Trust Agreement may be amended by the Administrative
Trustees and the Depositor (i) with the consent of Securityholders
representing not less than a majority (based upon Liquidation Amounts) of
the Trust Securities then Outstanding; and (ii) upon receipt by the
Trustees of an Opinion of Counsel to the effect that such amendment or the
exercise of any power granted to the Trustees in accordance with such
amendment shall not affect the Trust's status as a grantor trust for United
States federal income tax purposes or the Trust's exemption from status of
an "investment company" under the Investment Company Act.
(c) In addition to and notwithstanding any other provision in this
Trust Agreement, without the consent of each affected Securityholder (such
consent being obtained in accordance with Section 6.3 or Section 6.6
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 6.3 or 6.6 hereof), this
paragraph (c) of this Section 10.2 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.
-54-
(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) Notwithstanding any other provision of this Trust Agreement,
without the consent of the Property Trustee and/or the Resident Trustee, as
applicable, this Trust Agreement may not be amended in any manner, and
neither the Property Trustee nor the Resident Trustee shall be required to
enter into any amendment to this Trust Agreement, which affects the rights,
privileges, powers, duties, obligations or immunities of the Property
Trustee or the Resident Trustee under this Trust Agreement or the Trust
Securities. The Property Trustee shall be entitled to receive an Opinion of
Counsel and an Officers' Certificate stating that any proposed amendment to
this Trust Agreement is in compliance with this Trust Agreement.
Section 10.3 Severability.
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 10.4 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
THEREOF). PROVIDED, HOWEVER, THAT THERE SHALL NOT BE APPLICABLE TO THE PARTIES
HEREUNDER OR THIS TRUST AGREEMENT ANY PROVISION OF THE LAWS (COMMON OR
STATUTORY) OR THE STATE OF DELAWARE PERTAINING TO TRUSTS THAT RELATE TO OR
REGULATE, IN A MANNER INCONSISTENT WITH THE TERMS HEREOF, (A) THE FILING WITH
ANY COURT OR GOVERNMENTAL BODY OR AGENCY OF TRUSTEE ACCOUNTS OR SCHEDULES OF
TRUSTEE FEES AND CHARGES, (B) AFFIRMATIVE REQUIREMENTS TO POST BONDS FOR
TRUSTEES, OFFICERS, AGENTS OR EMPLOYEES OF A TRUST, (C) THE NECESSITY FOR
OBTAINING COURT OR OTHER GOVERNMENTAL APPROVAL CONCERNING THE ACQUISITION,
HOLDING OR DISPOSITION OF REAL OR PERSONAL PROPERTY, (D) FEES OR OTHER SUMS
PAYABLE TO TRUSTEES, OFFICERS, AGENTS OR EMPLOYEES OF A TRUST, (E) THE
ALLOCATION OF RECEIPTS AND EXPENDITURES TO INCOME OR PRINCIPAL (F) RESTRICTIONS
OR LIMITATIONS ON THE PERMISSIBLE NATURE, AMOUNT OR CONCENTRATION OF TRUST
INVESTMENTS OR REQUIREMENTS RELATING TO THE TITLING, STORAGE OR OTHER MANNER OF
HOLDING OR INVESTING TRUST ASSETS OR (G) THE ESTABLISHMENT OF
-55-
FIDUCIARY OR OTHER STANDARDS OF RESPONSIBILITY OR LIMITATIONS ON THE ACTS OR
POWERS OF TRUSTEES THAT ARE INCONSISTENT WITH THE LIMITATIONS OR AUTHORITIES AND
POWERS OF THE TRUSTEES HEREUNDER AS SET FORTH OR REFERENCED IN THIS TRUST
AGREEMENT. SECTION 3540 OF TITLE 12 OF THE DELAWARE CODE SHALL NOT APPLY TO THE
TRUST. THE PARTIES HERETO HEREBY CONSENT TO (i) THE NON-EXCLUSIVE JURISDICTION
OF THE COURTS OF THE STATE OF DELAWARE AND (ii) SERVICE OF PROCESS BY MAIL IN
ACCORDANCE WITH SECTION 10.8 HEREOF.
Section 10.5 Payments Due on Non-Business Day.
If the date fixed for any payment on any Trust Security shall be a day that
is not a Business Day, then such payment need not be made on such date but may
be made on the next succeeding day which is a Business Day, except that, if such
Business Day is in the next succeeding calendar year, such payment shall be made
on the immediately preceding Business Day (and without any reduction of interest
or any other payment in respect of any such acceleration), in each case with the
same force and effect as though made on the date fixed for such payment, and no
distribution shall accumulate thereon for the period after such date.
Section 10.6 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 10.7 Headings.
The Article and Section headings are for convenience only and shall not
affect the construction of this Trust Agreement.
Section 10.8 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 Holder
of the Trust Preferred Securities, to such Holder of the Trust Preferred
Securities as such Securityholder's name and address may appear on the
Securities Register; and (b) in the case of the Holder of the Common Securities
or the Depositor, to Enterprise Financial Services Corp., 1281 N. Warson Road
St. Louis, MO 63132 , Attention: Chief Executive Officer, facsimile no.:
(314) 812-1576. Any notice to Holders of the Trust Preferred Securities 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
-56-
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 Resident Trustee, 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 Wells Fargo Bank,
National Association, 919 Market Street, Suite 700
Wilmington, Delaware 19801 , Attention: Corporate Trust Administration; (b)
with respect to the Resident Trustee, to Wells Fargo Delaware Trust Company at
919 Market Street, Suite 700
Wilmington, Delaware 19801; and (c) with respect to the Trust or the
Administrative Trustees, to them at the address above for notices to the
Depositor, marked "Attention: Administrative Trustees of Capital Trust." Such
notice, demand or other communication to or upon the Trust, the Property
Trustee, the Resident Trustee or the Administrative Trustees shall be deemed to
have been sufficiently given or made only upon actual receipt of the writing by
the Trust, the Property Trustee, the Resident Trustee or the Administrative
Trustees.
Section 10.9 Agreement not to Petition.
Each of the Trustees and the Depositor agrees for the benefit of the
Securityholders that, until at least one year and one day after the Trust has
been terminated in accordance with Article IX, they shall not file, or join in
the filing of, a petition against the Trust under any bankruptcy, insolvency,
reorganization or other similar law (including, without limitation, the United
States Bankruptcy Code of 1978, as amended, collectively, "Bankruptcy Laws") or
otherwise join in the commencement of any proceeding against the Trust under any
Bankruptcy Law. In the event the Depositor or any of the Trustees takes action
in violation of this Section 10.9, 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 or such
Trustee against the Trust or the commencement of such action and raise the
defense that the Depositor or such Trustee has agreed in writing not to take
such action and should be estopped and precluded therefrom. The provisions of
this Section 10.9 shall survive the termination of this Trust Agreement.
Section 10.10 Applicability of Trust Indenture Act; Conflict.
(a) Unless and until the Indenture is required to be qualified under
the Trust Indenture Act so that the provisions thereof are applicable, (i)
the provisions of the Trust Indenture Act do not apply to this Trust
Agreement and are not given effect; and (ii) notwithstanding any other
provision of this Trust Agreement (including without limitation Sections
8.2(c), 8.4(b) and (i), 8.7(b) and 8.7(c) hereof), no Trustee shall be
liable for its own simple negligence, but shall only be liable for its own
gross negligence.
(b) The Property Trustee shall be the only Trustee which is a trustee
for the purposes of the Trust Indenture Act.
-57-
(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, and the
Trust Indenture Act is then applicable to this Trust Agreement, 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.
The application of the Trust Indenture Act to this Trust Agreement shall
not affect the nature of the Trust Securities as equity securities
representing undivided beneficial interests in the assets of the Trust.
Section 10.11 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. WITHOUT LIMITING THE FOREGOING, BY
ACCEPTANCE OF A TRUST PREFERRED SECURITY, EACH HOLDER THEREOF SHALL BE DEEMED TO
HAVE AGREED TO TREAT, FOR ALL UNITED STATES FEDERAL INCOME TAX AND FINANCIAL
ACCOUNTING PURPOSES, THE DEBENTURES AS INDEBTEDNESS OF THE COMPANY AND THE TRUST
PREFERRED SECURITIES AS EVIDENCING AN UNDIVIDED PREFERRED BENEFICIAL OWNERSHIP
INTEREST IN THE DEBENTURES.
[Remainder of Page Left Intentionally Blank]
-58-
IN WITNESS WHEREOF, this Trust Agreement is dated as set forth below and
effective as of the day and year first above written.
Enterprise Financial Services Corp.
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
Date:
-------------------------------------
Wells Fargo Bank, National Association, as
Property Trustee
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
Date:
-------------------------------------
Wells Fargo Delaware Trust Company, as
Resident Trustee
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
Date:
-------------------------------------
------------------------------------------
, As Administrative
----------------------
Trustee
-59-
------------------------------------------
, As Administrative
----------------------
Trustee
------------------------------------------
, As Administrative
----------------------
Trustee
-60-
EXHIBIT A
FORM OF CERTIFICATE OF TRUST
OF
EFSC CAPITAL TRUST I
A-1
EXHIBIT B
FORM OF COMMON SECURITY CERTIFICATE
B-1
EXHIBIT C
AGREEMENT AS TO EXPENSES AND LIABILITIES
C-1
EXHIBIT D
FORM OF FLOATING RATE CUMULATIVE TRUST PREFERRED
SECURITY CERTIFICATE
D-1
EXHIBIT E
FORM OF TRANSFEREE LETTER OF REPRESENTATIONS
E-1
EXHIBIT F
FORM OF TRANSFEROR LETTER OF REPRESENTATIONS
F-1