SECOND BANCORP CAPITAL TRUST I
AMENDED AND RESTATED
TRUST AGREEMENT
AMONG
SECOND BANCORP INCORPORATED, AS DEPOSITOR,
WILMINGTON TRUST COMPANY, AS PROPERTY TRUSTEE,
WILMINGTON TRUST COMPANY, AS DELAWARE TRUSTEE,
AND
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
DATED AS OF SEPTEMBER 28, 2001
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINED TERMS.....................................................................................................1
Section 101. Definitions............................................................................1
ARTICLE II
ESTABLISHMENT OF THE TRUST.......................................................................................10
Section 201. Name..................................................................................10
Section 202. Office of the Delaware Trustee; Principal Place of Business...........................10
Section 203. Initial Contribution of Trust Property; Organizational Expenses.......................10
Section 204. Issuance of the Preferred Securities..................................................10
Section 205. Issuance of the Common Securities; Subscription and Purchase of Debentures............11
Section 206. Declaration of Trust..................................................................11
Section 207. Authorization to Enter into Certain Transactions......................................12
Section 208. Assets of Trust.......................................................................16
Section 209. Title to Trust Property...............................................................16
ARTICLE III
PAYMENT ACCOUNT..................................................................................................16
Section 301. Payment Account.......................................................................16
ARTICLE IV
DISTRIBUTIONS; REDEMPTION........................................................................................16
Section 401. Distributions.........................................................................16
Section 402. Redemption............................................................................17
Section 403. Subordination of Common Securities....................................................20
Section 404. Payment Procedures....................................................................21
Section 405. Tax Returns and Reports...............................................................21
Section 406. Payment of Taxes, Duties, etc. of the Trust..........................................21
Section 407. Payments Under Indenture..............................................................22
ARTICLE V
TRUST SECURITIES CERTIFICATES....................................................................................22
Section 501. Initial Ownership.....................................................................22
Section 502. The Trust Securities Certificates.....................................................22
Section 503. Execution, Authentication and Delivery of Trust Securities Certificates...............22
Section 503A. Global Preferred Security.............................................................23
Section 504. Registration of Transfer and Exchange of Preferred Securities Certificates............24
Section 505. Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates....................26
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Section 506. Persons Deemed Securityholders........................................................26
Section 507. Access to List of Securityholders' Names and Addresses................................26
Section 508. Maintenance of Office or Agency.......................................................27
Section 509. Appointment of Paying Agent...........................................................27
Section 510. Ownership of Common Securities by Depositor...........................................28
Section 511. Trust Securities Certificates.........................................................28
Section 512. Notices to Clearing Agency............................................................28
Section 513. Rights of Securityholders.............................................................28
ARTICLE VI
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING........................................................................29
Section 601. Limitations on Voting Rights..........................................................29
Section 602. Notice of Meetings....................................................................30
Section 603. Meetings of Preferred Securityholders.................................................31
Section 604. Voting Rights.........................................................................31
Section 605. Proxies, etc..........................................................................31
Section 606. Securityholder Action by Written Consent..............................................32
Section 607. Record Date for Voting and Other Purposes.............................................32
Section 608. Acts of Securityholders...............................................................32
Section 609. Inspection of Records.................................................................33
ARTICLE VII
REPRESENTATIONS AND WARRANTIES...................................................................................33
Section 701. Representations and Warranties of the Bank and the Property Trustee...................33
Section 702. Representations and Warranties of the Delaware Bank and the Delaware Trustee..........35
Section 703. Representations and Warranties of Depositor...........................................36
ARTICLE VIII
TRUSTEES.........................................................................................................36
Section 801. Certain Duties and Responsibilities...................................................36
Section 802. Certain Notices.......................................................................38
Section 803. Certain Rights of Property Trustee....................................................38
Section 804. Not Responsible for Recitals or Issuance of Securities................................41
Section 805. May Hold Securities...................................................................41
Section 806. Compensation; Indemnity; Fees.........................................................41
Section 807. Corporate Property Trustee Required; Eligibility of Trustees..........................42
Section 808. Conflicting Interests.................................................................43
Section 809. Co-Trustees and Separate Trustee......................................................43
Section 810. Resignation and Removal; Appointment of Successor.....................................45
Section 811. Acceptance of Appointment by Successor................................................46
Section 812. Merger, Conversion, Consolidation or Succession to Business...........................47
Section 813. Preferential Collection of Claims Against Depositor or Trust..........................47
Section 814. Reports by Property Trustee...........................................................47
Section 815. Reports to the Property Trustee.......................................................48
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Section 816. Evidence of Compliance with Conditions Precedent......................................48
Section 817. Number of Trustees....................................................................48
Section 818. Delegation of Power...................................................................48
Section 819. Voting................................................................................49
ARTICLE IX
TERMINATION, LIQUIDATION AND MERGER..............................................................................49
Section 901. Termination Upon Expiration Date......................................................49
Section 902. Early Termination.....................................................................49
Section 903. Termination...........................................................................50
Section 904. Liquidation...........................................................................50
Section 905. Mergers, Consolidations, Conversions, Amalgamations or Replacements of the
Trust.................................................................................52
ARTICLE X
MISCELLANEOUS PROVISIONS.........................................................................................53
Section 1001. Limitation of Rights of Securityholders...............................................53
Section 1002. Amendment.............................................................................53
Section 1003. Separability..........................................................................55
Section 1004. Governing Law.........................................................................55
Section 1005. Payments Due on Non-Business Day......................................................55
Section 1006. Successors............................................................................55
Section 1007. Headings..............................................................................55
Section 1008. Reports, Notices and Demands..........................................................55
Section 1009. Agreement Not to Petition.............................................................56
Section 1010. Trust Indenture Act; Conflict with Trust Indenture Act................................56
Section 1011. Acceptance of Terms of Trust Agreement, Guarantee and Indenture.......................57
Section 1012. Counterparts..........................................................................57
Section 1013. Exchange Act Obligations..............................................................57
EXHIBITS
Exhibit A Certificate of Trust
Exhibit B Form of Common Securities Certificate
Exhibit C Form of Expense Agreement
Exhibit D Form of Preferred Securities Certificate
Exhibit E Form of Preferred Securities Certificate Authentication
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CROSS-REFERENCE TABLE
Section of
Trust Indenture Act Section of
of 1939, as amended Amended and Restated Trust Agreement
310(a)(1)...................................................................807
310(a)(2)...................................................................807
310(a)(3)...................................................................807
310(a)(4)............................................................207(a)(ii)
310(b)......................................................................808
311(a)......................................................................813
311(b)......................................................................813
312(a)......................................................................507
312(b)......................................................................507
312(c)......................................................................507
313(a)...................................................................814(a)
313(a)(4)................................................................814(b)
313(b)...................................................................814(b)
313(c).....................................................................1008
313(d)...................................................................814(c)
314(a)......................................................................815
314(b)...........................................................Not Applicable
314(c)(1)...................................................................816
314(c)(2)...................................................................816
314(c)(3)........................................................Not Applicable
314(d)...........................................................Not Applicable
314(e).................................................................101, 816
315(a)...........................................................801(a), 803(a)
315(b)................................................................802, 1008
315(c)...................................................................801(a)
315(d).................................................................801, 803
316(a)(2)........................................................Not Applicable
316(b)...........................................................Not Applicable
316(c)......................................................................607
317(a)(1)........................................................Not Applicable
317(a)(2)........................................................Not Applicable
317(b)......................................................................509
318(a).....................................................................1010
Note: This Cross-Reference Table does not constitute part of this Agreement
and shall not affect the interpretation of any of its terms or
provisions.
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AMENDED AND RESTATED TRUST AGREEMENT
AMENDED AND RESTATED TRUST AGREEMENT, dated as of September 28, 2001,
among (i) SECOND BANCORP INCORPORATED, an Ohio corporation (including any
successors or assigns, the "Depositor"), (ii) WILMINGTON TRUST COMPANY, a
Delaware banking corporation duly organized and existing under the laws of the
State of Delaware, as property trustee (the "Property Trustee" and, in its
separate corporate capacity and not in its capacity as Property Trustee, the
"Bank"), (iii) WILMINGTON TRUST COMPANY, a Delaware banking corporation duly
organized and existing under the laws of the State of Delaware, as Delaware
trustee (the "Delaware Trustee," and, in its separate corporate capacity and not
in its capacity as Delaware Trustee, the "Delaware Bank") (iv) R.L. (RICK)
BLOSSOM, an individual, DAVID L. KELLERMAN, an individual, and CHRISTOPHER
STANITZ, an individual, each of whose address is c/o Company (each an
"Administrative Trustee" and collectively the "Administrative Trustees") (the
Property Trustee, the Delaware Trustee and the Administrative Trustees referred
to collectively as the "Trustees"), and (v) THE SEVERAL HOLDERS (as hereinafter
defined).
RECITALS
WHEREAS, the Depositor, the Delaware Trustee, and R.L. (RICK) BLOSSOM,
DAVID L. KELLERMAN and CHRISTOPHER STANITZ, each as an Administrative Trustee,
have heretofore duly declared and established a business trust pursuant to the
Delaware Business Trust Act by the entering into of that certain Trust
Agreement, dated as of August 29, 2001 (the "Original Trust Agreement"), and
by the execution and filing by the Delaware Trustee, the Depositor and the
Administrative Trustees with the Secretary of State of the State of Delaware
of the Certificate of Trust, filed on August 29, 2001, the form of which is
attached as EXHIBIT A; and
WHEREAS, the Depositor, the Delaware Trustee, the Property Trustee and
the Administrative Trustees desire to amend and restate the Original Trust
Agreement in its entirety as set forth herein to provide for, among other
things, (i) the issuance of the Common Securities (as defined herein) by the
Trust (as defined herein) to the Depositor; (ii) the issuance and sale of the
Preferred Securities (as defined herein) by the Trust pursuant to the
Underwriting Agreement (as defined herein); (iii) the acquisition by the Trust
from the Depositor of all of the right, title and interest in the Debentures (as
defined herein); and (iv) the appointment of the Trustees;
NOW THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each party, for the benefit of the
other parties and for the benefit of the Securityholders (as defined herein),
hereby amends and restates the Original Trust Agreement in its entirety and
agrees as follows:
I DEFINED TERMS
101 Definitions.
For all purposes of this Trust Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article I have the meanings
assigned to them in this Article I and include the
plural as well as the singular;
(b) all other terms used herein that are defined in the
Trust Indenture Act, either directly or by reference
therein, have the meanings assigned to them therein;
(c) unless the context otherwise requires, any reference
to an "Article" or a "Section" refers to an Article
or a Section, as the case may be, of this Trust
Agreement; and
(d) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Trust
Agreement as a whole and not to any particular
Article, Section or other subdivision.
"Act" has the meaning specified in Section 608.
"Additional Amount" means, with respect to Trust Securities of a given
Liquidation Amount and/or a given period, the amount of additional interest
accrued on interest in arrears and paid by the Depositor on a Like Amount of
Debentures for such period, including Compounded Interest as defined under the
Indenture.
"Additional Interest" has the meaning specified in Section 1.1 of the
Indenture.
"Administrative Trustee" means each of R.L. Blossom, David L. Kellerman
and Christopher Stanitz, solely in his or her capacity as Administrative Trustee
of the Trust formed and continued hereunder and not in his or her individual
capacity, or such Administrative Trustee's successor in interest in such
capacity, or any successor trustee appointed as herein provided.
"Affiliate" means, with respect to a specified Person, (a) any Person
directly or indirectly owning, controlling or holding with power to vote 10% or
more of the outstanding voting securities or other ownership interests of the
specified Person; (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 Preferred Securities appointed by the Property Trustee pursuant to Section
503.
"Bank" has the meaning specified in the Preamble to this Trust
Agreement.
"Bankruptcy Event" means, with respect to any Person:
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(a) the entry of a decree or order by a court having jurisdiction in
the premises adjudging such Person a bankrupt or insolvent, or approving as
properly filed a petition seeking liquidation or reorganization of or in respect
of such Person under the United States Bankruptcy Code of 1978, as amended, or
any other similar applicable federal or state law, and the continuance of any
such decree or order unvacated and unstayed for a period of 90 days; or the
commencement of an involuntary case under the United States Bankruptcy Code of
1978, as amended, in respect of such Person, which shall continue undismissed
for a period of 90 days or entry of an order for relief in such case; or the
entry of a decree or order of a court having jurisdiction in the premises for
the appointment on the ground of insolvency or bankruptcy of a receiver,
custodian, liquidator, trustee or assignee in bankruptcy or insolvency of such
Person or of its property, or for the winding up or liquidation of its affairs,
and such decree or order shall have remained in force unvacated and unstayed for
a period of 90 days; or
(b) the institution by such Person of proceedings to be adjudicated a
voluntary bankrupt, or the consent by such Person to the filing of a bankruptcy
proceeding against it, or the filing by such Person of a petition or answer or
consent seeking liquidation or reorganization under the United States Bankruptcy
Code of 1978, as amended, or other similar applicable federal or state law, or
the consent by such Person to the filing of any such petition or to the
appointment on the ground of insolvency or bankruptcy of a receiver or custodian
or liquidator or trustee or assignee in bankruptcy or insolvency of such Person
or of its property, or shall make a general assignment for the benefit of
creditors.
"Bankruptcy Laws" has the meaning specified in Section 1009.
"Board Resolution" means a copy of a resolution certified by the
Secretary of the Depositor to have been duly adopted by the Depositor's Board of
Directors, or such committee of the Board of Directors or officers of the
Depositor to which authority to act on behalf of the Board of Directors has been
delegated, and to be in full force and effect on the date of such certification,
and delivered to the appropriate Trustee.
"Business Day" means a day other than a Saturday or Sunday, a day on
which banking institutions in The City of New York, Wilmington, Delaware, or
Warren, Ohio, are authorized or required by law, executive order or regulation
to remain closed, or a day on which the Property Trustee's Corporate Trust
Office or the Corporate Trust Office of the Debenture Trustee is closed for
business.
"Certificate Depositary Agreement" means the agreement among Depositor,
Trust and DTC, as the initial Clearing Agency, dated as of the Closing Date,
as the same may be amended and supplemented from time to time.
"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."
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"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended. DTC shall be the initial Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank or other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Date" means the date of execution and delivery of this Trust
Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act, or, if at any time after
the execution of this instrument such Commission is not existing and performing
the duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Security" means an undivided beneficial interest in the assets
of the Trust, having a Liquidation Amount of $10 and having the rights provided
therefor in this Trust Agreement, including the right to receive Distributions
and a Liquidation Distribution as provided herein.
"Common Securities Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached as EXHIBIT B.
"Company" means Second Bancorp Incorporated.
"Corporate Trust Office" means the office at which, at any particular
time, the corporate trust business of the Property Trustee or the Debenture
Trustee, as the case may be, shall be principally administered, which office at
the date hereof, in each such case, is located at Rodney Square North, 1100
North Market Street, Wilmington, Delaware 19890-0001, Attn: Corporate Trust
Administration.
"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 Wilmington Trust Company, a state chartered
trust company organized under the laws of the State of Delaware and any
successor thereto, as trustee under the Indenture.
"Debentures" means up to $32,989,700 aggregate principal amount of the
Depositor's 9.00% Subordinated Debentures due 2031, issued pursuant to the
Indenture.
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"Definitive Preferred Securities Certificates" means Preferred
Securities Certificates issued in certified, fully registered form as provided
in Section 513.
"Delaware Bank" has the meaning specified in the Preamble to this Trust
Agreement.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Delaware Code Sections 3801 et seq. as it may be amended from
time to time.
"Delaware Trustee" means the commercial bank or trust company
identified as the "Delaware Trustee" in the Preamble to this Trust Agreement
solely in its capacity as Delaware Trustee of the Trust formed and continued
hereunder and not in its individual capacity, or its successor in interest in
such capacity, or any successor trustee appointed as herein provided.
"Depositary" means DTC or any successor thereto.
"Depositor" has the meaning specified in the Preamble to this Trust
Agreement.
"Distribution Date" has the meaning specified in Section 401(a).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 401.
"DTC" means The Depository Trust Company.
"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
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.
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"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Expense Agreement" means the Agreement as to Expenses and Liabilities
between the Depositor and the Trust, substantially in the form attached as
EXHIBIT C, as amended from time to time.
"Expiration Date" has the meaning specified in Section 901.
"Extended Interest Payment Period" has the meaning specified in Section
4.1 of the Indenture.
"Global Preferred Securities Certificate" means a Preferred Securities
Certificate evidencing ownership of Global Preferred Securities.
"Global Preferred Security" means a Preferred Security, the ownership
and transfer of which shall be made through book entries by a Clearing Agency as
described herein.
"Guarantee" means the Preferred Securities Guarantee Agreement executed
and delivered by the Depositor and Wilmington Trust Company, as trustee,
contemporaneously with the execution and delivery of this Trust Agreement, for
the benefit of the holders of the Preferred Securities, as amended from time to
time.
"Indenture" means the Indenture, dated as of September 28, 2001,
between the Depositor and the Debenture Trustee, as trustee, as amended or
supplemented from time to time.
"Investment Company Act," means the Investment Company Act of 1940, as
amended, as in effect at the date of execution of this instrument.
"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 tax and securities law practice, to the effect that, as a result of the
occurrence of a change in law or regulation or a change in interpretation or
application of law or regulation by any legislative body, court, governmental
agency or regulatory authority (a "Change in 1940 Act Law"), the Trust is or
shall be considered an "investment company" that is required to be registered
under the Investment Company Act, which Change in 1940 Act Law becomes effective
on or after the date of original issuance of the Preferred Securities under this
Trust Agreement, provided, however, that the Depositor or 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 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
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(b) with respect to a distribution of Debentures to Holders of Trust Securities
in connection with a termination or liquidation of the Trust, Debentures having
a principal amount equal to the Liquidation Amount of the Trust Securities of
the Holder to whom such Debentures are distributed. Each Debenture distributed
pursuant to clause (b) above shall carry with it accrued interest in an amount
equal to the accrued and unpaid interest then due on such Debentures.
"Liquidation Amount" means the stated amount of $10 per Trust Security.
"Liquidation Date" means the date on which Debentures are to be
distributed to Holders of Trust Securities in connection with a termination and
liquidation of the Trust pursuant to Section 904(a).
"Liquidation Distribution" has the meaning specified in Section 904(d).
"Officers' Certificate" means a certificate signed by the President or
an Executive Vice President and by the Chief Financial Officer or the Treasurer
or the Secretary, of the Depositor, and delivered to the appropriate Trustee.
One of the officers signing an Officers' Certificate given pursuant to Section
816 shall be the principal executive, financial or accounting officer of the
Depositor. Any Officers' Certificate delivered with respect to compliance with a
condition or covenant provided for in this Trust Agreement shall include:
(a) a statement that each officer signing the Officers' Certificate has
read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers' Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Opinion of Counsel" means an opinion in writing of independent,
outside legal counsel for the Trust, the Property Trustee, the Delaware 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 Preferred Securities, means,
as of the date of determination, all Preferred Securities theretofore executed
and delivered under this Trust Agreement, except:
(a) Preferred Securities theretofore canceled by the Property Trustee
or delivered to the Property Trustee for cancellation;
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(b) Preferred Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Property Trustee or any
Paying Agent for the Holders of such Preferred Securities; provided that, if
such Preferred Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Trust Agreement; and
(c) Preferred Securities which have been paid or in exchange for or in
lieu of which other Preferred Securities have been executed and delivered
pursuant to Sections 504, 505, 511 and 513; provided, however, that in
determining whether the Holders of the requisite Liquidation Amount of the
Outstanding Preferred Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Preferred Securities owned by
the Depositor, any Trustee or any Affiliate of the Depositor or any Trustee
shall be disregarded and deemed not to be Outstanding, except that (a) in
determining whether any Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Preferred Securities that such Trustee knows to be so owned shall be so
disregarded; and (b) the foregoing shall not apply at any time when all of the
outstanding Preferred Securities are owned by the Depositor, one or more of the
Trustees and/or any such Affiliate. Preferred Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Administrative Trustees the pledgee's
right so to act with respect to such Preferred Securities and the pledgee is not
the Depositor or any other Obligor upon the Preferred Securities or a Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Depositor or any Affiliate of the Depositor.
"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 509 and shall initially be the Bank.
"Payment Account" means a segregated non-interest-bearing corporate
trust account maintained by the Property Trustee with the Bank in its trust
department for the benefit of the Securityholders in which all amounts paid in
respect of the Debentures shall be held and from which the Property Trustee
shall make payments to the Securityholders in accordance with Sections 401 and
402.
"Person" means any individual, corporation, partnership, joint venture,
trust, limited liability company or corporation, unincorporated organization or
government or any agency or political subdivision thereof.
"Preferred Security" means an undivided beneficial interest in the
assets of the Trust, having a Liquidation Amount of $10 and having the rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Preferred Securities Certificate", means a certificate evidencing
ownership of Preferred Securities, substantially in the form attached as EXHIBIT
D.
"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
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capacity, or its successor in interest in such capacity, or any successor
property trustee appointed as herein provided.
"Redemption Date" means, with respect to any Trust Security to be
redeemed, the date fixed for such redemption by or pursuant to this Trust
Agreement; provided that each Debenture Redemption Date and the stated maturity
of the Debentures shall be a Redemption Date for a Like Amount of Trust
Securities.
"Redemption Price" means, with respect to any Trust Security, the
Liquidation Amount of such Trust Security, plus accumulated and unpaid
Distributions to the Redemption Date allocated on a pro rata basis (based on
Liquidation Amounts) among the Trust Securities.
"Relevant Trustee" shall have the meaning specified in Section 810.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 504.
"Securityholder" or "Holder" means a Person in whose name a Trust
Security 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.
"Trust" means the Delaware business trust created and continued hereby
and identified on the cover page to this Trust Agreement.
"Trust Agreement" means this Amended and Restated Trust Agreement, as
the same may be modified, amended or supplemented in accordance with the
applicable provisions hereof, including all exhibits hereto, including, for all
purposes of this Trust Agreement and any such modification, amendment or
supplement, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this Trust Agreement and any such modification, amendment or
supplement, respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, as in force at the date as of which this instrument was executed;
provided, however, that in the event the Trust Indenture Act of 1939, as
amended, is amended after such date, "Trust Indenture Act" means, to the extent
required by any such amendment, the Trust Indenture Act of 1939 as so amended.
"Trust Property" means (a) the Debentures; (b) the rights of the
Property Trustee under the Guarantee; (c) any cash on deposit in, or owing to,
the Payment Account; and (d) all proceeds and rights in respect of the foregoing
and any other property and assets for the time being held or deemed to be held
by the Property Trustee pursuant to the trusts of this Trust Agreement.
"Trust Security" means any one of the Common Securities or the
Preferred Securities.
"Trust Securities Certificate" means any one of the Common Securities
Certificates or the Preferred Securities Certificates.
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"Trustees" means, collectively, the Property Trustee, the Delaware
Trustee and the Administrative Trustees.
"Underwriting Agreement" means the Underwriting Agreement, dated as of
September 25, 2001, among the Trust, the Depositor and the Underwriters named
therein.
II ESTABLISHMENT OF THE TRUST
201 Name.
The Trust continued hereby shall be known as "Second Bancorp 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 may engage in the transactions
contemplated hereby, make and execute contracts and other instruments on behalf
of the Trust and sue and be sued.
202 Office of the Delaware Trustee; Principal Place of Business.
The address of the Delaware Trustee in the State of Delaware is c/o
Wilmington Trust Company, Rodney Square North, 1100 North Market Street,
Wilmington, Delaware 19890-0001, Attn: Corporate Trust Administration, or such
other address in the State of Delaware as the Delaware Trustee may designate by
written notice to the Securityholders and the Depositor. The principal executive
office of the Trust is c/o Second Bancorp Incorporated, 108 Main Avenue, S.W.,
P.O. Box 1311, Warren, OH 44482-1311.
203 Initial Contribution of Trust Property; Organizational Expenses.
The Trustees acknowledge receipt in trust from the Depositor in
connection with the Original Trust Agreement of the sum of $10, which
constituted the initial Trust Property. The Depositor shall pay organizational
expenses of the Trust as they arise or shall, upon request of any Trustee,
promptly reimburse such Trustee for any such expenses paid by such Trustee. The
Depositor shall make no claim upon the Trust Property for the payment of such
expenses.
204 Issuance of the Preferred Securities.
On September 25, 2001, the Depositor and an Administrative Trustee, on
behalf of the Trust and pursuant to the Original Trust Agreement, executed and
delivered the Underwriting Agreement. Contemporaneously with the execution and
delivery of this Trust Agreement, an Administrative Trustee, on behalf of the
Trust, shall execute in accordance with Section 502 and deliver in accordance
with the Underwriting Agreement, Preferred Securities Certificates, registered
in the name of Persons entitled thereto in an aggregate amount of 2,800,000
Preferred Securities having an aggregate Liquidation Amount of $28,000,000
against receipt of the aggregate purchase price of such Preferred Securities of
$28,000,000, which amount such Administrative Trustee shall promptly deliver to
the Property Trustee. If the underwriters exercise their over-allotment option
and there is an Option Closing Date (as such term is defined in the Underwriting
Agreement), then an Administrative Trustee, on behalf of the Trust, shall
execute in accordance with Section 502 and deliver in accordance with the
Underwriting
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Agreement, Preferred Securities Certificates, registered in the name of the
Persons entitled thereto in an aggregate amount of up to 400,000 Preferred
Securities having an aggregate Liquidation Amount of up to $4,000,000 against
receipt of the aggregate purchase price of such Preferred Securities of up to
$4,000,000, which amount such Administrative Trustee shall promptly deliver to
the Property Trustee.
205 Issuance of the Common Securities; Subscription and Purchase
of Debentures.
(a) Contemporaneously with the execution and delivery of
this Trust Agreement, an Administrative Trustee, on
behalf of the Trust, shall execute in accordance with
Section 502 and deliver to the Depositor, Common
Securities Certificates, registered in the name of
the Depositor, in an aggregate amount of Common
Securities having an aggregate Liquidation Amount of
$865,980 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 $28,865,980 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
$28,865,980.
(b) If the underwriters exercise the Option and there is
an Option Closing Date, then an Administrative
Trustee, on behalf of the Trust, shall execute in
accordance with Section 502 and deliver to the
Depositor, Common Securities Certificates, registered
in the name of the Depositor, in an additional
aggregate amount of Common Securities having an
aggregate Liquidation Amount of up to $123,720
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, additional
Debentures, registered in the name of the Trust and
having an aggregate principal amount of up to
$4,123,720, and, in satisfaction of the purchase
price of such Debentures, the Property Trustee, on
behalf of the Trust, shall deliver to the Depositor
up to $4,123,720, such aggregate amount to be equal
to the sum of the amounts received from the Depositor
pursuant to Section 205(b) and from one of the
Administrative Trustees pursuant to the last sentence
of Section 204.
206 Declaration of Trust.
The exclusive purposes and functions of the Trust are (a) to issue and
sell Trust Securities and use the proceeds from such sale to acquire the
Debentures; and (b) to engage in those activities necessary, advisable or
incidental thereto. The Depositor hereby appoints the Trustees as trustees of
the Trust, to have all the rights, powers and duties to the extent set forth
herein, and the Trustees hereby accept such appointment. The Property Trustee
hereby declares that it shall hold the Trust Property in trust upon and subject
to the conditions set forth herein for the benefit of the Securityholders. The
Administrative Trustees shall have all rights, powers and duties set
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forth herein and in accordance with applicable law with respect to accomplishing
the purposes of the Trust. The Delaware Trustee shall not be entitled to
exercise any powers, nor shall the Delaware Trustee have any of the duties and
responsibilities, of the Property Trustee or the Administrative Trustees set
forth herein. The Delaware Trustee shall be one of the Trustees of the Trust for
the sole and limited purpose of fulfilling the requirements of Section 3807 of
the Delaware Business Trust Act.
207 Authorization to Enter into Certain Transactions.
(a) The Trustees shall conduct the affairs of the Trust
in accordance with the terms of this Trust Agreement.
Subject to the limitations set forth in paragraph (b)
of this Section 207 and Article VIII, and in
accordance with the following provisions (i) and
(ii), the Administrative Trustees shall have the
authority to enter into all transactions and
agreements determined by the Administrative Trustees
to be appropriate in exercising the authority,
express or implied, otherwise granted to the
Administrative Trustees under this Trust Agreement,
and to perform all acts in furtherance thereof,
including without limitation, the following:
(i) As among the Trustees, each Administrative
Trustee, acting singly or jointly, shall
have the power and authority to act on
behalf of the Trust with respect to the
following matters:
(A) the issuance and sale of the Trust
Securities and the compliance with
the Underwriting 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 Preferred Securities under the
Securities Act of 1933, as amended,
and under state securities or blue
sky laws, and the qualification of
this Trust Agreement as a trust
indenture under the Trust Indenture
Act;
(D) assisting in the listing of the
Preferred Securities upon The
Nasdaq National Market or such
securities exchange or exchanges as
shall be determined by the
Depositor, the registration of the
Preferred Securities under the
Exchange Act, the compliance with
the listing requirements of The
Nasdaq National Market or the
applicable securities exchanges and
the preparation and filing of all
periodic and
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other reports and other documents
pursuant to the foregoing;
(E) the sending of notices (other than
notices of default) and other
information regarding the Trust
Securities and the Debentures to
the Securityholders in accordance
with this Trust Agreement;
(F) the appointment of a Paying Agent,
Authenticating Agent and Securities
Registrar in accordance with this
Trust Agreement;
(G) to the extent provided in this
Trust Agreement, the winding up of
the affairs of and liquidation of
the Trust and the preparation,
execution and filing of the
certificate of cancellation with
the Secretary of State of the State
of Delaware;
(H) to take all action that may be
necessary or appropriate for the
preservation and the continuation
of the Trust's valid existence,
rights, franchises and privileges
as a statutory business trust under
the laws of the State of Delaware
and of each other jurisdiction in
which such existence is necessary
to protect the limited liability of
the Holders of the Preferred
Securities or to enable the Trust
to effect the purposes for which
the Trust was created; and
(I) the taking of any action incidental
to the foregoing as the
Administrative Trustees may from
time to time determine is necessary
or advisable to give effect to the
terms of this Trust Agreement for
the benefit of the Securityholders
(without consideration of the
effect of any such action on any
particular Securityholder).
(ii) As among the Trustees, the Property Trustee
shall have the power, duty and authority to
act on behalf of the Trust with respect to
the following matters:
(A) the establishment of the Payment
Account;
(B) the receipt of the Debentures;
(C) the collection of interest,
principal and any other payments
made in respect of the Debentures
in the Payment Account;
(D) the distribution of amounts owed to
the Securityholders in respect of
the Trust Securities in accordance
with the terms of this Trust
Agreement;
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(E) the exercise of all of the rights,
powers and privileges of a holder
of the Debentures;
(F) the sending of notices of default
and other information regarding the
Trust Securities and the Debentures
to the Securityholders in
accordance with this Trust
Agreement;
(G) the distribution of the Trust
Property in accordance with the
terms of this Trust Agreement;
(H) to the extent provided in this
Trust Agreement, the winding up of
the affairs of and liquidation of
the Trust;
(I) after an Event of Default, the
taking of any action incidental to
the foregoing as the Property
Trustee may from time to time
determine is necessary or advisable
to give effect to the terms of this
Trust Agreement and protect and
conserve the Trust Property for the
benefit of the Securityholders
(without consideration of the
effect of any such action on any
particular Securityholder);
(J) registering transfers of the Trust
Securities in accordance with this
Trust Agreement; and
(K) except as otherwise provided in
this Section 207(a)(ii), the
Property Trustee shall have none of
the duties, liabilities, powers or
the authority of the Administrative
Trustees set forth in Section
207(a)(i).
(b) So long as this Trust Agreement remains in effect,
the Trust (or the Trustees acting on behalf of the
Trust) shall not undertake any business, activities
or transaction except as expressly provided herein or
contemplated hereby. In particular, the Trustees
shall not (i) acquire any investments or engage in
any activities not authorized by this Trust
Agreement; (ii) sell, assign, transfer, exchange,
mortgage, pledge, set-off or otherwise dispose of any
of the Trust Property or interests therein, including
to Securityholders, except as expressly provided
herein; (iii) take any action that would cause the
Trust to fail or cease to qualify as a "grantor
trust" for United States federal income tax purposes;
(iv) incur any indebtedness for borrowed money or
issue any other debt; or (v) take or consent to any
action that would result in the placement of a Lien
on any of the Trust Property. The Administrative
Trustees shall defend all claims and demands of all
Persons at any time claiming any Lien on any of the
Trust Property adverse to the interest of the Trust
or the Securityholders in their capacity as
Securityholders.
(c) In connection with the issue and sale of the
Preferred Securities, the Depositor shall have the
right and responsibility to assist the Trust with
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respect to, or effect on behalf of the Trust, the
following (and any actions taken by the Depositor in
furtherance of the following prior to the date of
this Trust Agreement are hereby ratified and
confirmed in all respects):
(i) the preparation and filing by the Trust with
the Commission and the execution on behalf
of the Trust of a registration statement on
the appropriate form in relation to the
Preferred Securities, the Debentures, and
the Guarantee, including any amendments
thereto;
(ii) the determination of the states in which to
take appropriate action to qualify or,
register for sale all or part of the
Preferred Securities and to do any and all
such acts, other than actions which must be
taken by or on behalf of the Trust, and
advise the Trustees of actions they must
take on behalf of the Trust, and prepare for
execution and filing any documents to be
executed and filed by the Trust or on behalf
of the Trust, as the Depositor deems
necessary or advisable in order to comply
with the applicable laws of any such States;
(iii) the preparation for filing by the Trust and
execution on behalf of the Trust of an
application to The Nasdaq National Market or
a national stock exchange or other
organizations for listing upon notice of
issuance of any Preferred Securities and to
file or cause an Administrative Trustee to
file thereafter with such exchange or
organization such notifications and
documents as may be necessary from time to
time;
(iv) the preparation for filing by the Trust with
the Commission and the execution on behalf
of the Trust of a registration statement on
Form 8-A relating to the registration of the
Preferred Securities under Section 12(b) or
12(g) of the Exchange Act, including any
amendments thereto;
(v) the negotiation of the terms of, and the
execution and delivery of, the Underwriting
Agreement providing for the sale of the
Preferred Securities; and
(vi) the taking of any other actions necessary or
desirable to carry out any of the foregoing
activities.
(d) Notwithstanding anything herein to the contrary, the
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
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States federal income tax purposes. In this
connection, subject to Section 1002, the Depositor
and the Administrative Trustees are authorized to
take any action, not inconsistent with applicable law
or this Trust Agreement, that each of the Depositor
and the Trustees determines in their discretion to be
necessary or desirable for such purposes.
208 Assets of Trust.
The assets of the Trust shall consist of the Trust Property.
209 Title to Trust Property.
Legal title to all Trust Property shall be vested at all times in the
Property Trustee (in its capacity as such) and shall be held and administered by
the Property Trustee for the benefit of the Securityholders in accordance with
this Trust Agreement.
III PAYMENT ACCOUNT
301 Payment Account.
(a) On or prior to the Closing Date, the Property Trustee
shall establish the Payment Account. The Property
Trustee and any agent of the Property Trustee shall
have exclusive control and sole right of withdrawal
with respect to the Payment Account for the purpose
of making deposits and withdrawals from the Payment
Account in accordance with this Trust Agreement. All
monies and other property deposited or held from time
to time in the Payment Account shall be held by the
Property Trustee in the Payment Account for the
exclusive benefit of the Securityholders and for
distribution as herein provided, including (and
subject to) any priority of payments provided for
herein.
(b) The Property Trustee shall deposit in the Payment
Account, promptly upon receipt, all payments of
principal of or interest on, and any other payments
or proceeds with respect to, the Debentures. Amounts
held in the Payment Account shall not be invested by
the Property Trustee pending distribution thereof.
IV DISTRIBUTIONS; REDEMPTION
401 Distributions.
(a) Distributions on the Trust Securities shall be
cumulative, and shall accumulate whether or not there
are funds of the Trust available for the payment of
Distributions. Distributions shall accumulate from
[Date of Issuance] September 28, 2001, and, except
during any Extended Interest Payment Period with
respect to the Debentures, shall be payable
quarterly in arrears on the last calendar day of
March, June, September and
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December of each year, commencing on December 31,
2001. If any date on which a Distribution is
otherwise payable on the Trust Securities is not a
Business Day, then the payment of such Distribution
shall be made on the next succeeding day that is a
Business Day (and without any interest or other
payment in respect of any such delay) except that, if
such Business Day is in the next succeeding calendar
year, 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 (each date on which
distributions are payable in accordance with this
Section 401(a), a "Distribution Date").
(b) The Trust Securities represent undivided beneficial
interests in the Trust Property. Distributions on the
Trust Securities shall be payable at a rate of 9.00%
per annum of the Liquidation Amount of the Trust
Securities. The amount of Distributions payable for
any full period shall be computed on the basis of a
360-day year of twelve 30-day months. The amount of
Distributions for any partial period shall be
computed on the basis of the number of days elapsed
in a 360-day year of twelve 30-day months. During any
Extended Interest Payment Period with respect to the
Debentures, Distributions on the Preferred Securities
shall be deferred for a period equal to the Extended
Interest Payment Period. The amount of Distributions
payable for any period shall include the Additional
Amount, if applicable.
(c) Distributions on the Trust Securities shall be made
by the Property Trustee solely from the Payment
Account and shall be payable on each Distribution
Date only to the extent that the Trust has funds on
hand and immediately available by 12:30 p.m. on each
Distribution Date in the Payment Account for the
payment of such Distributions.
(d) Distributions on the Trust Securities with respect to
a Distribution Date shall be payable to the Holders
thereof as they appear on the Securities Register for
the Trust Securities on the relevant record date,
which shall be the 15th day of March, June, September
or December for Distributions payable on the last
calendar day of the respective month; provided,
however, that for any Trust Securities held in global
form, Distributions shall be payable to the Holder
thereof as of one Business Day immediately preceding
the Distribution Date.
402 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.
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(b) Notice of redemption shall be given by the Property
Trustee by first-class mail, postage prepaid, mailed
not less than 30 nor more than 60 days prior to the
Redemption Date to each Holder of Trust Securities to
be redeemed, at such Holder's address appearing in
the Securities Register. The Property Trustee shall
have no responsibility for the accuracy of any CUSIP
number contained in such notice. All notices of
redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust
Securities are to be redeemed, the
identification and the aggregate Liquidation
Amount of the particular Trust Securities to
be redeemed;
(v) that, on the Redemption Date, the Redemption
Price shall become due and payable upon each
such Trust Security to be redeemed and that
Distributions thereon shall cease to
accumulate on and after said date, except as
provided in Section 402(d); and
(vi) the place or places at which Trust
Securities are to be surrendered for the
payment of the Redemption Price; and
(c) The Trust Securities redeemed on each Redemption Date
shall be redeemed at the Redemption Price with the
proceeds from the contemporaneous redemption of
Debentures. Redemptions of the Trust Securities shall
be made and the Redemption Price shall be payable on
each Redemption Date only to the extent that the
Trust has immediately available funds then on hand
and available in the Payment Account for the payment
of such Redemption Price.
(d) If the Property Trustee gives a notice of redemption
in respect of any Preferred Securities, then, by
12:00 noon, New York City time, on the Redemption
Date, subject to Section 402(c), the Property
Trustee, subject to Section 402(c), shall, with
respect to Preferred Securities held in global form,
deposit with the Clearing Agency for such Preferred
Securities, to the extent available therefor, funds
sufficient to pay the applicable Redemption Price and
will give such Clearing Agency irrevocable
instructions and authority to pay the Redemption
Price to the Holders of the Preferred Securities.
With respect to Trust Securities that are not held in
global form, the Property Trustee, subject to Section
402(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
record holders thereof upon surrender of their
Preferred Securities Certificates. Notwithstanding
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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, except the right of such Securityholders
to receive the Redemption Price, but without
interest, (ii) such Trust Securities shall cease to
be Outstanding, (iii) the Clearing Agency for the
Preferred Securities or its nominee, as the
registered Holder of the Global Preferred Securities
Certificate, shall receive a registered global
certificate or certificates representing the
Debentures to be delivered upon such distribution
with respect to Preferred Securities held by the
Clearing Agency or its nominee, and (iv) any Trust
Securities Certificates not held by the Clearing
Agency for the Preferred Securities or its nominee as
specified in clause (iii) above 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 Guarantee,
Distributions on such Trust Securities shall continue
to accumulate, at the then applicable rate, from the
Redemption Date originally established by the Trust
for such Trust Securities to the date such Redemption
Price is actually paid, in which case the actual
payment date shall be the date fixed for redemption
for purposes of calculating the Redemption Price.
(e) Payment of the Redemption Price on the Trust
Securities shall be made to the record holders
thereof as they appear on the Securities Register for
the Trust Securities on the relevant record date,
which shall be the date 15 days prior to the relevant
Redemption Date.
(f) Subject to Section 403(a), if less than all the
Outstanding Trust Securities are to be redeemed on a
Redemption Date, then the aggregate Liquidation
Amount of Trust Securities to be redeemed shall be
allocated on a pro rata
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basis (based on Liquidation Amounts) among the Common
Securities and the Preferred Securities. The
particular Preferred Securities to be redeemed shall
be selected not more than 60 days prior to the
Redemption Date by the Property Trustee from the
Outstanding Preferred Securities not previously
called for redemption, by such method (including,
without limitation, by lot) as the Property Trustee
shall deem fair and appropriate and which may provide
for the selection for redemption of portions (equal
to such Liquidation Amount or an integral multiple of
such Liquidation Amount in excess thereof) of the
Liquidation Amount of Preferred Securities of a
denomination larger than such Liquidation Amount;
provided, however, in the event the redemption
relates only to Preferred Securities purchased and
held by the Depositor being redeemed in exchange for
a Like Amount of Debentures, the Property Trustee
shall select those particular Preferred Securities
for redemption. The Property Trustee shall promptly
notify the Securities Registrar in writing of the
Preferred Securities selected for redemption and, in
the case of any Preferred Securities selected for
partial redemption, the Liquidation Amount thereof to
be redeemed. For all purposes of this Trust
Agreement, unless the context otherwise requires, all
provisions relating to the redemption of Preferred
Securities shall relate, in the case of any Preferred
Securities redeemed or to be redeemed only in part,
to the portion of the Liquidation Amount of Preferred
Securities which has been or is to be redeemed.
403 Subordination of Common Securities.
(a) Payment of Distributions (including Additional
Amounts, if applicable) on, and the Redemption Price
of, the Trust Securities, as applicable, shall be
made, subject to Section 402(f), pro rata among the
Common Securities and the Preferred Securities based
on the Liquidation Amount of the Trust Securities;
provided, however, that if on any Distribution Date
or Redemption Date any Event of Default resulting
from a Debenture Event of Default shall have occurred
and be continuing, no payment of any Distribution
(including Additional Amounts, if applicable) on, or
Redemption Price of, any Common Security, and no
other payment on account of the redemption,
liquidation or other acquisition of Common
Securities, shall be made unless payment in full in
cash of all accumulated and unpaid Distributions
(including Additional Amounts, if applicable) on all
Outstanding Preferred Securities for all Distribution
periods terminating on or prior thereto, or in the
case of payment of the Redemption Price the full
amount of such Redemption Price on all Outstanding
Preferred Securities then called for redemption,
shall have been made or provided for, and all funds
immediately available to the Property Trustee shall
first be applied to the payment in full in cash of
all Distributions (including Additional Amounts, if
applicable) on, or the Redemption Price of, Preferred
Securities then due and payable.
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(b) In the case of the occurrence of any Event of Default
resulting from a Debenture Event of Default, the
Holder of Common Securities shall be deemed to have
waived any right to act with respect to any such
Event of Default under this Trust Agreement until the
effect of all such Events of Default with respect to
the Preferred Securities shall have been cured,
waived or otherwise eliminated. Until any such Event
of Default under this Trust Agreement with respect to
the Preferred Securities shall have been so cured,
waived or otherwise eliminated, the Property Trustee
shall act solely on behalf of the Holders of the
Preferred Securities and not the Holder of the Common
Securities, and only the Holders of the Preferred
Securities shall have the right to direct the
Property Trustee to act on their behalf.
404 Payment Procedures.
Payments of Distributions (including Additional Amounts, if applicable)
in respect of the Preferred Securities shall be made by check mailed to the
address of the Person entitled thereto as such address shall appear on the
Securities Register or, if the Preferred Securities are held by a Clearing
Agency, such Distributions shall be made to the Clearing Agency in immediately
available funds, which will credit the relevant accounts on the applicable
Distribution Dates. Payments in respect of the Common Securities shall be made
in such manner as shall be mutually agreed between the Property Trustee and the
Common Securityholder.
405 Tax Returns and Reports.
The Administrative Trustees shall prepare (or cause to be prepared), at
the Depositor's expense, and file all United States federal, state and local tax
and information returns and reports required to be filed by or in respect of the
Trust. In this regard, the Administrative Trustees shall (a) prepare and file
(or cause to be prepared and filed) the appropriate Internal Revenue Service
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 Internal Revenue Service forms required to
be furnished to such Securityholder or the information required to be provided
on such form. The Administrative Trustees shall provide the Depositor with a
copy of all such returns and reports promptly after such filing or furnishing.
The Property Trustee shall comply with United States federal withholding and
backup withholding tax laws and information reporting requirements with respect
to any payments to Securityholders under the Trust Securities.
406 Payment of Taxes, Duties, etc. of the Trust.
Upon receipt under the Debentures of Additional Interest, the Property
Trustee, at the direction of an Administrative Trustee or the Depositor, shall
promptly pay any taxes, duties or governmental charges of whatsoever nature
(other than withholding taxes) imposed on the Trust by the United States or any
other taxing authority.
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407 Payments Under Indenture.
Any amount payable hereunder to any Holder of Preferred Securities
shall be reduced by the amount of any corresponding payment such Holder has
directly received under the Indenture pursuant to Section 513(b) or (c) hereof.
V TRUST SECURITIES CERTIFICATES
501 Initial Ownership.
Upon the creation of the Trust and the contribution by the Depositor
pursuant to Section 203 and until the issuance of the Trust Securities, and at
any time during which no Trust Securities are outstanding, the Depositor shall
be the sole beneficial owner of the Trust.
502 The Trust Securities Certificates.
The Preferred Securities Certificates shall be issued in minimum
denominations of the Liquidation Amount and integral multiples of the
Liquidation Amount in excess thereof, and the Common Securities Certificates
shall be issued in denominations of the Liquidation Amount and multiples thereof
(which may, in the case of the Common Securities, include fractional amounts).
The Trust Securities Certificates shall be executed on behalf of the Trust by
manual or facsimile signature of at least one Administrative Trustee. Trust
Securities Certificates bearing the manual or facsimile signatures of
individuals who were, at the time when such signatures shall have been affixed,
authorized to sign on behalf of the Trust, shall be validly issued and entitled
to the benefits of this Trust Agreement, notwithstanding that such individuals
or any of them shall have ceased to be so authorized prior to the delivery of
such Trust Securities Certificates or did not hold such offices at the date of
delivery of such Trust Securities Certificates. A transferee of a Trust
Securities Certificate shall become a Securityholder, and shall be entitled to
the rights and subject to the obligations of a Securityholder hereunder, upon
due registration of such Trust Securities Certificate in such transferee's name
pursuant to Sections 504, 511 and 513.
503 Execution, Authentication and Delivery of Trust Securities
Certificates.
(a) On the Closing Date and on any date on which the
underwriters exercise their over-allotment option, as
applicable (an "Option Closing Date"), the
Administrative Trustees shall cause Trust Securities
Certificates, in an aggregate Liquidation Amount as
provided in Sections 204 and 205, to be executed on
behalf of the Trust by at least one of the
Administrative Trustees and delivered to or upon the
written order of the Depositor, signed by its Chief
Executive Officer, President, any Vice President or
its Treasurer without further corporate action by the
Depositor, in authorized denominations.
(b) A Preferred Securities Certificate shall not be valid
until authenticated by the manual signature of an
authorized signatory of the Property Trustee in
substantially the form of Exhibit E attached hereto.
The signature shall be conclusive evidence that the
Preferred Securities Certificate has been
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authenticated under this Trust Agreement. Each
Preferred Security Certificate shall be dated the
date of its authentication.
Upon the written order of the Trust signed by one of the Administrative
Trustees, the Property Trustee shall authenticate and make available for
delivery the Preferred Securities Certificates.
The Property Trustee may appoint an Authenticating Agent acceptable to
the Trust to authenticate the Preferred Securities. An Authenticating Agent may
authenticate the Preferred Securities whenever the Property Trustee may do so.
Each reference in this Trust Agreement to authentication by the Property Trustee
includes authentication by such agent. An Authenticating Agent has the same
rights as the Property Trustee to deal with the Company or the Trust.
SECTION 503A. GLOBAL PREFERRED SECURITY.
(a) Any Global Preferred Security issued under this Trust
Agreement shall be registered in the name of the
nominee of the Clearing Agency and delivered to such
custodian therefor, and such Global Preferred
Security shall constitute a single Preferred Security
for all purposes of this Trust Agreement.
(b) Notwithstanding any other provision in this Trust
Agreement, no Global Preferred Security may be
exchanged for Preferred Securities registered in the
names of persons other than the Depositary or its
nominee unless (i) the Depositary notifies the
Debenture Trustee that it is unwilling or unable to
continue as a depositary for such Global Preferred
Securities and the Depositor is unable to locate a
qualified successor depositary, (ii) the Depositor
executes and delivers to the Debenture Trustee a
written order stating that it elects to terminate the
book-entry system through the Depositary or (iii)
there shall have occurred and be continuing a
Debenture Event of Default.
(c) If a Preferred Security is to be exchanged in whole
or in part for a beneficial interest in a Global
Preferred Security, then either (i) such Global
Preferred Security shall be so surrendered for
exchange or cancellation as provided in this Article
V or (ii) the Liquidation Amount thereof shall be
reduced or increased by an amount equal to the
portion thereof to be so exchanged or cancelled, or
equal to the Liquidation Amount of such other
Preferred Securities to be so exchanged for a
beneficial interest therein, as the case may be, by
means of an appropriate adjustment made on the
records of the Securities Registrar, whereupon the
Property Trustee, in accordance with the rules and
procedures of the Depositary for such Global
Preferred Security (the "Applicable Procedures"),
shall instruct the Clearing Agency or its authorized
representative to make a corresponding adjustment to
its records. Upon any such surrender or adjustment of
a Global Preferred Security by the Clearing Agency,
accompanied by registration instructions, the
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Administrative Trustees shall execute and the
Property Trustee shall, subject to Section 504(b) and
as otherwise provided in this Article V, authenticate
and deliver any Preferred Securities issuable in
exchange for such Global Preferred Security (or any
portion thereof) in accordance with the instructions
of the Clearing Agency. The Property Trustee shall
not be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall
be fully protected in relying on, such instructions.
(d) Every Preferred Security executed, authenticated and
delivered upon registration of transfer of, or in
exchange for or in lieu of, a Global Preferred
Security or any portion thereof, whether pursuant to
this Article V or otherwise, shall be executed,
authenticated and delivered in the form of, and shall
be, a Global Preferred Security, unless such Global
Preferred Security is registered in the name of a
Person other than the Clearing Agency for such Global
Preferred Security or a nominee thereof.
(e) The Clearing Agency or its nominee, as the registered
owner of a Global Preferred Security, shall be
considered the Holder of the Preferred Securities
represented by such Global Preferred Security for all
purposes under this Trust Agreement and the Preferred
Securities, and owners of beneficial interests in
such Global Preferred Security shall hold such
interests pursuant to the Applicable Procedures and,
except as otherwise provided herein, shall not be
entitled to receive physical delivery of any such
Preferred Securities in definitive form and shall not
be considered the Holders thereof under this Trust
Agreement. Accordingly, any such owner's beneficial
interest in the Global Preferred Securities shall be
shown only on, and the transfer of such interest
shall be effected only through, records maintained by
the Clearing Agency or its nominee. Neither the
Property Trustee, the Securities Registrar nor the
Depositor shall have any liability in respect of any
transfers effected by the Clearing Agency.
(f) The rights of owners of beneficial interests in a
Global Preferred Security shall be exercised only
through the Clearing Agency and shall be limited to
those established by law and agreements between such
owners and the Clearing Agency.
504 Registration of Transfer and Exchange of Preferred Securities
Certificates.
(a) The Depositor shall keep or cause to be kept, at the
office or agency maintained pursuant to Section 508,
a register or registers for the purpose of
registering Trust Securities Certificates and,
subject to the provisions of Section 503A, transfers
and exchanges of Preferred Securities Certificates
(herein referred to as the "Securities Register") in
which the registrar designated by the Depositor (the
"Securities Registrar"), subject to such reasonable
regulations as it may prescribe, shall provide for
the registration of Preferred Securities Certificates
and Common Securities
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Certificates (subject to Section 510 in the case of
the Common Securities Certificates) and registration
of transfers and exchanges of Preferred Securities
Certificates as herein provided. The Property Trustee
shall be the initial Securities Registrar.
(b) Subject to the provisions of Section 503A, upon
surrender for registration of transfer of any
Preferred Securities Certificate at the office or
agency maintained pursuant to Section 508, the
Administrative Trustees or any one of them shall
execute and deliver, in the name of the designated
transferee or transferees, one or more new Preferred
Securities Certificates in authorized denominations
of a like aggregate Liquidation Amount dated the date
of execution by such Administrative Trustee or
Trustees. The Securities Registrar shall not be
required to register the transfer of any Preferred
Securities that have been called for redemption. At
the option of a Holder, Preferred Securities
Certificates may be exchanged for other Preferred
Securities Certificates in authorized denominations
of the same class and of a like aggregate Liquidation
Amount upon surrender of the Preferred Securities
Certificates to be exchanged at the office or agency
maintained pursuant to Section 508.
(c) Every Preferred Securities Certificate presented or
surrendered for registration of transfer or exchange,
subject to the provisions of Section 503A, shall be
accompanied by a written instrument of transfer in
form satisfactory to the Property Trustee and the
Securities Registrar duly executed by the Holder or
his attorney duly authorized in writing. Each
Preferred Securities Certificate surrendered for
registration of transfer or exchange shall be
canceled and subsequently disposed of by the Property
Trustee in accordance with its customary practice.
The Trust shall not be required to (i) issue,
register the transfer of, or exchange any Preferred
Securities during a period beginning at the opening
of business 15 calendar days before the date of
mailing of a notice of redemption of any Preferred
Securities called for redemption and ending at the
close of business on the day of such mailing; or (ii)
register the transfer of or exchange any Preferred
Securities so selected for redemption, in whole or in
part, except the unredeemed portion of any such
Preferred Securities being redeemed in part.
(d) No service charge shall be made for any registration
of transfer or exchange of Preferred Securities
Certificates, subject to the provisions of Section
503A, but the Securities Registrar may require
payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection
with any transfer or exchange of Preferred Securities
Certificates.
(e) 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 Preferred
Security
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not made in accordance with this Trust Agreement
shall be null and void. A Preferred Security that is
not a Global Preferred Security may be transferred,
in whole or in part, to a Person who takes delivery
in the form of another Preferred Security that is not
a Global Preferred Security as provided in Section
504(a). A beneficial interest in a Global Preferred
Security may be exchanged for a Preferred Security
that is not a Global Preferred Security only as
provided in Section 503A.
505 Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates.
If (a) any mutilated Trust Securities Certificate shall be surrendered
to the Securities Registrar, or if the Securities Registrar shall receive
evidence to its satisfaction of the destruction, loss or theft of any Trust
Securities Certificate; and (b) there shall be delivered to the Securities
Registrar and the Administrative Trustees such security or indemnity as may be
required by them to save each of them harmless, then in the absence of notice
that such Trust Securities Certificate shall have been acquired by a bona fide
purchaser, the Administrative Trustees, or any one of them, on behalf of the
Trust shall execute and make available for delivery, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Trust Securities Certificate, a
new Trust Securities Certificate of like class, tenor and denomination. In
connection with the issuance of any new Trust Securities Certificate under this
Section 505, the Administrative Trustees or the Securities Registrar may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection therewith. Any duplicate Trust Securities
Certificate issued pursuant to this Section 505 shall constitute conclusive
evidence of an undivided beneficial interest in the assets of the Trust, as if
originally issued, whether or not the lost, stolen or destroyed Trust Securities
Certificate shall be found at any time.
506 Persons Deemed Securityholders.
The Trustees, the Paying Agent and the Securities Registrar shall treat
the Person in whose name any Trust Securities Certificate shall be registered in
the Securities Register as the owner of such Trust Securities Certificate for
the purpose of receiving Distributions and for all other purposes whatsoever,
and neither the Trustees nor the Securities Registrar shall be bound by any
notice to the contrary.
507 Access to List of Securityholders' Names and Addresses.
At any time when the Property Trustee is not also acting as the
Securities Registrar, the Administrative Trustees or the Depositor shall furnish
or cause to be furnished to the Property Trustee (a) within five Business Days
of March 15, June 15, September 15 and December 15 of each year, a list, in such
form as the Property Trustee may reasonably require, of the names and addresses
of the Securityholders as of the most recent record date; and (b) promptly after
receipt by any Administrative Trustee or the Depositor of a request therefor
from the Property Trustee in order to enable the Property Trustee to discharge
its obligations under this Trust Agreement, in each case to the extent such
information is in the possession or control of the Administrative Trustees or
the Depositor and is not identical to a previously supplied list or has not
otherwise been received by the Property Trustee in its capacity as Securities
Registrar. The rights of
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Securityholders to communicate with other Securityholders with respect to their
rights under this Trust Agreement or under the Trust Securities, and the
corresponding rights of the Trustee shall be as provided in the Trust Indenture
Act. Each Holder, by receiving and holding a Trust Securities Certificate, and
each owner shall be deemed to have agreed not to hold the Depositor, the
Property Trustee or the Administrative Trustees accountable by reason of the
disclosure of its name and address, regardless of the source from which such
information was derived.
508 Maintenance of Office or Agency.
The Administrative Trustees shall maintain, or cause to be maintained,
in The City of New York, or other location designated by the Administrative
Trustees, an office or offices or agency or agencies where Preferred Securities
Certificates may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Trustees in respect of the Trust
Securities Certificates may be served. The Administrative Trustees initially
designate the Corporate Trust Office of the Property Trustee, Wilmington Trust
Company, as the principal corporate trust office for such purposes. The
Administrative Trustees shall give prompt written notice to the Depositor and to
the Securityholders of any change in the location of the Securities Register or
any such office or agency.
509 Appointment of Paying Agent.
The Paying Agent shall make Distributions to Securityholders from the
Payment Account and shall report the amounts of such Distributions to the
Property Trustee and the Administrative Trustees. Any Paying Agent shall have
the revocable power to withdraw funds from the Payment Account for the purpose
of making the Distributions referred to above. The Administrative Trustees may
revoke such power and remove the Paying Agent if such Trustees determine in
their sole discretion that the Paying Agent shall have failed to perform its
obligations under this Trust Agreement in any material respect. The Paying Agent
shall initially be the Property Trustee, and any co-paying agent chosen by the
Property Trustee must be acceptable to the Administrative Trustees and the
Depositor. Any Person acting as Paying Agent shall be permitted to resign as
Paying Agent upon 30 days' written notice to the Administrative Trustees, the
Property Trustee and the Depositor. In the event that the Property Trustee shall
no longer be the Paying Agent or a successor Paying Agent shall resign or its
authority to act be revoked, the Administrative Trustees shall appoint a
successor that is acceptable to the Property Trustee and the Depositor to act as
Paying Agent (which shall be a bank or trust company). The Administrative
Trustees shall cause such successor Paying Agent or any additional Paying Agent
appointed by the Administrative Trustees to execute and deliver to the Trustees
an instrument in which such successor Paying Agent or additional Paying Agent
shall agree with the Trustees that as Paying Agent, such successor Paying Agent
or additional Paying Agent shall hold all sums, if any, held by it for payment
to the Securityholders in trust for the benefit of the Securityholders entitled
thereto until such sums shall be paid to such Securityholders. The Paying Agent
shall return all unclaimed funds to the Property Trustee and, upon removal of a
Paying Agent, such Paying Agent shall also return all funds in its possession to
the Property Trustee. The provisions of Sections 801, 803 and 806 shall apply to
the Property Trustee also in its role as Paying Agent, for so long as the
Property Trustee shall act as Paying Agent and, to the extent applicable, to any
other Paying Agent appointed hereunder. Any reference in this Agreement to the
Paying Agent shall include any co-paying agent unless the context requires
otherwise.
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510 Ownership of Common Securities by Depositor.
On the Closing Date, the Depositor shall acquire and retain beneficial
and record ownership of the Common Securities. To the fullest extent permitted
by law, any attempted transfer of the Common Securities (other than a transfer
in connection with a merger or consolidation of the Depositor into another
corporation pursuant to Section 12.1 of the Indenture) shall be void. The
Administrative Trustees shall cause each Common Securities Certificate issued to
the Depositor to contain a legend stating "THIS CERTIFICATE IS NOT
TRANSFERABLE."
511 Trust Securities Certificates.
(a) Upon their original issuance, Preferred Securities
Certificates shall be issued in the form of one or
more fully registered Global Preferred Securities
Certificates which will be deposited with or on
behalf of the Clearing Agency and registered in the
name of the Clearing Agency's nominee. Unless and
until it is exchangeable in whole or in part for the
Preferred Securities in definitive form, a global
security may not be transferred except as a whole by
the Clearing Agency to a nominee of the Clearing
Agency or by a nominee of the Clearing Agency to the
Clearing Agency or another nominee of the Clearing
Agency or by the Clearing Agency or any such nominee
to a successor of such Clearing Agency or a nominee
of such successor.
(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.
512 Notices to Clearing Agency.
To the extent that a notice or other communication to the Holders is
required under this Trust Agreement, for so long as Preferred Securities are
represented by a Global Preferred Securities Certificate, the Trustees shall
give all such notices and communications specified herein to be given to the
Clearing Agency, and shall have no obligation to provide notice to the owners of
the beneficial interest in the Global Preferred Securities.
513 Rights of Securityholders.
(a) The legal title to the Trust Property is vested
exclusively in the Property Trustee (in its capacity
as such) in accordance with Section 209, and the
Securityholders shall not have any right or title
therein other than the undivided beneficial interest
in the assets of the Trust conferred by their Trust
Securities and they shall have no right to call for
any partition or division of property, profits or
rights of the Trust except as described below. The
Trust Securities shall be personal property giving
only the rights specifically set forth therein and in
this Trust Agreement. The Trust Securities shall have
no preemptive or similar rights. When issued and
delivered to Holders of the Preferred Securities
against payment of the
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purchase price therefor, the Preferred Securities
shall be fully paid and nonassessable interests in
the Trust. The Holders of the Preferred Securities,
in their capacities as such, shall be entitled to the
same limitation of personal liability extended to
stockholders of private corporations for profit
organized under the General Corporation Law of the
State of Delaware.
(b) For so long as any Preferred Securities remain
Outstanding, if, upon a Debenture Event of Default,
the Debenture Trustee fails or the holders of not
less than 25% in principal amount of the outstanding
Debentures fail to declare the principal of all of
the Debentures to be immediately due and payable, the
Holders of at least 25% in Liquidation Amount of the
Preferred Securities then Outstanding shall have such
right by a notice in writing to the Depositor and the
Debenture Trustee; and upon any such declaration such
principal amount of and the accrued interest on all
of the Debentures shall become immediately due and
payable, provided that the payment of principal and
interest on such Debentures shall remain subordinated
to the extent provided in the Indenture.
(c) For so long as any Preferred Securities remain
Outstanding, upon a Debenture Event of Default
arising from the failure to pay interest or principal
on the Debentures, the Holders of any Preferred
Securities then Outstanding shall, to the fullest
extent permitted by law, have the right to directly
institute proceedings for enforcement of payment to
such Holders of principal of or interest on the
Debentures having a principal amount equal to the
Liquidation Amount of the Preferred Securities of
such Holders.
VI ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
601 Limitations on Voting Rights.
(a) Except as provided in this Section 601, in Sections
512, 810 and 1002 and in the Indenture and as
otherwise required by law, no record Holder of
Preferred Securities shall have any right to vote or
in any manner otherwise control the administration,
operation and management of the Trust or the
obligations of the parties hereto, nor shall anything
herein set forth, or contained in the terms of the
Trust Securities Certificates, be construed so as to
constitute the Securityholders from time to time as
partners or members of an association.
(b) So long as any Debentures are held by the Property
Trustee 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
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rescind or annul a declaration that the principal of
all the Debentures shall be due and payable; or (iv)
consent to any amendment, modification or termination
of the Indenture or the Debentures, where such
consent shall be required, without, in each case,
obtaining the prior approval of the Holders of at
least a majority in Liquidation Amount of all
Outstanding Preferred Securities; provided, however,
that where a consent under the Indenture would
require the consent of each holder of outstanding
Debentures affected thereby, no such consent shall be
given by the Property Trustee without the prior
written consent of each Holder of Preferred
Securities. The Trustees shall not revoke any action
previously authorized or approved by a vote of the
Holders of the Outstanding Preferred Securities,
except by a subsequent vote of the Holders of the
Outstanding Preferred Securities. The Property
Trustee shall notify each Holder of the Outstanding
Preferred Securities of any notice of default
received from the Debenture Trustee with respect to
the Debentures. In addition to obtaining the
foregoing approvals of the Holders of the Preferred
Securities, prior to taking any of the foregoing
actions, the Trustees shall, at the expense of the
Depositor, obtain an Opinion of Counsel experienced
in such matters to the effect that the Trust shall
continue to be classified as a grantor trust and not
as an association taxable as a corporation for United
States federal income tax purposes on account of such
action.
(c) If any proposed amendment to the Trust Agreement
provides for, or the Trustees otherwise propose to
effect, (i) any action that would adversely affect in
any material respect the powers, preferences or
special rights of the Preferred Securities, whether
by way of amendment to the Trust Agreement or
otherwise; or (ii) the dissolution, winding-up or
termination of the Trust, other than pursuant to the
terms of this Trust Agreement, then the Holders of
Outstanding Preferred Securities as a class shall be
entitled to vote on such amendment or proposal and
such amendment or proposal shall not be effective
except with the approval of the Holders of at least a
majority in Liquidation Amount of the Outstanding
Preferred Securities. No amendment to this Trust
Agreement may be made if, as a result of such
amendment, the Trust would cease to be classified as
a grantor trust or would be classified as an
association taxable as a corporation for United
States federal income tax purposes.
602 Notice of Meetings.
Notice of all meetings of the Preferred Securityholders, stating the
time, place and purpose of the meeting, shall be given by the Property Trustee
pursuant to Section 1008 to each Preferred Securityholder of record, at his
registered address, at least 15 days and not more than 90 days before the
meeting. At any such meeting, any business properly before the meeting may be so
considered whether or not stated in the notice of the meeting. Any adjourned
meeting may be held as adjourned without further notice.
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603 Meetings of Preferred Securityholders.
(a) No annual meeting of Securityholders is required to
be held. The Administrative Trustees, however, shall
call a meeting of Securityholders to vote on any
matter in respect of which Preferred Securityholders
are entitled to vote upon the written request of the
Preferred Securityholders of 25% of the Outstanding
Preferred Securities (based upon their aggregate
Liquidation Amount) and the Administrative Trustees
or the Property Trustee may, at any time in their
discretion, call a meeting of Preferred
Securityholders to vote on any matters as to which
the Preferred Securityholders are entitled to vote.
(b) Preferred Securityholders of record of 50% of the
Outstanding Preferred Securities (based upon their
aggregate Liquidation Amount), present in person or
by proxy, shall constitute a quorum at any meeting of
Securityholders.
(c) If a quorum is present at a meeting, an affirmative
vote by the Preferred Securityholders of record
present, in person or by proxy, holding at least a
majority of the Preferred Securities (based upon
their aggregate Liquidation Amount) held by the
Preferred Securityholders of record present, either
in person or by proxy, at such meeting shall
constitute the action of the Securityholders, unless
this Trust Agreement requires a greater number of
affirmative votes.
604 Voting Rights.
Securityholders shall be entitled to one vote for each $10 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.
605 Proxies, etc.
At any meeting of Securityholders, any Securityholder entitled to vote
thereat may vote by proxy, provided that no proxy, shall be voted at any meeting
unless it shall have been placed on file with the Administrative Trustees, or
with such other officer or agent of the Trust as the Administrative Trustees may
direct, for verification prior to the time at which such vote shall be taken.
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.
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606 Securityholder Action by Written Consent.
Any action which may be taken by Securityholders at a meeting may be
taken without a meeting if Securityholders holding at least a majority of all
Outstanding Trust Securities (based upon their aggregate Liquidation Amount)
entitled to vote in respect of such action (or such larger proportion thereof as
shall be required by any express provision of this Trust Agreement) shall
consent to the action in writing (based upon their aggregate Liquidation
Amount).
607 Record Date for Voting and Other Purposes.
For the purposes of determining the Securityholders who are entitled to
notice of and to vote at any meeting or by written consent, or to participate in
any Distribution on the Trust Securities in respect of which a record date is
not otherwise provided for in this Trust Agreement, or for the purpose of any
other action, the Administrative Trustees 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.
608 Acts of Securityholders.
(a) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided or
permitted by this Trust Agreement to be given, made
or taken by Securityholders may be embodied in and
evidenced by one or more instruments of substantially
similar tenor signed by such Securityholders in
person or by an agent duly appointed in writing; and,
except as otherwise expressly provided herein, such
action shall become effective when such instrument or
instruments are delivered to an Administrative
Trustee. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are
herein sometimes referred to as the "Act" of the
Securityholders signing such instrument or
instruments. Proof of execution of any such
instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Trust
Agreement and (subject to Section 801) conclusive in
favor of the Trustees, if made in the manner provided
in this Section 608.
(b) The fact and date of the execution by any Person of
any such instrument or writing may be proved by the
affidavit of a witness of such execution or by a
certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds,
certifying that the individual signing such
instrument or writing acknowledged to him the
execution thereof. Where such execution is by a
signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also
constitute sufficient proof of his authority. The
fact and date of the execution of any such instrument
or writing, or the authority of the Person executing
the same, may also be proved in any other manner
which any Trustee receiving the same deems
sufficient.
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(c) The ownership of Preferred Securities shall be proved
by the Securities Register.
(d) Any request, demand, authorization, direction,
notice, consent, waiver or other Act of the
Securityholder of any Trust Security shall bind every
future Securityholder of the same Trust Security and
the Securityholder of every Trust Security issued
upon the registration of transfer thereof or in
exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the
Trustees or the Trust in reliance thereon, whether or
not notation of such action is made upon such Trust
Security.
(e) Without limiting the foregoing, a Securityholder
entitled hereunder to take any action hereunder with
regard to any particular Trust Security may do so
with regard to all or any part of the Liquidation
Amount of such Trust Security or by one or more duly
appointed agents each of which may do so pursuant to
such appointment with regard to all or any part of
such liquidation amount.
(f) A Securityholder may institute a legal proceeding
directly against the Depositor under the Guarantee to
enforce its rights under the Guarantee without first
instituting a legal proceeding against the Guarantee
Trustee (as defined in the Guarantee), the Trust or
any Person.
609 Inspection of Records.
Upon reasonable notice to the Administrative Trustees and the Property
Trustee, the records of the Trust shall be open to inspection at the principal
executive office of the Trust (as indicated in Section 202) by Holders of the
Trust Securities during normal business hours for any purpose reasonably related
to such Holder's interest as a Holder.
VII REPRESENTATIONS AND WARRANTIES
701 Representations and Warranties of the Bank and the Property
Trustee.
The Bank and the Property Trustee, each severally on behalf of and as
to itself, as of the date hereof, and each successor Property Trustee at the
time of the successor Property Trustee's acceptance of its appointment as
Property Trustee hereunder (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 corporate capacity), hereby represents and warrants (as
applicable) for the benefit of the Depositor and the Securityholders that:
(a) the Bank is a state chartered trust company duly
organized, validly existing and in good standing
under the laws of the State of Delaware;
(b) the Bank has full corporate power, authority and
legal right to execute, deliver and perform its
obligations under this Trust Agreement and has taken
all necessary action to authorize the execution,
delivery and performance by it of this Trust
Agreement;
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(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 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;
(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.
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702 Representations and Warranties of the Delaware Bank and the
Delaware Trustee.
The Delaware Bank and the Delaware Trustee, each severally on behalf of
and as to itself, as of the date hereof, and each successor Delaware Trustee at
the time of the successor Delaware Trustee's acceptance of appointment as
Delaware Trustee hereunder (the term "Delaware Bank" being used to refer to such
successor Delaware Trustee in its separate corporate capacity), hereby
represents and warrants (as applicable) for the benefit of the Depositor and the
Securityholders that:
(a) the Delaware Bank is a Delaware banking corporation
duly organized, validly existing and in good standing
under the laws of the State of Delaware;
(b) the Delaware Bank has full corporate power, authority
and legal right to execute, deliver and perform its
obligations under this Trust Agreement and has taken
all necessary action to authorize the execution,
delivery and performance by it of this Trust
Agreement;
(c) this Trust Agreement has been duly authorized,
executed and delivered by the Delaware Trustee and
constitutes the valid and legally binding agreement
of the Delaware Trustee enforceable against it in
accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability
relating to or affecting creditors, rights and to
general equity principles;
(d) the execution, delivery and performance by the
Delaware Trustee of this Trust Agreement has been
duly authorized by all necessary corporate or other
action on the part of the Delaware Trustee and does
not require any approval of stockholders of the
Delaware Bank and such execution, delivery and
performance shall not (i) violate the Delaware Bank's
charter or by-laws; (ii) violate any provision of, or
constitute, with or without notice or lapse of time,
a default under, or result in the creation or
imposition of, any Lien on any properties included in
the Trust Property pursuant to the provisions of, any
indenture, mortgage, credit agreement, license or
other agreement or instrument to which the Delaware
Bank or the Delaware Trustee is a party or by which
it is bound; or (iii) violate any law, governmental
rule or regulation of the United States or the State
of Delaware, as the case may be, governing the
banking or trust powers of the Delaware Bank or the
Delaware Trustee (as appropriate in context) or any
order, judgment or decree applicable to the Delaware
Bank or the Delaware Trustee;
(e) neither the authorization, execution or delivery by
the Delaware Trustee of this Trust Agreement nor the
consummation of any of the transactions by the
Delaware Trustee contemplated herein or therein
requires the consent or approval of, the giving of
notice to, the registration with or the taking of any
other action with respect to any governmental
authority or agency
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under any existing federal law governing the banking
or trust powers of the Delaware Bank or the Delaware
Trustee, as the case may be, under the laws of the
United States or the State of Delaware; and
(f) there are no proceedings pending or, to the best of
the Delaware Trustee's knowledge, threatened against
or affecting the Delaware Bank or the Delaware
Trustee in any court or before any governmental
authority, agency or arbitration board or tribunal
which, individually or in the aggregate, would
materially and adversely affect the Trust or would
question the right, power and authority of the
Delaware Trustee to enter into or perform its
obligations as one of the Trustees under this Trust
Agreement.
703 Representations and Warranties of Depositor.
The Depositor hereby represents and warrants for the benefit of the
Securityholders that:
(a) the Trust Securities Certificates issued on the
Closing Date or the Option Closing Date, if
applicable, on behalf of the Trust have been duly
authorized and, shall have been, duly and validly
executed, issued and delivered by the Administrative
Trustees pursuant to the terms and provisions of, and
in accordance with the requirements of, this Trust
Agreement and the Securityholders shall be, as of
such date, entitled to the benefits of this Trust
Agreement; and
(b) there are no taxes, fees or other governmental
charges payable by the Trust (or the Trustees on
behalf of the Trust) under the laws of the State of
Delaware or any political subdivision thereof in
connection with the execution, delivery and
performance by the Bank, the Property Trustee or the
Delaware Trustee, as the case may be, of this Trust
Agreement.
VIII TRUSTEES
801 Certain Duties and Responsibilities.
(a) The duties and responsibilities of the Trustees shall
be as provided by this Trust Agreement and, in the
case of the Property Trustee, by the Trust Indenture
Act. Notwithstanding the foregoing, no provision of
this Trust Agreement shall require the Trustees to
expend or risk their own funds or otherwise incur any
financial liability in the performance of any of
their duties hereunder, or in the exercise of any of
their rights or powers, if they shall have reasonable
grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is
not reasonably assured to it. No Administrative
Trustee nor the Delaware Trustee shall be liable for
its act or omissions hereunder except as a result of
its own gross negligence or willful misconduct. The
Property Trustee's liability shall be determined
under the Trust Indenture Act. Whether or not therein
expressly so provided, every provision of this Trust
Agreement relating to
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the conduct or affecting the liability of or
affording protection to the Trustees shall be subject
to the provisions of this Section 801. To the extent
that, at law or in equity, the Delaware Trustee or an
Administrative Trustee has duties (including
fiduciary duties) and liabilities relating thereto to
the Trust or to the Securityholders, the Delaware
Trustee or such Administrative Trustee shall not be
liable to the Trust or to any Securityholder for such
Trustee's good faith reliance on the provisions of
this Trust Agreement. The provisions of this Trust
Agreement, to the extent that they restrict the
duties and liabilities of the Delaware Trustee or the
Administrative Trustees otherwise existing at law or
in equity, are agreed by the Depositor and the
Securityholders to replace such other duties and
liabilities of the Delaware Trustee or the
Administrative Trustees, as the case may be.
(b) All payments made by the Property Trustee or a Paying
Agent in respect of the Trust Securities shall be
made only from the revenue and proceeds from the
Trust Property and only to the extent that there
shall be sufficient revenue or proceeds from the
Trust Property to enable the Property Trustee or a
Paying Agent to make payments in accordance with the
terms hereof. Each Securityholder, by its acceptance
of a Trust Security, agrees that it shall look solely
to the revenue and proceeds from the Trust Property
to the extent legally available for distribution to
it as herein provided and that the Trustees are not
personally liable to it for any amount distributable
in respect of any Trust Security or for any other
liability in respect of any Trust Security. This
Section 801(b) does not limit the liability of the
Trustees expressly set forth elsewhere in this Trust
Agreement or, in the case of the Property Trustee, in
the Trust Indenture Act.
(c) No provision of this Trust Agreement shall be
construed to relieve the Property Trustee from
liability for its own negligent action, its own
negligent failure to act, or its own willful
misconduct, except that:
(i) the Property Trustee shall not be liable for
any error of judgment made in good faith by
an authorized officer of the Property
Trustee, unless it shall be proved that the
Property Trustee was negligent in
ascertaining the pertinent facts;
(ii) the Property Trustee shall not be liable
with respect to any action taken or omitted
to be taken by it in good faith in
accordance with the direction of the Holders
of at least 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;
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(iii) the Property Trustee's sole duty with
respect to the custody, safe keeping and
physical preservation of the Debentures and
the Payment Account shall be to deal with
such property in a similar manner as the
Property Trustee deals with similar property
for its own account, subject to the
protections and limitations on liability
afforded to the Property Trustee under this
Trust Agreement and the Trust Indenture Act;
(iv) the Property Trustee shall not be liable for
any interest on any money received by it
except as it may otherwise agree with the
Depositor and money held by the Property
Trustee need not be segregated from other
funds held by it except in relation to the
Payment Account maintained by the Property
Trustee pursuant to Section 301 and except
to the extent otherwise required by law; and
(d) 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.
802 Certain Notices.
(a) Within five Business Days after the occurrence of any
Event of Default actually known to the Property
Trustee, the Property Trustee shall transmit, in the
manner and to the extent provided in Section 1008,
notice of such Event of Default to the
Securityholders, the Administrative Trustees and the
Depositor, unless such Event of Default shall have
been cured or waived. For purposes of this Section
802 the term "Event of Default" means any event that
is, or after notice or lapse of time or both would
become, an Event of Default.
(b) The Administrative Trustees shall transmit, to the
Securityholders in the manner and to the extent
provided in Section 1008, notice of the Depositor's
election to begin or further extend an Extended
Interest Payment Period on the Debentures (unless
such election shall have been revoked) and of any
election by the Depositor to accelerate the Maturity
Date of the Debentures, as defined in the Indenture,
within the time specified for transmitting such
notice to the holders of the Debentures pursuant to
the Indenture as originally executed.
803 Certain Rights of Property Trustee.
Subject to the provisions of Section 801:
(a) the Property Trustee may rely and shall be protected
in acting or refraining from acting in good faith
upon any resolution, Opinion of Counsel,
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certificate, written representation of a Holder or
transferee, certificate of auditors or any other
certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond,
debenture, note, other evidence of indebtedness or
other paper or document believed by it to be genuine
and to have been signed or presented by the proper
party or parties;
(b) if (i) in performing its duties under this Trust
Agreement the Property Trustee is required to decide
between alternative courses of action; or (ii) in
construing any of the provisions of this Trust
Agreement the Property Trustee finds the same
ambiguous or inconsistent with other provisions
contained herein; or (iii) the Property Trustee is
unsure of the application of any provision of this
Trust Agreement, then, except as to any matter as to
which the Preferred Securityholders are entitled to
vote under the terms of this Trust Agreement, the
Property Trustee shall deliver a notice to the
Depositor requesting written instructions of the
Depositor as to the course of action to be taken and
the Property Trustee shall take such action, or
refrain from taking such action, as the Property
Trustee shall be instructed in writing to take, or to
refrain from taking, by the Depositor; provided,
however, that if the Property Trustee does not
receive such instructions of the Depositor within 10
Business Days after it has delivered such notice, or
such reasonably shorter period of time set forth in
such notice (which to the extent practicable shall
not be less than 2 Business Days), it may, but shall
be under no duty to, take or refrain from taking such
action not inconsistent with this Trust Agreement as
it shall deem advisable and in the best interests of
the Securityholders, in which event the Property
Trustee shall have no liability except for its own
bad faith, negligence or willful misconduct;
(c) any direction or act of the Depositor or the
Administrative Trustees contemplated by this Trust
Agreement shall be sufficiently evidenced by an
Officers' Certificate;
(d) whenever in the administration of this Trust
Agreement, the Property Trustee shall deem it
desirable that a matter be established before
undertaking, suffering or omitting any action
hereunder, the Property Trustee (unless other
evidence is herein specifically prescribed) may, in
the absence of bad faith on its part, request and
conclusively rely upon an Officers' Certificate
which, upon receipt of such request, shall be
promptly delivered by the Depositor or the
Administrative Trustees;
(e) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument
(including any financing or continuation statement,
any filing under tax or securities laws or any filing
under tax or securities laws) or any rerecording,
refiling or reregistration thereof;
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(f) the Property Trustee may consult with counsel of its
choice (which counsel may be counsel to the Depositor
or any of its Affiliates) and the advice of such
counsel shall be full and complete authorization and
protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in
reliance thereon and, in accordance with such advice,
such counsel may be counsel to the Depositor or any
of its Affiliates, and may include any of its
employees; the Property Trustee shall have the right
at any time to seek instructions concerning the
administration of this Trust Agreement from any court
of competent jurisdiction;
(g) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by
this Trust Agreement at the request or direction of
any of the Securityholders pursuant to this Trust
Agreement, unless such Securityholders shall have
offered to the Property Trustee reasonable security
or indemnity against the costs, expenses and
liabilities which might be incurred by it in
compliance with such request or direction; nothing
contained herein shall, however, relieve the Property
Trustee of the obligation, upon the occurrence of any
Event of Default (that has not been cured or waived)
to exercise such of the rights and powers vested in
it by this Trust Agreement, and to use the same
degree of care and skill in their exercise as a
prudent man would exercise or use under the
circumstances in the conduct of his own affairs;
(h) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order,
approval, bond, debenture, note or other evidence of
indebtedness or other paper or document, unless
requested in writing to do so by one or more
Securityholders, but the Property Trustee may make
such further inquiry or investigation into such facts
or matters as it may see fit;
(i) the Property Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder
either directly or by or through its agents or
attorneys, and the Property Trustee shall not be
liable for the default or misconduct of such other
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
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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.
804 Not Responsible for Recitals or Issuance of Securities.
The Recitals contained herein and in the Trust Securities Certificates
shall be taken as the statements of the Trust, and the Trustees do not assume
any responsibility for their correctness. The Trustees shall not be accountable
for the use or application by the Depositor of the proceeds of the Debentures.
805 May Hold Securities.
Any Trustee or any other agent of any Trustee or the Trust, in its
individual or any other capacity, may become the owner or pledgee of Trust
Securities and, subject to Sections 808 and 813 and except as provided in the
definition of the term "Outstanding" in Article I, may otherwise deal with the
Trust with the same rights it would have if it were not a Trustee or such other
agent.
806 Compensation; Indemnity; Fees.
The Depositor agrees:
(a) to pay to the Trustees from time to time 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
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
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Administrative Trustees or the Delaware Trustee, any
such expense, disbursement or advance as may be
attributable to its, his or her gross negligence, bad
faith or willful misconduct); and
(c) to indemnify each of the Trustees or any predecessor
Trustee for, and to hold the Trustees harmless
against, any loss, damage, claims, liability, penalty
or expense 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 for (or, in the case of
the Administrative Trustees or the Delaware Trustee,
any such expense, disbursement or advance as may be
attributable to its, his or her gross negligence, bad
faith or willful misconduct).
No Trustee may claim any Lien or charge on Trust Property as a result
of any amount due and unpaid pursuant to this Section 806.
807 Corporate Property Trustee Required; Eligibility of Trustees.
(a) There shall at all times be a Property Trustee
hereunder with respect to the Trust Securities. The
Property Trustee shall be a Person that is eligible
pursuant to the Trust Indenture Act to act as such
and has a combined capital and surplus of at least
$50,000,000. If any such Person publishes reports of
condition at least annually, pursuant to law or to
the requirements of its supervising or examining
authority, then for the purposes of this Section 807,
the combined capital and surplus of such Person shall
be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so
published. If at any time the Property Trustee with
respect to the Trust Securities shall cease to be
eligible in accordance with the provisions of this
Section 807, it shall resign immediately in the
manner and with the effect hereinafter specified in
this Article VIII. The Property Trustee and the
Delaware 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 person who is at least 21 years
of age or a legal entity that shall act through one
or more persons authorized to bind that entity.
(c) There shall at all times be a Delaware Trustee with
respect to the Trust Securities. The Delaware Trustee
shall either be (i) a natural person who is at least
21 years of age and a resident of the State of
Delaware; or (ii) a legal entity with its principal
place of business in the State of Delaware
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and that otherwise meets the requirements of
applicable Delaware law that shall act through one or
more persons authorized to bind such entity.
808 Conflicting Interests.
If the Property Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Property Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Trust
Agreement.
809 Co-Trustees and Separate Trustee.
(a) Unless a Debenture Event of Default shall have
occurred and be continuing, at any time or times, for
the purpose of meeting the legal requirements of the
Trust Indenture Act or of any jurisdiction in which
any part of the Trust Property may at the time be
located, the Depositor shall have power to appoint,
and upon the written request of the Property Trustee,
the Depositor shall for such purpose join with the
Property Trustee in the execution, delivery and
performance of all instruments and agreements
necessary or proper to appoint, one or more Persons
approved by the Property Trustee either to act as
co-trustee, jointly with the Property Trustee, of all
or any part of such Trust Property, or to the extent
required by law to act as separate trustee of any
such property, in either case with such powers as may
be provided in the instrument of appointment, and to
vest in such Person or Persons in the capacity
aforesaid, any property, title, right or power deemed
necessary or desirable, subject to the other
provisions of this Section 809. If the Depositor does
not join in such appointment within 15 days after the
receipt by it of a request so to do, or in case a
Debenture Event of Default has occurred and is
continuing, the Property Trustee alone shall have
power to make such appointment. Any co-trustee or
separate trustee appointed pursuant to this Section
809 shall either be (i) a natural person who is at
least 21 years of age and a resident of the United
States; or (ii) a legal entity with its principal
place of business in the United States that shall act
through one or more persons authorized to bind such
entity.
(b) Should any written instrument from the Depositor be
required by any co-trustee or separate trustee so
appointed for more fully confirming to such
co-trustee or separate trustee such property, title,
right, or power, any and all such instruments shall,
on request, be executed, acknowledged, and delivered
by the Depositor.
(c) Every co-trustee or separate trustee shall, to the
extent permitted by law, but to such extent only, be
appointed subject to the following terms, namely:
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(i) The Trust Securities shall be executed and
delivered and all rights, powers, duties and
obligations hereunder in respect of the
custody of securities, cash and other
personal property held by, or required to be
deposited or pledged with, the Trustees
specified hereunder, shall be exercised,
solely by such Trustees and not by such
co-trustee or separate trustee.
(ii) The rights, powers, duties and obligations
hereby conferred or imposed upon the
Property Trustee in respect of any property
covered by such appointment shall be
conferred or imposed upon and exercised or
performed by the Property Trustee or by the
Property Trustee and such co-trustee or
separate trustee jointly, as shall be
provided in the instrument appointing such
co-trustee or separate trustee, except to
the extent that under any law of any
jurisdiction in which any particular act is
to be performed, the Property Trustee shall
be incompetent or unqualified to perform
such act, in which event such rights,
powers, duties and obligations shall be
exercised and performed by such co-trustee
or separate trustee.
(iii) The Property Trustee at any time, by an
instrument in writing executed by it, with
the written concurrence of the Depositor,
may accept the resignation of or remove any
co-trustee or separate trustee appointed
under this Section 809, and, in case a
Debenture Event of Default has occurred and
is continuing, the Property Trustee shall
have the power to accept the resignation of,
or remove, any such co-trustee or separate
trustee without the concurrence of the
Depositor. Upon the written request of the
Property Trustee, the Depositor shall join
with the Property Trustee in the execution,
delivery and performance of all instruments
and agreements necessary or proper to
effectuate such resignation or removal. A
successor to any co-trustee or separate
trustee so resigned or removed may be
appointed in the manner provided in this
Section 809.
(iv) No co-trustee or separate trustee hereunder
shall be personally liable by reason of any
act or omission of the Property Trustee or
any other trustee hereunder.
(v) The Property Trustee shall not be liable by
reason of any act of a co-trustee or
separate trustee.
(vi) Any Act of Holders delivered to the Property
Trustee shall be deemed to have been
delivered to each such co-trustee and
separate trustee.
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810 Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of any Trustee (the
"Relevant Trustee") and no appointment of a successor
Trustee pursuant to this Article VIII shall become
effective until the acceptance of appointment by the
successor Trustee in accordance with the applicable
requirements of Section 811.
(b) Subject to the immediately preceding paragraph, the
Relevant Trustee may resign at any time with respect
to the Trust Securities by giving written notice
thereof to the Securityholders. If the instrument of
acceptance by the successor Trustee required by
Section 811 shall not have been delivered to the
Relevant Trustee within 30 days after the giving of
such notice of resignation, the Relevant Trustee may
petition, at the expense of the Depositor, any court
of competent jurisdiction for the appointment of a
successor Relevant Trustee with respect to the Trust
Securities.
(c) Unless a Debenture Event of Default shall have
occurred and be continuing, any Trustee may be
removed at any time by Act of the Common
Securityholder. If a Debenture Event of Default shall
have occurred and be continuing, the Property Trustee
or the Delaware Trustee, or both of them, may be
removed at such time by Act of the Holders of a
majority in Liquidation Amount of the Preferred
Securities, delivered to the Relevant Trustee (in its
individual capacity and on behalf of the Trust). An
Administrative Trustee may be removed by the Common
Securityholder at any time.
(d) If any Trustee shall resign, be removed or become
incapable of acting as Trustee, or if a vacancy shall
occur in the office of any Trustee for any cause, at
a time when no Debenture Event of Default shall have
occurred and be continuing, the Common
Securityholder, by Act of the Common Securityholder
delivered to the retiring Trustee, shall promptly
appoint a successor Trustee or Trustees with respect
to the Trust Securities and the Trust, and the
successor Trustee shall comply with the applicable
requirements of Section 811. If the Property Trustee
or the Delaware Trustee shall resign, be removed or
become incapable of continuing to act as the Property
Trustee or the Delaware Trustee, as the case may be,
at a time when a Debenture Event of Default shall
have occurred and is continuing, the Preferred
Securityholders, by Act of the Securityholders of a
majority in Liquidation Amount of the Preferred
Securities then Outstanding delivered to the retiring
Relevant Trustee, shall promptly appoint a successor
Relevant Trustee or Trustees with respect to the
Trust Securities and the Trust, and such successor
Trustee shall comply with the applicable requirements
of Section 811. If an Administrative Trustee shall
resign, be removed or become incapable of acting as
Administrative Trustee, at a time when a Debenture
Event of Default shall have occurred and be
continuing, the Common Securityholder, by Act of the
Common Securityholder delivered to an Administrative
Trustee, shall promptly
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appoint a successor Administrative Trustee or
Administrative Trustees with respect to the Trust
Securities and the Trust, and such successor
Administrative Trustee or Administrative Trustees
shall comply with the applicable requirements of
Section 811. If no successor Relevant Trustee with
respect to the Trust Securities shall have been so
appointed by the Common Securityholder or the
Preferred Securityholders and accepted appointment in
the manner required by Section 811, any
Securityholder who has been a Securityholder of Trust
Securities on behalf of himself and all others
similarly situated may petition a court of competent
jurisdiction for the appointment of a Trustee with
respect to the Trust Securities.
(e) The Property Trustee shall give notice of each
resignation and each removal of a Trustee and each
appointment of a successor Trustee to all
Securityholders in the manner provided in Section
1008 and shall give notice to the Depositor. Each
notice shall include the name of the successor
Relevant Trustee and the address of its Corporate
Trust office if it is the Property Trustee.
(f) Notwithstanding the foregoing or any other provision
of this Trust Agreement, in the event any
Administrative Trustee or a Delaware Trustee who is a
natural person dies or becomes, in the opinion of the
Depositor, incompetent or incapacitated, the vacancy
created by such death, incompetence or incapacity may
be filled by (a) the unanimous act of remaining
Administrative Trustees if there are at least two of
them; or (b) otherwise by the Depositor (with the
successor in each case being a Person who satisfies
the eligibility requirement for Administrative
Trustees set forth in Section 807).
811 Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Relevant Trustee with respect to the Trust Securities
and the Trust, the retiring Relevant Trustee and each
successor Relevant Trustee with respect to the Trust
Securities shall execute and deliver an instrument
hereto wherein each successor Relevant Trustee shall
accept such appointment and which shall contain such
provisions as shall be necessary or desirable to
transfer and confirm to, and to vest in, each
successor Relevant Trustee all the rights, powers,
trusts and duties of the retiring Relevant Trustee
with respect to the Trust Securities and the Trust
and upon the execution and delivery of such
instrument the resignation or removal of the retiring
Relevant Trustee shall become effective to the extent
provided therein and each such successor Relevant
Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers,
trusts and duties of the retiring Relevant Trustee
with respect to the Trust Securities and the Trust;
but, on request of the Trust or any successor
Relevant Trustee such retiring Relevant Trustee shall
duly assign, transfer and deliver to such successor
Relevant Trustee all Trust Property, all proceeds
thereof and money held
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by such retiring Relevant Trustee hereunder with
respect to the Trust Securities and the Trust.
(b) Upon request of any such successor Relevant Trustee,
the Trust shall execute any and all instruments for
more fully and certainly vesting in and confirming to
such successor Relevant Trustee all such rights,
powers and trusts referred to in the immediately
preceding paragraph, as the case may be.
(c) No successor Relevant Trustee shall accept its
appointment unless at the time of such acceptance
such successor Relevant Trustee shall be qualified
and eligible under this Article VIII.
812 Merger, Conversion, Consolidation or Succession to Business.
Any Person into which the Property Trustee, the Delaware Trustee or any
Administrative Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which such Relevant Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of such Relevant Trustee, shall be the successor of such Relevant Trustee
hereunder, provided such Person shall be otherwise qualified and eligible under
this Article VIII, without the execution or filing of any paper or any further
act on the part of any of the parties hereto.
813 Preferential Collection of Claims Against Depositor or Trust.
If and when the Property Trustee or the Delaware Trustee shall be or
become a creditor of the Depositor or the Trust (or any other obligor upon the
Debentures or the Trust Securities), the Property Trustee or the Delaware
Trustee, as the case may be, shall be subject to and shall take all actions
necessary in order to comply with the provisions of the Trust Indenture Act
regarding the collection of claims against the Depositor or Trust (or any such
other obligor).
814 Reports by Property Trustee.
(a) On or before July 31 of each year, commencing July
31, 2002, the Property Trustee shall transmit to the
Securityholders such reports concerning the Property
Trustee, its actions under this Trust Agreement and
the property and funds in its possession in its
capacity as the Property Trustee as may be required
pursuant to the Trust Indenture Act in the manner
provided pursuant thereto.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Property
Trustee with the Nasdaq National Market, and each
national securities exchange or other organization
upon which the Trust Securities are listed, and also
with the Commission and the Depositor.
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815 Reports to the Property Trustee.
The Depositor and the Administrative Trustees on behalf of the Trust
shall provide to the Property Trustee such documents, reports and information as
required by Section 314 of the Trust Indenture Act (if any) and the compliance
certificate required by Section 314(a) of the Trust Indenture Act in the form,
in the manner and at the times required by Section 314 of the Trust Indenture
Act.
816 Evidence of Compliance with Conditions Precedent.
Each of the Depositor and the Administrative Trustees on behalf of the
Trust shall provide to the Property Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Trust Agreement that relate
to any of the matters set forth in Section 314(c) of the Trust Indenture Act.
Any certificate or opinion required to be given by an officer pursuant to
Section 314(c)(1) of the Trust Indenture Act shall be given in the form of an
Officers' Certificate.
817 Number of Trustees.
(a) The number of Trustees shall be five, provided that
the Holder of all of the Common Securities by written
instrument may increase or decrease the number of
Administrative Trustees. The Property Trustee and the
Delaware Trustee may be the same Person.
(b) If a Trustee ceases to hold office for any reason and
the number of Administrative Trustees is not reduced
pursuant to Section 817(a), or if the number of
Trustees is increased pursuant to Section 817(a), a
vacancy shall occur. The vacancy shall be filled with
a Trustee appointed in accordance with Section 810.
(c) The death, resignation, retirement, removal,
bankruptcy, incompetence or incapacity to perform the
duties of a Trustee shall not operate to annul the
Trust. Whenever a vacancy in the number of
Administrative Trustees shall occur, until such
vacancy is filled by the appointment of an
Administrative Trustee in accordance with Section
810, the Administrative Trustees in office,
regardless of their number (and notwithstanding any
other provision of this Agreement), shall have all
the powers granted to the Administrative Trustees and
shall discharge all the duties imposed upon the
Administrative Trustees by this Trust Agreement.
818 Delegation of Power.
(a) Any Administrative Trustee may, by power of attorney
consistent with applicable law, delegate to any other
natural person over the age of 21 his or her power
for the purpose of executing any documents
contemplated in Section 207(a); and
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(b) The Administrative Trustees shall have power to
delegate from time to time to such of their number or
to the Depositor the doing of such things and the
execution of such instruments either in the name of
the Trust or the names of the Administrative Trustees
or otherwise as the Administrative Trustees may deem
expedient, to the extent such delegation is not
prohibited by applicable law or contrary to the
provisions of the Trust, as set forth herein.
819 Voting.
Except as otherwise provided in this Trust Agreement, the consent or
approval of the Administrative Trustees shall require consent or approval by not
less than a majority of the Administrative Trustees, unless there are only two,
in which case both must consent.
IX TERMINATION, LIQUIDATION AND MERGER
901 Termination Upon Expiration Date.
Unless earlier dissolved, the Trust shall automatically dissolve on,
December 31, 2031 (the "Expiration Date") subject to distribution of the Trust
Property in accordance with Section 904.
902 Early Termination.
The first to occur of any of the following events is an "Early
Termination Event:"
(a) the occurrence of a Bankruptcy Event in respect of,
or the dissolution or liquidation of, the Depositor;
(b) delivery of written direction to the Property Trustee
by the Depositor at any time (which direction is
wholly optional and within the discretion of the
Depositor, subject to Depositor having received prior
approval of the Board of Governors of the Federal
Reserve System if so required under applicable law,
guidelines, policies or regulations thereof) to
dissolve the Trust and distribute the Debentures to
Securityholders in exchange for the Preferred
Securities in accordance with Section 904;
(c) the redemption of all of the Preferred Securities in
connection with the redemption of all of the
Debentures (whether upon a Debenture Redemption Date
or the maturity of the Debenture); or
(d) an order for dissolution of the Trust shall have been
entered by a court of competent jurisdiction.
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903 Termination.
The respective obligations and responsibilities of the Trustees and the
Trust created and continued hereby shall terminate upon the latest to occur of
the following: (a) the distribution by the Property Trustee to Securityholders
upon the liquidation of the Trust pursuant to Section 904, or upon the
redemption of all of the Trust Securities pursuant to Section 402, of all
amounts required to be distributed hereunder upon the final payment of the Trust
Securities; (b) the payment of any expenses owed by the Trust; (c) the discharge
of all administrative duties of the Administrative Trustees, including the
performance of any tax reporting obligations with respect to the Trust or the
Securityholders; and (d) the filing of a Certificate of Cancellation by an
Administrative Trustee under the Delaware Business Trust Act.
904 Liquidation.
(a) If an Early Termination Event specified in clause
(a), (b), or (d) of Section 902 occurs or upon the
Expiration Date, the Trust shall be liquidated by the
Trustees as expeditiously as the Trustees determine
to be possible by distributing, after satisfaction of
liabilities to creditors of the Trust as provided by
applicable law, to each Securityholder a Like Amount
of Debentures, subject to Section 904(d). Notice of
liquidation shall be given by the Property Trustee by
first-class mail, postage prepaid, mailed not later
than 30 nor more than 60 days prior to the
Liquidation Date to each Holder of Trust Securities
at such Holder's address appearing in the Securities
Register. All notices of liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation
Date, the Trust Securities shall no longer
be deemed to be Outstanding and any Trust
Securities Certificates not surrendered for
exchange shall be deemed to represent a Like
Amount of Debentures; and
(iii) provide such information with respect to the
mechanics by which Holders may exchange
Trust Securities Certificates for
Debentures, or, if Section 904(d) applies,
receive a Liquidation Distribution, as the
Administrative Trustees or the Property
Trustee shall deem appropriate.
(b) Except where Section 902(c) or 904(d) applies, in
order to effect the liquidation of the Trust and
distribution of the Debentures to Securityholders,
the Property Trustee shall establish a record date
for such distribution (which shall be not more than
45 days prior to the Liquidation Date) and, either
itself acting as exchange agent or through the
appointment of a separate exchange agent, shall
establish such procedures as it shall deem
appropriate to effect the distribution of Debentures
in exchange for the Outstanding Trust Securities
Certificates.
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(c) Except where Section 902(c) or 904(d) applies, after
the Liquidation Date, (i) the Trust Securities shall
no longer be deemed to be outstanding; (ii)
certificates representing a Like Amount of Debentures
shall be issued to Holders of Trust Securities
Certificates upon surrender of such certificates to
the Administrative Trustees or their agent for
exchange; (iii) the Depositor shall use its
reasonable efforts to have the Debentures listed on
the Nasdaq National Market or on such other
securities exchange or other organization as the
Preferred Securities are then listed or traded; (iv)
any Trust Securities Certificates not so surrendered
for exchange shall be deemed to represent a Like
Amount of Debentures, accruing interest at the rate
provided for in the Debentures from the last
Distribution Date on which a Distribution was made on
such Trust Securities Certificates until such
certificates are so surrendered (and until such
certificates are so surrendered, no payments of
interest or principal shall be made to Holders of
Trust Securities Certificates with respect to such
Debentures); and (v) all rights of Securityholders
holding Trust Securities shall cease, except the
right of such Securityholders to receive Debentures
upon surrender of Trust Securities Certificates.
(d) In the event that, notwithstanding the other
provisions of this Section 904, whether because of an
order for dissolution entered by a court of competent
jurisdiction or otherwise, distribution of the
Debentures in the manner provided herein is
determined by the Property Trustee not to be
practical, the Trust Property shall be liquidated,
and the Trust shall be dissolved, wound-up or
terminated, by the Property Trustee in such manner as
the Property Trustee determines. In such event, on
the date of the dissolution, winding-up or other
termination of the Trust, Securityholders shall be
entitled to receive out of the assets of the Trust
available for distribution to Securityholders, after
satisfaction of liabilities to creditors of the Trust
as provided by applicable law, an amount equal to the
Liquidation Amount per Trust Security plus
accumulated and unpaid Distributions thereon to the
date of payment (such amount being the "Liquidation
Distribution"). If, upon any such dissolution,
winding-up or termination, the Liquidation
Distribution can be paid only in part because the
Trust has insufficient assets available to pay in
full the aggregate Liquidation Distribution, then,
subject to the next succeeding sentence, the amounts
payable by the Trust on the Trust Securities shall be
paid on a pro rata basis (based upon Liquidation
Amounts). The Holder of the Common Securities shall
be entitled to receive Liquidation Distributions upon
any such dissolution, winding-up or termination pro
rata (determined as aforesaid) with Holders of
Preferred Securities, except that, if a Debenture
Event of Default has occurred and is continuing, the
Preferred Securities shall have a priority over the
Common Securities.
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905 Mergers, Consolidations, Conversions, Amalgamations or
Replacements of the Trust.
The Trust may not merge with or into, consolidate, convert, amalgamate,
or be replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other Person, except pursuant
to this Section 905. At the request of the Depositor, with the consent of the
Administrative Trustees and without the consent of the Holders of the Preferred
Securities, the Property Trustee or the Delaware Trustee, the Trust may merge
with or into, consolidate, convert, amalgamate, be replaced by or convey,
transfer or lease its properties and assets substantially as an entirety to a
trust organized as such under the laws of any state; provided, that (i) such
successor entity either (a) expressly assumes all of the obligations of the
Trust with respect to the Preferred Securities; or (b) substitutes for the
Preferred Securities other securities having substantially the same terms as the
Preferred Securities (the "Successor Securities) so long as the Successor
Securities rank the same as the Preferred Securities rank in priority with
respect to distributions and payments upon liquidation, redemption and
otherwise; (ii) the Depositor expressly appoints a trustee of such successor
entity possessing substantially the same powers and duties as the Property
Trustee as the holder of the Debentures; (iii) the Successor Securities are
listed or traded, or any Successor Securities shall be listed or traded upon
notification of issuance, on any national securities exchange or other
organization on which the Preferred Securities are then listed or quoted, if
any; (iv) such merger, consolidation, conversion, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights, preferences
and privileges of the holders of the Preferred Securities (including any
Successor Securities) in any material respect; (v) such successor entity has a
purpose substantially identical to that of the Trust; (vi) prior to such merger,
consolidation, conversion, amalgamation, replacement, conveyance, transfer or
lease, the Depositor has received an Opinion of Counsel to the effect that (a)
such merger, consolidation, conversion, amalgamation, replacement, conveyance,
transfer or lease does not adversely affect the rights, preferences and
privileges of the Holders of the Preferred Securities (including any Successor
Securities) in any material respect; and (b) following such merger,
consolidation, conversion, 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 (vii) the
Depositor owns all of the Common Securities of such successor entity and
guarantees the obligations of such successor entity under the Successor
Securities at least to the extent provided by the Guarantee, the Debentures,
this Trust Agreement and the Expense Agreement. For purposes of this Section
905, any such consolidation, merger, sale, conveyance, transfer or other
disposition as a result of which (a) the Company is not the surviving Person,
and (b) the same Person is not both (i) the primary obligor in respect of the
Debentures and (ii) the Guarantor under that certain Preferred Securities
Guarantee Agreement of even date herewith (the "Guarantee") between the Company
and Wilmington Trust Company, shall be deemed to constitute a replacement of the
Trust by a successor entity; provided further that, notwithstanding the
foregoing, in the event that upon the consummation of such a consolidation,
merger, sale, conveyance, transfer or other disposition, the parent company (if
any) of the Company, or its successor, is a bank holding company or financial
holding company or comparably regulated financial institution, such parent
company shall guarantee the obligations of the Trust (and any successor thereto)
under the Preferred Securities (including any Successor Securities) at least to
the extent provided by the Guarantee, the Debentures, the Trust Agreement and
the Expense
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Agreement. Notwithstanding the foregoing, the Trust shall not, except with the
consent of holders of 100% in Liquidation Amount of the Preferred Securities,
consolidate, amalgamate, convert, 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,
conversion 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.
X MISCELLANEOUS PROVISIONS
1001 Limitation of Rights of Securityholders.
The death or incapacity of any Person having an interest, beneficial or
otherwise, in Trust Securities shall not operate to terminate this Trust
Agreement, nor entitle the legal representatives or heirs of such Person or any
Securityholder for such Person, to claim an accounting, take any action or bring
any proceeding in any court for a partition or winding-up of the arrangements
contemplated hereby, nor otherwise affect the rights, obligations and
liabilities of the parties hereto or any of them.
1002 Amendment.
(a) This Trust Agreement may be amended from time to time
by the Trustees and the Depositor, without the
consent of any Securityholders, (i) as provided in
Section 811 with respect to acceptance of appointment
by a successor Trustee; (ii) to cure any ambiguity,
correct or supplement any provision herein or therein
which may be inconsistent with any other provision
herein or therein, or to make any other provisions
with respect to matters or questions arising under
this Trust Agreement, that shall not be inconsistent
with the other provisions of this Trust Agreement; or
(iii) to modify, eliminate or add to any provisions
of this Trust Agreement to such extent as shall be
necessary to ensure that the Trust shall be
classified for United States federal income tax
purposes as a grantor trust at all times that any
Trust Securities are outstanding or to ensure that
the Trust shall not be required to register as an
"investment company" under the Investment Company
Act; or (iv) to reduce or increase the Liquidation
Amount per Trust Security and simultaneously to
correspondingly increase or decrease the number of
Trust Securities issued and Outstanding solely for
the purpose of maintaining the eligibility of the
Preferred Securities for quotation or listing on any
national securities exchange or other organization on
which the Preferred Securities are then quoted or
listed (including, if applicable, the Nasdaq National
Market); 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 provided further, that in the
case of clause (iv) the aggregate Liquidation Amount
of the Trust Securities Outstanding upon completion
of any such reduction must be the same as the
aggregate Liquidation
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Amount of the Trust Securities Outstanding
immediately prior to such reduction or increase; and
any amendments of this Trust Agreement shall become
effective when notice thereof is given to the
Securityholders (or in the case of an amendment
pursuant to clause (iv), as of the date specified in
the notice).
(b) Except as provided in Section 601(c) or Section
1002(c) hereof, any provision of this Trust Agreement
may be amended by the Trustees and the Depositor (i)
with the consent of Trust Securityholders
representing at least a majority (based upon
Liquidation Amounts) of the Trust Securities then
Outstanding; and (ii) upon receipt by the Trustees of
an Opinion of Counsel to the effect that such
amendment or the exercise of any power granted to the
Trustees in accordance with such amendment shall not
affect the Trust's status as a grantor trust for
United States federal income tax purposes or the
Trust's exemption from status of an "investment
company" under the Investment Company Act.
(c) In addition to and notwithstanding any other
provision in this Trust Agreement, without the
consent of each affected Securityholder (such consent
being obtained in accordance with Section 603 or 606
hereof), this Trust Agreement may not be amended to
(i) change the amount or timing of any Distribution
on the Trust Securities or otherwise adversely affect
the amount of any Distribution required to be made in
respect of the Trust Securities as of a specified
date; or (ii) restrict the right of a Securityholder
to institute suit for the enforcement of any such
payment on or after such date; notwithstanding any
other provision herein, without the unanimous consent
of the Securityholders (such consent being obtained
in accordance with Section 603 or 606 hereof), this
paragraph (c) of this Section 1002 may not be
amended.
(d) Notwithstanding any other provisions of this Trust
Agreement, no Trustee shall enter into or consent to
any amendment to this Trust Agreement which would
cause the Trust to fail or cease to qualify for the
exemption from status of an "investment company"
under the Investment Company Act or to fail or cease
to be classified as a grantor trust for United States
federal income tax purposes.
(e) Notwithstanding anything in this Trust Agreement to
the contrary, without the consent of the Depositor,
this Trust Agreement may not be amended in a manner
which imposes any additional obligation on the
Depositor.
(f) In the event that any amendment to this Trust
Agreement is made, the Administrative Trustees shall
promptly provide to the Depositor a copy of such
amendment.
(g) Neither the Property Trustee nor the Delaware Trustee
shall be required to enter into any amendment to this
Trust Agreement which affects its own
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rights, duties or immunities under this Trust
Agreement. The Property Trustee shall be entitled to
receive an Opinion of Counsel and an Officers'
Certificate stating that any amendment to this Trust
Agreement has been effected in compliance with this
Trust Agreement.
1003 Separability.
In case any provision in this Trust Agreement or in the Trust
Securities Certificates shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
1004 Governing Law.
THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE
SECURITYHOLDERS, THE TRUST AND THE TRUSTEES WITH RESPECT TO THIS TRUST AGREEMENT
AND THE TRUST SECURITIES SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAWS OF THE STATE OF DELAWARE (WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES
THEREOF).
1005 Payments Due on Non-Business Day.
If the date fixed for any payment on any Trust Security shall be a day
that is not a Business Day, then such payment need not be made on such date but
may be made on the next succeeding day which is a Business Day, except 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.
1006 Successors.
This Trust Agreement shall be binding upon and shall inure to the
benefit of any successor to the Depositor, the Trust or the Relevant Trustee(s),
including any successor by operation of law. Except in connection with a
consolidation, merger or sale involving the Depositor that is permitted under
Article XII of the Indenture and pursuant to which the assignee agrees in
writing to perform the Depositor's obligations hereunder, the Depositor shall
not assign its obligations hereunder.
1007 Headings.
The Article and Section headings are for convenience only and shall not
affect the construction of this Trust Agreement.
1008 Reports, Notices and Demands.
Any report, notice, demand or other communication which by any
provision of this Trust Agreement is required or permitted to be given or served
to or upon any Securityholder or the Depositor may be given or served in writing
by deposit thereof, first-class postage prepaid, in the
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United States mail, hand delivery or facsimile transmission, in each case,
addressed, (a) in the case of a Preferred Securityholder, to such Preferred
Securityholder as such Securityholder's name and address may appear on the
Securities Register; and (b) in the case of the Common Securityholder or the
Depositor, to Second Bancorp Incorporated, 108 Main Avenue, S.W., P.O. Box 1311,
Warren, OH 44482-1311, Attention: Chief Financial Officer, facsimile no:
(330) 841 0750. Any notice to Preferred Securityholders shall also be given
to such owners as have, within two years preceding the giving of such notice,
filed their names and addresses with the Property Trustee for that purpose. Such
notice, demand or other communication to or upon a Securityholder shall be
deemed to have been sufficiently given or made, for all purposes, upon hand
delivery, mailing or transmission.
Any notice, demand or other communication which by any provision of
this Trust Agreement is required or permitted to be given or served to or upon
the Trust, the Property Trustee or the Administrative Trustees shall be given in
writing addressed (until another address is published by the Trust) as follows:
(a) with respect to the Property Trustee to Wilmington Trust Company, Rodney
Square North, 1100 North Market Street, Wilmington, Delaware 19890-0001,
Attention: Corporate Trust Administration; (b) with respect to the Delaware
Trustee, to Wilmington Trust Company at the above address; and (c) with respect
to 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 or the Property
Trustee shall be deemed to have been sufficiently given or made only upon actual
receipt of the writing by the Trust or the Property Trustee.
1009 Agreement Not to Petition.
Each of the Trustees and the Depositor agree for the benefit of the
Securityholders that, until at least one year and 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 1009, the Property Trustee agrees, for the benefit
of Securityholders, that at the expense of the Depositor (which expense shall be
paid prior to the filing), it shall file an answer with the bankruptcy court or
otherwise properly contest the filing of such petition by the Depositor 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 stopped and precluded therefrom. The provisions of
this Section 1009 shall survive the termination of this Trust Agreement.
1010 Trust Indenture Act; Conflict with Trust Indenture Act.
(a) This Trust Agreement is subject to the provisions of
the Trust Indenture Act that are required to be part
of this Trust Agreement and shall, to the extent
applicable, be governed by such provisions.
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(b) The Property Trustee shall be the only Trustee which
is a trustee for the purposes of the Trust Indenture
Act.
(c) If any provision hereof limits, qualifies or
conflicts with another provision hereof which is
required to be included in this Trust Agreement by
any of the provisions of the Trust Indenture Act,
such required provision shall control. If any
provision of this Trust Agreement modifies or
excludes any provision of the Trust Indenture Act
which may be so modified or excluded, the latter
provision shall be deemed to apply to this Trust
Agreement as so modified or to be excluded, as the
case may be.
(d) The application of the Trust Indenture Act to this
Trust Agreement shall not affect the nature of the
Securities as equity securities representing
undivided beneficial interests in the assets of the
Trust.
1011 Acceptance of Terms of Trust Agreement, Guarantee and Indenture.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN
BY OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY
SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL
ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN
SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT AND
AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE AND
THE INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST, SUCH
SECURITYHOLDER AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF THIS TRUST
AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND
SUCH SECURITYHOLDER AND SUCH OTHERS.
1012 Counterparts.
This Trust Agreement may be executed in any number of counterparts,
each of which when so executed and delivered shall be an original, and all of
which counterparts together shall constitute one and the same agreement.
1013 Exchange Act Obligations.
For so long as the Trust Securities shall remain Outstanding, Depositor
shall fulfill all reporting and filing obligations under the Securities Exchange
Act of 1934, as amended, as applicable to companies having a class of securities
registered under Section 12(b) or 12(g) thereunder.
[SIGNATURE PAGE FOLLOWS]
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Second Bancorp Incorporated
By: /s/ R.L. Blossom
-----------------------------------------------------------------------------
Name: R.L. (Rick) Blossom
Title: President
WILMINGTON TRUST COMPANY, as
Property Trustee
By: /s/ James P. Lawler
-----------------------------------------------------------------------------
Name: James P. Lawler
Title: Vice President
WILMINGTON TRUST COMPANY, as
Delaware Trustee
By: /s/ James P. Lawler
-----------------------------------------------------------------------------
Name: James P. Lawler
Title: Vice President
/s/ R.L. Blossom
- -----------------------------------
R.L. (Rick) Blossom,
as Administrative Trustee
/s/ David L. Kellerman
- -----------------------------------
David L. Kellerman,
as Administrative Trustee
/s/ Christopher Stanitz
- -----------------------------------
Christopher Stanitz,
as Administrative Trustee
-58-
EXHIBIT A
CERTIFICATE OF TRUST
THIS CERTIFICATE OF TRUST OF Second Bancorp CAPITAL TRUST I (the
"Trust") is being duly executed and filed by Wilmington Trust Company, a
Delaware banking corporation, R.L. (Rick) Blossom, David L. Kellerman and
Christopher Stanitz, each an individual, as trustees, to form a business trust
under the Delaware Business Trust Act (12 Del. C. Section 3801 et seq.) (the
"Act").
1. NAME. The name of the business trust formed hereby is Second Bancorp
Capital Trust I.
2. DELAWARE TRUSTEE. The name and business address of the trustee of the
Trust in the State of Delaware is Wilmington Trust Company, Rodney
Square North, 1100 North Market Street, Wilmington, Delaware
19890-0001, Attention: Corporate Trust Administration.
3. EFFECTIVE DATE. This Certificate of Trust shall be effective on
August 29, 2001.
---------------
IN WITNESS WHEREOF, the undersigned have executed this Certificate of
Trust in accordance with Section 3811(a)(1) of the Act.
WILMINGTON TRUST COMPANY, as
trustee
By:/s/Kathleen A. Pedelini
-----------------------------------------------------------------------------
Name: Kathleen A. Pedelini
-----------------------------------------------------------------
Title: Administrative Account Manager
----------------------------------------------------------------
/s/ R.L. Blossom, as Trustee
- ----------------
Name: R.L. (Rick) Blossom
/s/ David L. Kellerman, as Trustee
- ----------------------
Name: David L. Kellerman
/s/ Christopher Stanitz, as Trustee
- -----------------------
Name: Christopher Stanitz
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EXHIBIT B
THIS CERTIFICATE IS NOT TRANSFERABLE
CERTIFICATE NUMBER _____ NUMBER OF COMMON SECURITIES _____
CERTIFICATE EVIDENCING COMMON SECURITIES
OF
SECOND BANCORP CAPITAL TRUST I
COMMON SECURITIES
(LIQUIDATION AMOUNT $10 PER COMMON SECURITY)
SECOND BANCORP CAPITAL TRUST I, a statutory business trust created
under the laws of the State of Delaware (the "Trust"), hereby certifies that
SECOND BANCORP INCORPORATED (the "Holder") is the registered owner of
_______________ (__________) common securities of the Trust representing
undivided beneficial interests in the assets of the Trust and designated the
Common Securities (liquidation amount $10 per Common Security) (the "Common
Securities"). In accordance with Section 510 of the Trust Agreement (as defined
below), the Common Securities are not transferable and any attempted transfer
hereof shall be void. The designations, rights, privileges, restrictions,
preferences, and other terms and provisions of the Common Securities are set
forth in, and this certificate and the Common Securities represented hereby are
issued and shall in all respects be subject to the terms and provisions of, the
Amended and Restated Trust Agreement of the Trust dated as of September 28,
2001, as the same may be amended from time to time (the "Trust Agreement"),
including the designation of the terms of the Common Securities as set forth
therein. The Trust shall furnish a copy of the Trust Agreement to the Holder
without charge upon written request to the Trust at its principal place of
business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust has
executed this certificate this ___ day of ______________, 2001.
SECOND BANCORP CAPITAL TRUST I
By:
----------------------------------------------------------------------------
Name:
-----------------------------------------------------------------
Title:
----------------------------------------------------------------
-60-
EXHIBIT C
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT AS TO EXPENSES AND LIABILITIES (this "Agreement") dated as of
September 28, 2001, between SECOND BANCORP INCORPORATED, an Ohio corporation
(the "Company"), and SECOND BANCORP CAPITAL TRUST I, a Delaware business trust
(the "Trust").
RECITALS
WHEREAS, the Trust intends to issue its common securities (the "Common
Securities") to, and receive 9.00% Subordinated Debentures (the "Debentures")
from, the Company and to issue and sell Second Bancorp Capital Trust I 9.00%
Cumulative Trust Preferred Securities (the "Preferred Securities") with such
powers, preferences and special rights and restrictions as are set forth in the
Amended and Restated Trust Agreement of the Trust dated as of September 28,
2001, as the same may be amended from time to time (the "Trust Agreement");
WHEREAS, the Company shall directly or indirectly own all of the Common
Securities of the Trust and shall issue the Debentures;
NOW, THEREFORE, in consideration of the purchase by each holder of the
Preferred Securities, which purchase the Company hereby agrees shall benefit the
Company and which purchase the Company acknowledges shall be made in reliance
upon the execution and delivery of this Agreement, the Company, including in its
capacity as holder of the Common Securities, and the Trust hereby agree as
follows:
I
1.1 Guarantee by the Company.
Subject to the terms and conditions hereof, the Company, including in
its capacity as holder of the Common Securities, hereby irrevocably and
unconditionally guarantees to each person or entity to whom the Trust is now or
hereafter becomes indebted or liable (the "Beneficiaries") the full payment when
and as due, of any and all Obligations (as hereinafter defined) to such
Beneficiaries. As used herein, "Obligations" means any costs, expenses or
liabilities of the Trust other than obligations of the Trust to pay to holders
of any Preferred Securities or other similar interests in the Trust the amounts
due such holders pursuant to the terms of the Preferred Securities or such other
similar interests, as the case may be. This Agreement is intended to be for the
benefit of, and to be enforceable by, all such Beneficiaries, whether or not
such Beneficiaries have received notice hereof.
1.2 Term of Agreement.
This Agreement shall terminate and be of no further force and effect
upon the later of (a) the date on which full payment has been made of all
amounts payable to all holders of all the
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Preferred Securities (whether upon redemption, liquidation, exchange or
otherwise); and (b) the date on which there are no Beneficiaries remaining;
provided, however, that this Agreement shall continue to be effective or shall
be reinstated, as the case may be, if at any time any holder of Preferred
Securities or any Beneficiary must restore payment of any sums paid under the
Preferred Securities, under any obligation, under the Preferred Securities
Guarantee Agreement dated the date hereof by the Company and Wilmington Trust
Company as guarantee trustee or under this Agreement for any reason whatsoever.
This Agreement is continuing, irrevocable, unconditional and absolute.
1.3 Waiver of Notice.
The Company hereby waives notice of acceptance of this Agreement and of
any obligation to which it applies or may apply, and the Company hereby waives
presentment, demand for payment, protest, notice of nonpayment, notice of
dishonor, notice of redemption and all other notices and demands.
1.4 No Impairment.
The obligations, covenants, agreements and duties of the Company under
this Agreement shall in no way be affected or impaired by reason of the
happening from time to time of any of the following:
(a) the extension of time for the payment by the Trust of
all or any portion of the Obligations or for the
performance of any other obligation under, arising
out of, or in connection with, the Obligations;
(b) any failure, omission, delay or lack of diligence on
the part of the Beneficiaries to enforce, assert or
exercise any right, privilege, power or remedy
conferred on the Beneficiaries with respect to the
Obligations or any action on the part of the Trust
granting indulgence or extension of any kind; or
(c) the voluntary or involuntary liquidation,
dissolution, sale of any collateral, receivership,
insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement composition or
readjustment of debt of, or other similar proceedings
affecting, the Trust or any of the assets of the
Trust.
There shall be no obligation of the Beneficiaries to give notice to, or obtain
the consent of, the Company with respect to the happening of any of the
foregoing.
1.5 Enforcement.
A Beneficiary may enforce this Agreement directly against the Company,
and the Company waives any right or remedy to require that any action be brought
against the Trust or any other person or entity before proceeding against the
Company.
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II
2.1 Binding Effect.
All guarantees and agreements contained in this Agreement shall bind
the successors, assigns, receivers, trustees and representatives of the Company
and shall inure to the benefit of the Beneficiaries.
2.2 Amendment.
So long as there remains any Beneficiary or any Preferred Securities of
any series are outstanding, this Agreement shall not be modified or amended in
any manner adverse to such Beneficiary or to any of the holders of the Preferred
Securities.
2.3 Notices.
Any notice, request or other communication required or permitted to be
given hereunder shall be given in writing by delivering the same by facsimile
transmission (confirmed by mail), telex, or by registered or certified mail,
addressed as follows (and if so given, shall be deemed given when mailed or upon
receipt of an answer back, if sent by facsimile):
Second Bancorp Capital Trust I
c/o Second Bancorp Incorporated
108 Main Avenue, S.W.
P.O. Box 1311
Warren, OH 44482-1311
Facsimile: (330) 841-0750
Attention: Christopher Stanitz, Administrative Trustee
Second Bancorp Incorporated
108 Main Avenue, S.W.
P.O. Box 1311
Warren, OH 44482-1311
Facsimile: (330) 841-0750
Attention: Chief Financial Officer
2.4 This agreement shall be governed by and construed and
interpreted in accordance with the laws of the State of Ohio
(without regard to conflict of laws principles).
-63-
THIS AGREEMENT is executed as of the day and year first above written.
SECOND BANCORP INCORPORATED
By:
----------------------------------------------------------------------------
Name: R.L. (Rick) Blossom
Title: President
SECOND BANCORP CAPITAL TRUST I
By: , as Trustee
------------------------
Name:
-64-
EXHIBIT D
CERTIFICATE NUMBER _____ NUMBER OF PREFERRED SECURITIES_____
CERTIFICATE EVIDENCING PREFERRED SECURITIES
OF
SECOND BANCORP CAPITAL TRUST I
9.00% CUMULATIVE TRUST PREFERRED SECURITIES
(LIQUIDATION AMOUNT $10 PER PREFERRED SECURITY)
CUSIP NO. 81311X 20 0
Second Bancorp Capital Trust I, a statutory business trust created
under the laws of the State of Delaware (the "Trust"), hereby certifies that
________________ (the "Holder") is the registered owner of _____ preferred
securities of the Trust representing undivided beneficial interests in the
assets of the Trust and designated the 9.00% Cumulative Trust Preferred
Securities (liquidation amount $10 per Preferred Security) (the "Preferred
Securities"). The Preferred Securities are transferable on the books and records
of the Trust, in person or by a duly authorized attorney, upon surrender of this
Certificate duly endorsed and in proper form for transfer as provided in Section
504 of the Trust Agreement (as defined herein). The designations, rights,
privileges, restrictions, preferences, and other terms and provisions of the
Preferred Securities are set forth in, and this Certificate and the Preferred
Securities represented hereby are issued and shall in all respects be subject to
the terms and provisions of, the Amended and Restated Trust Agreement of the
Trust dated as of September 28, 2001, as the same may be amended from time to
time (the "Trust Agreement"), including the designation of the terms of
Preferred Securities as set forth therein. The Holder is entitled to the
benefits of the Preferred Securities Guarantee Agreement entered into by Second
Bancorp Incorporated, an Ohio corporation, and Wilmington Trust Company as
guarantee trustee, dated as of September 28, 2001, as the same may be amended
from time to time (the "Guarantee"), to the extent provided therein. The Trust
shall furnish a copy of the Trust Agreement and the Guarantee to the Holder
without charge upon written request to the Trust at its principal place of
business or registered office.
Upon receipt of this Certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
Unless the Certificate of Authentication has been manually executed by
the Authentication Agent, this Certificate is not valid or effective.
-65-
IN WITNESS WHEREOF, the Administrative Trustees of the Trust have
executed this Certificate this ___ day of _______ 20__.
Second Bancorp CAPITAL TRUST I
By:
----------------------------------------------------------------------------
R.L. (Rick) Blossom
By:
----------------------------------------------------------------------------
David L. Kellerman
By:
----------------------------------------------------------------------------
Christopher Stanitz
-66-
LEGEND
FOR CERTIFICATES EVIDENCING
GLOBAL PREFERRED SECURITIES ONLY:
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York
corporation ("DTC"), to Issuer or its agent for registration
of transfer, exchange, or payment, and any certificate issued
is registered in the name of Cede & Co. or in such other name
as is requested by an authorized representative of DTC (and
any payment is made to Cede & Co. or to such other entity as
is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
-67-
[FORM OF REVERSE OF CERTIFICATE]
The Trust will furnish without charge to any registered owner of
Preferred Securities who so requests, a copy of the Trust Agreement and the
Guarantee. Any such request should be in writing and addressed to Second Bancorp
Capital Trust I, c/o Secretary, Second Bancorp Incorporated, 108 Main Street,
S.W., P.O. Box 1311, Warren, Ohio 44481-1311, or to the Registrar named on the
face of this Certificate.
The following abbreviations, when used in the inscription on the face
of this Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
<Table>
TEN COM -- as tenants in common UNIF GIFT MIN ACT -- under Uniform Gift
TEN ENT -- as tenants by the entireties to Minors Act and
JT TEN -- as joint tenants with right not as tenants
of survival
</Table>
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
(Please insert social security or other identifying number of assignee)
(insert address and zip code of assignee)
the within Certificate and all rights and interests represented by the Preferred
Securities evidenced thereby, and hereby irrevocably constitutes and appoints
______________________________________________________________________ attorney
to transfer the said Preferred Securities on the books of the within-named Trust
with full power
of
substitution in the premises.
Dated: _______________________ Signature:
----------------------------
Note: The signature(s) to
this assignment must
correspond with the
name(s) as written upon
the face of this
Certificate in every
particular, without
alteration or enlargement,
or any change whatever.
Signature(s) Guaranteed:
- ---------------------------------
NOTICE: Signature(s) must be guaranteed
by an "eligible guarantor institution"
that is a member or participant in a
"signature guarantee program" (i.e., the
Securities Transfer Agents Medallion Program,
the Stock Exchange Medallion Program or
the New York Stock Exchange, Inc. Medallion
Signature Program).
-68-
EXHIBIT E
FORM OF PREFERRED SECURITIES CERTIFICATE AUTHENTICATION
This is one of the 9.00% Cumulative Trust Preferred Securities referred
to in the within-mentioned Amended and Restated Trust Agreement.
WILMINGTON TRUST COMPANY,
as Authentication Agent and Registrar
By:
----------------------------------------------------------------------------
AUTHORIZED SIGNATURE
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