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Exhibit 4.3
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AMENDED AND RESTATED DECLARATION OF TRUST
PROVIDENT CAPITAL TRUST I
Dated as of November 27, 1996
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TABLE OF CONTENTS
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ARTICLE 1
INTERPRETATION AND DEFINITIONS........................................ 1
Section 1.1 Interpretation and Definitions............................................................ 1
Common Securities Holder............................................................................... 3
Common Security Certificate............................................................................ 3
Depositary............................................................................................. 3
DWAC .............................................................................................. 3
Euroclear.............................................................................................. 3
Initial Purchasers..................................................................................... 4
Institutional Accredited Investor...................................................................... 4
New Capital Securities................................................................................. 5
New Capital Security Certificate....................................................................... 5
Private Placement Legend............................................................................... 6
Regulation S........................................................................................... 7
Regulation S Global Security........................................................................... 7
Regulatory Capital Event............................................................................... 7
Restricted Global Security............................................................................. 7
Restricted Period...................................................................................... 7
Transfer Restricted Securities......................................................................... 9
Transfer Restricted Securities Certificate............................................................. 9
ARTICLE 2
TRUST INDENTURE ACT............................................. 9
Section 2.1 Trust Indenture Act; Application..................................................... 9
Section 2.2 Lists of Holders of Securities....................................................... 10
Section 2.3 Reports by the Property Trustee...................................................... 10
Section 2.4 Periodic Reports to the Property Trustee............................................. 10
Section 2.5 Evidence of Compliance with Conditions Precedent..................................... 10
Section 2.6 Trust Enforcement Events; Waiver..................................................... 11
Section 2.7 Trust Enforcement Event; Notice...................................................... 12
ARTICLE 3
ORGANIZATION................................................. 13
Section 3.1 Name and Organization................................................................ 13
Section 3.2 Office............................................................................... 13
Section 3.3 Purpose.............................................................................. 13
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Section 3.4 Authority............................................................................ 14
Section 3.5 Title to Property of the Trust....................................................... 14
Section 3.6 Powers and Duties of the Regular Trustees............................................ 14
Section 3.7 Prohibition of Actions by the Trust and the Trustees................................. 17
Section 3.8 Powers and Duties of the Property Trustee............................................ 19
Section 3.9 Certain Duties and Responsibilities of the Property Trustee.......................... 20
Section 3.10 Certain Rights of Property Trustee................................................... 22
Section 3.11 Delaware Trustee..................................................................... 25
Section 3.12 Execution of Documents............................................................... 25
Section 3.13 Not Responsible for Recitals or Issuance of Securities............................... 25
Section 3.14 Duration of Trust.................................................................... 26
Section 3.15 Mergers.............................................................................. 26
Section 3.16 Property Trustee May File Proofs of Claim............................................ 28
ARTICLE 4
SPONSOR................................................... 28
Section 4.1 Responsibilities of the Sponsor...................................................... 28
Section 4.2 Compensation, Indemnification and Expenses of the Trustee............................ 29
ARTICLE 5
COMMON SECURITIES HOLDER........................................... 30
Section 5.1 Company's Purchase of Common Securities.............................................. 30
Section 5.2 Covenants of the Common Securities Holder............................................ 30
ARTICLE 6
TRUSTEES................................................... 30
Section 6.1 Number of Trustees................................................................... 30
Section 6.2 Delaware Trustee..................................................................... 31
Section 6.3 Property Trustee; Eligibility........................................................ 31
Section 6.4 Qualifications of Regular Trustees and Delaware Trustee
Generally............................................................................ 32
Section 6.5 Initial Trustees..................................................................... 32
Section 6.6 Appointment, Removal and Resignation of Trustees..................................... 32
Section 6.7 Vacancies among Trustees............................................................. 33
Section 6.8 Effect of Vacancies.................................................................. 34
Section 6.9 Meetings............................................................................. 34
Section 6.10 Delegation of Power.................................................................. 34
Section 6.11 Merger, Conversion, Consolidation or Succession to Business.......................... 35
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ARTICLE 7
SECURITIES.................................................. 35
Section 7.1 General Provisions Regarding Securities.............................................. 35
Section 7.2 Distributions........................................................................ 37
Section 7.3 Redemption of Securities............................................................. 38
Section 7.4 Redemption Procedures................................................................ 39
Section 7.5 Voting Rights of Capital Securities.................................................. 40
Section 7.6 Voting Rights of Common Securities................................................... 42
Section 7.7 Paying Agent......................................................................... 44
Section 7.8 Transfer of Securities............................................................... 44
Section 7.9 Mutilated, Destroyed, Lost or Stolen Certificates.................................... 45
Section 7.10 Deemed Security Holders.............................................................. 46
Section 7.11 Global Securities.................................................................... 46
Section 7.12 Restrictive Legend................................................................... 48
Section 7.13 Special Transfer Provisions.......................................................... 50
ARTICLE 8
DISSOLUTION AND TERMINATION OF TRUST..................................... 53
Section 8.1 Dissolution and Termination of Trust................................................. 53
Section 8.2 Liquidation Distribution Upon Termination and Dissolution of
the Trust............................................................................ 54
ARTICLE 9
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS.................................. 55
Section 9.1 Liability............................................................................ 55
Section 9.2 Exculpation.......................................................................... 55
Section 9.3 Fiduciary Duty....................................................................... 56
Section 9.4 Indemnification...................................................................... 57
Section 9.5 Outside Businesses................................................................... 59
ARTICLE 10
ACCOUNTING.................................................. 59
Section 10.1 Fiscal Year.......................................................................... 59
Section 10.2 Certain Accounting Matters........................................................... 60
Section 10.3 Banking.............................................................................. 60
Section 10.4 Withholding.......................................................................... 60
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ARTICLE 11
AMENDMENTS AND MEETINGS........................................... 61
Section 11.1 Amendments........................................................................... 61
Section 11.2 Meetings of the Holders of Securities; Action by Written
Consent.............................................................................. 63
ARTICLE 12
REPRESENTATIONS OF PROPERTY TRUSTEE
AND DELAWARE TRUSTEE............................................. 65
Section 12.1 Representations and Warranties of the Property Trustee............................... 65
Section 12.2 Representations and Warranties of the Delaware Trustee............................... 65
ARTICLE 13
MISCELLANEOUS................................................ 66
Section 13.1 Notices.............................................................................. 66
Section 13.2 Governing Law........................................................................ 67
Section 13.3 Intention of the Parties............................................................. 67
Section 13.4 Headings............................................................................. 67
Section 13.5 Successors and Assigns............................................................... 68
Section 13.6 Partial Enforceability............................................................... 68
Section 13.7 Counterparts......................................................................... 68
Section 13.8 Undertaking for Costs................................................................ 68
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AMENDED AND RESTATED DECLARATION OF TRUST
THIS AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration") dated as of
November 27, 1996 between Provident Bancorp, Inc., an Ohio corporation, as
Sponsor, and Allen L. Davis, John R. Farrenkopf and Mark E. Magee, as the
initial Regular Trustees, The Bank of New York, as the initial Property Trustee
and The Bank of New York (Delaware) as the initial Delaware Trustee, not in
their individual capacities but solely as Trustees, and the holders, from time
to time, of undivided beneficial ownership interests in the Trust to be issued
pursuant to this Declaration.
WHEREAS, the Trustees and the Sponsor established Provident Capital Trust I
(the "Trust"), a statutory business trust under the Business Trust Act (as
defined, together with other capitalized terms, herein) pursuant to a
Declaration of Trust dated as of October 31, 1996 (the "Original Declaration")
and a Certificate of Trust (the "Certificate of Trust") filed with the Secretary
of State of the State of Delaware on October 31, 1996; and
WHEREAS, the sole purpose of the Trust shall be to issue and sell certain
securities representing undivided beneficial ownership interests in the assets
of the Trust, to invest the proceeds from such sales in the Debentures issued by
the Company and to engage in only those activities necessary or incidental
thereto; and
WHEREAS, all of the Trustees and the Sponsor, by this Declaration, amend
and restate each and every term and provision of the Original Declaration.
NOW, THEREFORE, it being the intention of the parties hereto that the Trust
constitute a business trust under the Business Trust Act, the Trustees hereby
declare that all assets contributed to the Trust be held in trust for the
benefit of the Holders, from time to time, of the Securities representing
undivided beneficial ownership interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.
ARTICLE 1
INTERPRETATION AND DEFINITIONS
Section 1.1 Interpretation and Definitions.
Unless the context otherwise requires:
(a) capitalized terms used in this Declaration but not defined in the
preamble above have the respective meanings assigned to them in this
Section 1.1;
(b) a term defined anywhere in this Declaration has the same meaning
throughout;
(c) all references to "the Declaration" or "this Declaration" are to this
Declaration as modified, supplemented or amended from time to time;
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(d) all references in this Declaration to Articles and Sections are to
Articles and Sections of this Declaration unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning when
used in this Declaration unless otherwise defined in this Declaration or unless
the context otherwise requires; and
(f) a reference to the singular includes the plural and vice versa and a
reference to the masculine form of a term includes, as applicable, the feminine
form of such term.
"Affiliate" has the same meaning as given to that term in Rule 405 of the
Securities Act or any successor rule thereunder.
"Authorized Officer" of a Person means any Person that is expressly
authorized to bind such Person.
"Business Day" has the same meaning as given to that term in the Indenture.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware Code, 12
Del. Code Section 3801 et seq., as it may be amended from time to time, or any
successor legislation.
"Capital Security" has the meaning specified in Section 7.1.
"Capital Security Certificate" means a certificate representing a Capital
Security.
"Cedel" means Cedel, S.A.
"Certificate" means a Common Security Certificate or a Capita Security
Certificate.
"Certificate of Trust" has the meaning specified in the recitals hereto.
"Closing Date" means the date on which the Capital Securities are issued
and sold.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, or any successor legislation. A reference to a specific section of the
Code refers not only to such specific section but also to any corresponding
provision of any federal tax statute enacted after the date of this Declaration,
as such specific section or corresponding provision is in effect on the date of
application of the provisions of this Declaration containing such reference.
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"Commission" means the Securities and Exchange Commission.
"Common Securities Holder" means Provident Bancorp, Inc. in its capacity as
purchaser and holder of all of the Common Securities issued by the Trust.
"Common Security" has the meaning specified in Section 7.1.
"Common Security Certificate" means a definitive certificate in fully
registered form representing a Common Security.
"Company" means Provident Bancorp, Inc. in its capacity as issuer of the
Debentures under the Indenture.
"Company Indemnified Person" means (a) any Regular Trustee; (b) any
Affiliate of any Regular Trustee; (c) any officers, directors, shareholders,
members, partners, employees, representatives or agents of any Regular Trustee
or any Affiliate thereof; or (d) any officer, employee or agent of the Trust or
its Affiliates.
"Corporate Trust Office" means the office of the Property Trustee at which
the corporate trust business of the Property Trustee shall, at any particular
time, be principally administered, which office at the date of execution of this
Declaration is located at 101 Barclay Street, 21st Floor West, New York, New
York 10286 Attention: Corporate Trust Administration; telecopy no. (212)
815-5595.
"Covered Person" means (a) any officer, director, shareholder, partner,
member, representative, employee or agent of (i) the Trust or (ii) the Trust's
Affiliates; and (b) any Holder of Securities.
"Debentures" means the Securities (as defined in the Indenture) to be
issued by the Company and to be held by the Property Trustee.
"Delaware Trustee" has the meaning set forth in Section 6.2.
"Depositary" means, with respect to Securities issuable in whole or in part
in the form of one or more Global Securities, a clearing agency registered under
the Exchange Act that is designated to act as Depositary for such Securities.
"Distribution" means a distribution payable to Holders of Securities in
accordance with Section .
"DTC" means The Depository Trust Company, the initial Clearing Agency.
"DWAC" means Deposit and Withdrawal At Custodian Service.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
office, as operator of the Euroclear System.
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"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time, or any successor legislation.
"Federal Reserve" means the Board of Governors of the Federal Reserve
System.
"Fiduciary Indemnified Person" has the meaning set forth in Section 9.4(b).
"Fiscal Year" has the meaning set forth in Section 10.1.
"Global Security" has the meaning set forth in Section 7.11.
"Guarantee" means the guarantee agreement of the Sponsor in respect of the
Capital Securities and the Common Securities.
"Holder" means a Person in whose name a Certificate representing a Security
is registered, such Person being a beneficial owner within the meaning of the
Business Trust Act; provided, however, that in determining whether the Holders
of the requisite liquidation amount of Capital Securities have voted on any
matter provided for in this Declaration, then for the purpose of such
determination only (and not for any other purpose hereunder), if the Capital
Securities remain in the form of one or more Global Securities, the term
"Holders" shall mean the holder of the Global Security acting at the direction
of the Capital Security Beneficial Owners.
"Indemnified Person" means a Company Indemnified Person or a Fiduciary
Indemnified Person.
"Indenture" means the Indenture dated as of November 27, 1996, among the
Company and the Indenture Trustee, and any indenture supplemental thereto
pursuant to which the Debentures are to be issued.
"Indenture Event of Default" means an "Event of Default" as defined in the
Indenture.
"Indenture Trustee" means The Bank of New York, in its capacity as trustee
under the Indenture until a successor is appointed thereunder, and thereafter
means such successor trustee.
"Initial Purchasers" means Lehman Brothers Inc., Donaldson, Lufkin &
Jenrette Securities Corporation, Keefe Bruyette & Woods, Inc. and McDonald &
Company Securities, Inc.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as the term is defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act.
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"Investment Company" means an investment company as defined in the
Investment Company Act and the regulations promulgated thereunder.
"Investment Company Act" means the Investment Company Act of 1940, as
amended from time to time, or any successor legislation.
"Investment Company Event" means the receipt by the Trust of an opinion of
counsel, rendered by a law firm having a recognized national securities
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 will 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 Closing Date.
"Legal Action" has the meaning set forth in Section 3.6(g).
"List of Holders" has the meaning specified in Section 2.2(a).
"Majority in Liquidation Amount" means, except as provided in the terms of
the Capital Securities or by the Trust Indenture Act, Holder(s) of outstanding
Securities, voting together as a single class, or, as the context may require,
Holders of outstanding Capital Securities or Holders of outstanding Common
Securities, voting separately as a class, who are the record owners of more than
50% of the aggregate liquidation amount (including the stated amount that would
be paid on redemption, liquidation or otherwise, plus accrued and unpaid
Distributions to the date upon which the voting percentages are determined) of
all outstanding Securities of the relevant class.
"New Capital Securities" has the meaning specified in Section 7.1.
"New Capital Security Certificate" has the meaning specified in Section
7.1.
"Officers' Certificate" means, with respect to any Person (other than
Regular Trustees who are natural persons), a certificate signed by two
Authorized Officers of such Person on behalf of such Person. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Declaration 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 on behalf of such Person 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
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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 and on
behalf of such Person, such condition or covenant has been complied with;
provided, that the term "Officers' Certificate", when used with reference to
Regular Trustees who are natural persons shall mean a certificate signed by two
of the Regular Trustees which otherwise satisfies the foregoing requirements.
"Paying Agent" has the meaning specified in Section 3.8(h).
"Payment Amount" has the meaning specified in Section 7.2(a).
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof or any other entity of whatever nature.
"Private Placement Legend" as defined in Section 314 of the Indenture.
"Property Account" has the meaning specified in Section 3.8(c).
"Property Trustee" means the Trustee meeting the eligibility requirements
set forth in Section 6.3.
"Property Trustee Account" has the meaning set forth in Section 3.8(c).
"Pro Rata" means pro rata to each Holder of Securities according to the
aggregate liquidation amount of the Securities held by the relevant Holder in
relation to the aggregate liquidation amount of all Securities outstanding.
"Qualified Institutional Buyer" or "QIB" has the meaning specified in Rule
144A under the Securities Act.
"Quorum" means a majority of the Regular Trustees or, if there are only two
Regular Trustees, both of them.
"Redemption Price" has the meaning specified in Section 7.3(a).
"Registration Rights Agreement" means the Registration Rights Agreement
dated the date hereof between the Company, the Trust and the Initial Purchasers
for the benefit of themselves and the Holders as the same may be amended from
time to time in accordance with the terms thereof.
"Regular Trustee" means any Trustee other than the Property Trustee and the
Delaware Trustee.
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"Regulation S" means Regulation S under the Securities Act and any
successor regulation thereto.
"Regulation S Global Security" means any Global Security or Securities
evidencing Securities that are to be traded pursuant to Regulation S.
"Regulatory Capital Event" means that the Company shall have received an
opinion of independent bank regulatory counsel experienced in such matters to
the effect that, as a result of (a) any amendment to or change (including any
announced prospective change) in the laws (or any regulations thereunder) of the
United States or any rules, guidelines or policies of the Federal Reserve or (b)
any official administrative pronouncement or judicial decision for interpreting
or applying such laws or regulations which amendment or change is effective or
such pronouncement or decision is announced on or after the date of original
issuance of the Capital Securities, the Capital Securities do not constitute, or
within 90 days of the date thereof, will not constitute Tier I capital (or its
then equivalent); provided, however, that the distribution of the Securities in
connection with the liquidation of the Trust by the Company shall not in and of
itself constitute a Regulatory Capital Event unless such liquidation shall have
occurred in connection with a Tax Event or an Investment Company Event.
"Related Party" means, with respect to the Sponsor, any direct or wholly
owned subsidiary of the Sponsor or any Person that owns, directly or indirectly,
100% of the outstanding voting securities of the Sponsor.
"Responsible Officer" means, with respect to the Property Trustee, any
officer within the Corporate Trust Office of the Property Trustee, including any
vice-president, any assistant vice-president, the secretary, any assistant
secretary, the treasurer, any assistant treasurer or other officer of the
Corporate Trust Office of the Property Trustee customarily performing functions
similar to those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of that officer's knowledge of and
familiarity with the particular subject.
"Restricted Global Security" means any Global Security or Securities
evidencing Securities that are to be traded pursuant to Rule 144A.
"Restricted Period" shall have the meaning specified in Section 7.13.
"Restricted Security" has the meaning assigned to such term in Rule
144(a)(3) of the Securities Act.
"Rule 144A" means Rule 144A under the Securities Act.
"Rule 3a-5" means Rule 3a-5 under the Investment Company Act or any
successor rule thereunder.
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"Securities" means the Common Securities and the Capital Securities.
"Securities Act" means the Securities Act of 1933, as amended
from time to time, or any successor legislation.
"Special Event" means a Tax Event, a Regulatory Capital Event or an
Investment Company Event.
"Sponsor" means Provident Bancorp, Inc., an Ohio corporation, or any
successor entity in a merger, consolidation or amalgamation, in its capacity as
sponsor of the Trust.
"Successor Delaware Trustee" has the meaning specified in Section 6.6(b).
"Successor Entity" has the meaning specified in Section 3.15(b)(i).
"Successor Property Trustee" has the meaning specified in Section 6.6(b).
"Successor Security" has the meaning specified in Section 3.15(b)(i)b.
"Super Majority" has the meaning set forth in Section 2.6(a)(ii).
"Tax Event" means the receipt by the Trust of an opinion of counsel,
rendered by a law firm having a national tax practice, to the effect that, as a
result of any amendment to, change in or announced proposed change in the laws
(or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein, or as a result of any
official administrative pronouncement or judicial decision interpreting or
applying such laws or regulations, which amendment or change is adopted or which
proposed change, pronouncement or decision is announced on or after the Closing
Date, there is more than an insubstantial risk that (i) the Trust is, or will be
within 90 days of the date of such opinion, subject to the United States federal
income tax with respect to income received or accrued on the Debentures, (ii)
interest payable by the Company on such Debentures is not, or within 90 days of
the date of such opinion, will not be, deductible by the Company, in whole or in
part, for United States federal income tax purposes, or (iii) the Trust is, or
will be within 90 days of the date of such opinion, subject to more than a de
minimus amount of other taxes, duties or other governmental charges.
"10% in Liquidation Amount" means, except as provided in the terms of the
Capital Securities or by the Trust Indenture Act, Holder(s) of outstanding
Securities, voting together as a single class, or, as the context may require,
Holders of outstanding Capital Securities or Holders of outstanding Common
Securities, voting separately as a class, who are the record owners of 10% or
more of the aggregate liquidation amount (including the stated amount that would
be paid on redemption, liquidation or otherwise, plus accrued and unpaid
Distributions to the date upon which the voting percentages are determined) of
all outstanding Securities of the relevant class.
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"Transfer Restricted Securities" has the meaning specified in Section 7.1.
"Transfer Restricted Securities Certificate" has the meaning specified in
Section 7.1.
"Treasury Regulations" means the income tax regulations, including
temporary and proposed regulations, promulgated under the Code by the United
States Treasury, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
"Trust Enforcement Event" in respect of the Securities means an Indenture
Event of Default has occurred and is continuing in respect of the Debentures.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended
from time to time, or any successor legislation.
"Trustee" or "Trustees" means each Person who has signed this Declaration
as a trustee, so long as such Person shall continue in office in accordance with
the terms hereof, and all other Persons who may from time to time be duly
appointed, qualified and serving as Trustees in accordance with the provisions
hereof, and references herein to a Trustee or the Trustees shall refer to such
Person or Persons solely in their capacity as trustees hereunder.
"Trustees' Authorization Certificate" means a written certificate signed by
two of the Regular Trustees for the purpose of establishing the terms and form
of the Capital Securities and the Common Securities as determined by the Regular
Trustees.
ARTICLE 2
TRUST INDENTURE ACT
Section 2.1 Trust Indenture Act; Application.
(a) This Declaration is subject to the provisions of the Trust Indenture
Act that are required to be part of this Declaration and shall, to the extent
applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a Trustee for
the purposes of the Trust Indenture Act.
(c) If and to the extent that any provision of this Declaration conflicts
with the duties imposed by Sections 310 to 317, inclusive, of the Trust
Indenture Act, such imposed duties shall control.
(d) The application of the Trust Indenture Act to this Declaration shall
not affect the Trust's classification as a grantor trust for United States
federal income tax
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purposes and shall not affect the nature of the Securities as equity securities
representing undivided beneficial ownership interests in the assets of the
Trust.
Section 2.2 Lists of Holders of Securities.
(a) Each of the Sponsor and the Regular Trustees on behalf of the Trust
shall provide the Property Trustee with a list, in such form as the Property
Trustee may reasonably require, of the names and addresses of the Holders of the
Securities ("List of Holders"), (i) not later than June 1 and December 1 of each
year and current as of such date, and (ii) at any other time, within 30 days of
receipt by the Trust of a written request from the Property Trustee for a List
of Holders as of a date no more than 15 days before such List of Holders is
given to the Property Trustee; provided that neither the Sponsor nor the Regular
Trustees on behalf of the Trust shall be obligated to provide such List of
Holders at any time the List of Holders does not differ from the most recent
List of Holders given to the Property Trustee by the Sponsor and the Regular
Trustees on behalf of the Trust. The Property Trustee shall preserve, in as
current a form as is reasonably practicable, all information contained in Lists
of Holders given to it or which it receives in the capacity as Paying Agent (if
acting in such capacity), provided that the Property Trustee may destroy any
List of Holders previously given to it on receipt of a new List of Holders.
(b) The Property Trustee shall comply with its obligations under, and shall
be entitled to the benefits of, Sections 311(a), 311(b) and 312(b) of the Trust
Indenture Act.
Section 2.3 Reports by the Property Trustee.
Within 60 days after May 15 of each year (commencing with the year of the
first anniversary of the issuance of the Capital Securities), the Property
Trustee shall provide to the Holders of the Capital Securities such reports as
are required by Section 313 of the Trust Indenture Act, if any, in the form and
in the manner provided by Section 313 of the Trust Indenture Act. The Property
Trustee shall also comply with the requirements of Section 313(d) of the Trust
Indenture Act.
Section 2.4 Periodic Reports to the Property Trustee.
Each of the Sponsor and the Regular 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 of the Trust Indenture Act in the form, in
the manner and at the times required by Section 314 of the Trust Indenture Act.
Section 2.5 Evidence of Compliance with Conditions Precedent.
Each of the Sponsor and the Regular 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 Declaration that relate to any of the
matters set forth in Section
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314(c) of the Trust Indenture Act. Any certificate or opinion required to be
given by an officer pursuant to Section 314(c)(1) may be given in the form of an
Officers' Certificate.
Section 2.6 Trust Enforcement Events; Waiver.
(a) The Holders of a Majority in Liquidation Amount of the Capital
Securities may, by vote or written consent, on behalf of the Holders of all of
the Capital Securities, waive any past Trust Enforcement Event in respect of the
Capital Securities and its consequences, provided that, if the underlying
Indenture Event of Default:
(i) is not waivable under the Indenture, the Trust Enforcement Event under
this Declaration shall also not be waivable; or
(ii) requires the consent or vote of greater than a majority in principal
amount of the holders of the Debentures (a "Super Majority") to be
waived under the Indenture, the Trust Enforcement Event under this
Declaration may only be waived by the vote or written consent of the
Holders of at least the proportion in liquidation amount of the
Capital Securities that the relevant Super Majority represents of the
aggregate principal amount of the Debentures outstanding.
The foregoing provisions of this Section shall be in lieu of Section
316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of the
Trust Indenture Act is hereby expressly excluded from this Declaration and the
Securities, as permitted by the Trust Indenture Act. Upon such waiver, any such
default shall cease to exist, and any Trust Enforcement Event with respect to
the Capital Securities arising therefrom shall be deemed to have been cured, for
every purpose of this Declaration and the Capital Securities, but no such waiver
shall extend to any subsequent or other Trust Enforcement Event with respect to
the Capital Securities or impair any right consequent thereon. Any waiver by the
Holders of the Capital Securities of a Trust Enforcement Event with respect to
the Capital Securities shall also be deemed to constitute a waiver by the
Holders of the Common Securities of any such Trust Enforcement Event with
respect to the Common Securities for all purposes of this Declaration without
any further act, vote, or consent of the Holders of the Common Securities.
(b) The Holders of a Majority in Liquidation Amount of the Common
Securities may, by vote or written consent, on behalf of the Holders of all of
the Common Securities, waive any past Trust Enforcement Event in respect of the
Common Securities and its consequences, provided that, if the underlying
Indenture Event of Default:
(i) is not waivable under the Indenture, except where the Holders of the
Common Securities are deemed to have waived such Trust Enforcement
Event hereunder as provided below in this Section , the Trust
Enforcement Event hereunder shall also not be waivable; or
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(ii) requires the consent or vote of a Super Majority to be waived under
the Indenture, except where the Holders of the Common Securities are
deemed to have waived such Trust Enforcement Event hereunder as
provided below in this Section , the Trust Enforcement Event hereunder
may only be waived by the vote or written consent of the Holders of at
least the proportion in liquidation amount of the Common Securities
that the relevant Super Majority represents of the aggregate principal
amount of the Debentures outstanding;
provided further, each Holder of Common Securities will be deemed to have waived
any Trust Enforcement Event and all Trust Enforcement Events with respect to the
Common Securities and the consequences thereof until all Trust Enforcement
Events with respect to the Capital Securities have been cured, waived or
otherwise eliminated, and until such Trust Enforcement Events with respect to
the Capital Securities have been so cured, waived or otherwise eliminated, the
Property Trustee will be deemed to be acting solely on behalf of the Holders of
the Capital Securities and only the Holders of the Capital Securities will have
the right to direct the Property Trustee in accordance with the terms of the
Securities. The foregoing provisions of this Section shall be in lieu of
Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act and such
Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act are hereby
expressly excluded from this Declaration and the Securities, as permitted by the
Trust Indenture Act. Subject to the foregoing provisions of this Section , upon
such waiver, any such default shall cease to exist and any Trust Enforcement
Event with respect to the Common Securities arising therefrom shall be deemed to
have been cured for every purpose of this Declaration, but no such waiver shall
extend to any subsequent or other Trust Enforcement Event with respect to the
Common Securities or impair any right consequent thereon.
(c) A waiver of an Indenture Event of Default by the Property Trustee at
the direction of the Holders of the Capital Securities constitutes a waiver of
the corresponding Trust Enforcement Event with respect to the Capital Securities
under this Declaration. The foregoing provisions of this Section shall be in
lieu of Section 316(a)(1)(B) of the Trust Indenture Act and such Section
316(a)(1)(B) of the Trust Indenture Act is hereby expressly excluded from this
Declaration and the Securities, as permitted by the Trust Indenture Act.
Section 2.7 Trust Enforcement Event; Notice.
(a) The Property Trustee shall, within 90 days after the occurrence of a
Trust Enforcement Event, transmit by mail, first class postage prepaid, to the
Holders of the Securities, notices of all defaults with respect to the
Securities actually known to a Responsible Officer of the Property Trustee,
unless such defaults have been cured before the giving of such notice (the term
"defaults" for the purposes of this Section being hereby defined to be an
Indenture Event of Default, not including any periods of grace provided for
therein and irrespective of the giving of any notice provided therein); provided
that, except for a default in the payment of principal of (or premium, if any)
or interest on any of the Debentures, the Property Trustee shall be protected in
withholding such notice if and so long
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as a Responsible Officer of the Property Trustee in good faith determines that
the withholding of such notice is in the interests of the Holders of the
Securities.
(b) The Property Trustee shall not be deemed to have knowledge of any
default except:
(i) a default under Sections 501(1) and 501(2) of the Indenture; or
(ii) any default as to which the Property Trustee shall have received
written notice or of which a Responsible Officer of the Property
Trustee charged with the administration of this Declaration shall have
actual knowledge.
ARTICLE 3
ORGANIZATION
Section 3.1 Name and Organization.
The Trust hereby continued is named "Provident Capital Trust I" as such
name may be modified from time to time by the Regular Trustees following written
notice to the Holders of Securities. The Trust's activities may be conducted
under the name of the Trust or any other name deemed advisable by the Regular
Trustees.
Section 3.2 Office.
The address of the principal office of the Trust is c/o Provident Bancorp,
Inc., One East Fourth Street, Cincinnati, Ohio 45202. On 10 Business Days'
written notice to the Holders of Securities, the Regular Trustees may designate
another principal office.
Section 3.3 Purpose.
The exclusive purposes and functions of the Trust are (a) to issue and sell
Securities and use the gross proceeds from such sale to acquire the Debentures,
and (b) except as otherwise limited herein, to engage in only those other
activities necessary or incidental thereto. The Trust shall not borrow money,
issue debt or reinvest proceeds derived from investments, mortgage or pledge,
any of its assets or otherwise undertake (or permit to be undertaken) any
activity that would cause the Trust not to be classified as a grantor trust for
United States federal income tax purposes.
By the acceptance of this Trust, none of the Trustees, the Sponsor, the
Holders of the Capital Securities or Common Securities or the Capital Securities
Beneficial Owners will take any position for United States federal income tax
purposes which is contrary to the classification of the Trust as a grantor
trust.
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Section 3.4 Authority.
Subject to the limitations provided in this Declaration and to the specific
duties of the Property Trustee, the Regular Trustees shall have exclusive
authority to carry out the purposes of the Trust. An action taken by the Regular
Trustees in accordance with their powers shall constitute the act of and serve
to bind the Trust and an action taken by the Property Trustee on behalf of the
Trust in accordance with its powers shall constitute the act of and serve to
bind the Trust. In dealing with the Trustees acting on behalf of the Trust, no
person shall be required to inquire into the authority of the Trustees to bind
the Trust. Persons dealing with the Trust are entitled to rely conclusively on
the power and authority of the Trustees as set forth in this Declaration.
(a) Except as expressly set forth in this Declaration and except if a
meeting of the Regular Trustees is called with respect to any matter over which
the Regular Trustees have power to act, any power of the Regular Trustees may be
exercised by, or with the consent of, any one such Regular Trustee.
(b) Unless otherwise determined by the Regular Trustees, and except as
otherwise required by the Business Trust Act or applicable law, any Regular
Trustee is authorized to execute on behalf of the Trust any documents which the
Regular Trustees have the power and authority to cause the Trust to execute
pursuant to Section 3.6(b), provided, that the registration statements referred
to in Section 3.6(b)(i), including any amendments thereto, shall be signed by or
on behalf of a majority of the Regular Trustees; and
(c) A Regular 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 purposes of signing any documents which the Regular Trustees have power
and authority to cause the Trust to execute pursuant to Section 3.6.
Section 3.5 Title to Property of the Trust.
Except as provided in Section with respect to the Debentures and the
Property Account or as otherwise provided in this Declaration, legal title to
all assets of the Trust shall be vested in the Trust. The Holders shall not have
legal title to any part of the assets of the Trust, but shall have an undivided
beneficial ownership interest in the assets of the Trust.
Section 3.6 Powers and Duties of the Regular Trustees.
The Regular Trustees shall have the exclusive power, duty and authority to
cause the Trust to engage in the following activities:
(a) to establish the terms and form of the Capital Securities and the
Common Securities in the manner specified in Section and issue and sell the
Capital Securities and the Common Securities in accordance with this
Declaration; provided, however, that the Trust may issue no more than two series
of Capital Securities (which will consist exclusively of the
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Transfer Restricted Securities and the New Capital Securities) and no more than
one series of Common Securities, and, provided further, that there shall be no
interests in the Trust other than the Securities, and the issuance of Securities
shall be limited to a one-time, simultaneous issuance of both Transfer
Restricted Securities and Common Securities on the Closing Date and a one-time
issuance of New Capital Securities pursuant to an exchange offer required
pursuant to the Registration Rights Agreement;
(b) in connection with the issue and sale of the Capital Securities, at the
direction of the Sponsor, to:
(i) execute and file with the Commission one or more registration
statements on the applicable forms prepared by the Sponsor, including
any amendments thereto, pertaining to the Capital Securities, the
Guarantee and the Debentures;
(ii) execute and file any documents prepared by the Sponsor, or take any
acts as determined by the Sponsor to be necessary, in order to qualify
or register all or part of the Capital Securities in any State in
which the Sponsor has determined to qualify or register such Capital
Securities for sale;
(iii) if deemed necessary or desirable by the Sponsor, execute and file an
application, prepared by the Sponsor, to the New York Stock Exchange,
Inc. or any other national stock exchange or the Nasdaq National
Market for listing of any Capital Securities, the Guarantee and the
Debentures;
(iv) if deemed necessary or desirable by the Sponsor, execute and file with
the Commission a registration statement on Form 8-A, including any
amendments thereto, prepared by the Sponsor, relating to the
registration of the Capital Securities, the Guarantee and the
Debentures under Section 12(b) of the Exchange Act;
(v) execute and enter into a purchase agreement and other related
agreements providing for the sale of the Capital Securities to the
Initial Purchasers; and
(vi) execute and enter into the Registration Rights Agreement;
(c) to acquire the Debentures with the proceeds of the sale of the Capital
Securities and the Common Securities; provided, however, that the Regular
Trustees shall cause legal title to the Debentures to be held of record in the
name of the Property Trustee for the benefit of the Holders of the Capital
Securities and the Holders of the Common Securities;
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(d) to give the Sponsor and the Property Trustee prompt written notice of
the occurrence of a Special Event; provided that the Regular Trustees shall
consult with the Sponsor and the Property Trustee before taking or refraining
from taking any action in relation to any such Special Event;
(e) to establish a record date with respect to all actions to be taken
hereunder that require a record date be established, including and with respect
to, for the purposes of Section 316(c) of the Trust Indenture Act,
Distributions, voting rights, redemptions and exchanges, and to issue relevant
notices to the Holders of Capital Securities and Holders of Common Securities as
to such actions and applicable record dates;
(f) to take all actions and perform such duties as may be required of the
Regular Trustees pursuant to the terms of the Securities;
(g) to bring or defend, pay, collect, compromise, arbitrate, resort to
legal action or otherwise adjust claims or demands of or against the Trust
("Legal Action"), unless pursuant to Section , the Property Trustee has the
exclusive power to bring such Legal Action;
(h) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors and
consultants to conduct only those services that the Regular Trustees have
authority to conduct directly, and to and pay reasonable compensation for such
services;
(i) to cause the Trust to comply with the Trust's obligations under the
Trust Indenture Act;
(j) to give the certificate required by Section 314(a)(4) of the Trust
Indenture Act to the Property Trustee, which certificate may be executed by any
Regular Trustee;
(k) to incur expenses that are necessary or incidental to carry out any of
the purposes of the Trust;
(l) to act as, or appoint another Person to act as, registrar and transfer
agent for the Securities;
(m) to give prompt written notice to the Holders of the Securities of any
notice received from the Company of its election to defer payments of interest
on the Debentures by extending the interest payment period under the Debentures
as authorized by the Indenture;
(n) 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
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Capital Securities and the Holders of the Common Securities or to enable the
Trust to effect the purposes for which the Trust was created;
(o) to take any action, not inconsistent with applicable law, that the
Regular Trustees determine in their discretion to be necessary or desirable in
carrying out the purposes and functions of the Trust as set out in Section 3.3
or the activities of the Trust as set out in this Section 3.6, including, but
not limited to:
(i) causing the Trust not to be deemed to be an Investment Company
required to be registered under the Investment Company Act;
(ii) causing the Trust to be classified as a grantor trust for United
States federal income tax purposes; and
(iii) cooperating with the Company to ensure that the Debentures will be
treated as indebtedness of the Company for United States federal
income tax purposes.
(p) to take all action necessary to cause all applicable tax returns and
tax information reports that are required to be filed with respect to the Trust
to be duly prepared and filed by the Regular Trustees, on behalf of the Trust;
and
(q) to execute all documents or instruments, perform all duties and powers,
and do all things for and on behalf of the Trust in all matters necessary or
incidental to the foregoing.
The Regular Trustees shall exercise the powers set forth in this
Section 3.6 in a manner that is consistent with the purposes and functions
of the Trust set out in Section 3.3, and the Regular Trustees shall have no
power to, and shall not, take any action that is inconsistent with the
purposes and functions of the Trust set forth in Section 3.3.
Subject to this Section 3.6, the Regular Trustees shall have none of the
powers or the authority of the Property Trustee set forth in Section 3.8.
Any expenses incurred by the Regular Trustees pursuant to this Section 3.6
shall be reimbursed by the Company.
Section 3.7 Prohibition of Actions by the Trust and the Trustees.
(a) The Trust shall not, and the Trustees (including the Property Trustee)
shall cause the Trust not to, engage in any activity other than as required or
authorized by this Declaration. In particular, the Trust shall not and the
Trustees (including the Property Trustee) shall cause the Trust not to:
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(i) invest any proceeds received by the Trust from holding the Debentures,
but shall distribute all such proceeds to Holders of Securities
pursuant to the terms of this Declaration and of the Securities;
(ii) acquire any assets other than the Debentures (and any interest or
proceeds received thereon) and the Guarantee (and the proceeds
received thereon or with respect thereto);
(iii) possess Trust property for other than a Trust purpose;
(iv) make any loans or incur any indebtedness;
(v) possess any power or otherwise act in such a way as to vary the Trust
assets;
(vi) possess any power or otherwise act in such a way as to vary the terms
of the Securities in any way whatsoever (except to the extent
expressly authorized in this Declaration or by the terms of the
Securities);
(vii) issue any securities or other evidences of beneficial ownership of,
or beneficial interest in, the Trust other than the Securities; or
(viii) other than as provided in this Declaration or by the terms of the
Securities, (A) direct the time, method and place of exercising any
trust, or power conferred upon the Indenture Trustee with respect to
the Debentures, (B) waive any past default that is waivable under the
Indenture, (C) exercise any right to rescind or annul any declaration
that the principal of all the Debentures shall be due and payable, or
(D) consent to any amendment, modification or termination of the
Indenture or the Debentures where such consent shall be required,
unless, in each case, the Trust shall have received (A) the prior
approval of the Majority in Liquidation Amount of the Capital
Securities; provided, however, that where a consent or action under
the Indenture would require the consent or act of the holders of more
than a majority of the aggregate liquidation amount of Debentures
affected thereby, only the Holders of the percentage of the aggregate
stated liquidation amount of the Capital Securities which is at least
equal to the percentage required under the Indenture may direct the
Property Trustee to give such consent to take such action and (B) an
opinion of counsel to the effect that such modification will not cause
more than an insubstantial risk that the Trust will be deemed an
Investment Company required to be registered under the Investment
Company Act, or the Trust will not be classified as a grantor trust
for United States federal income tax purposes;
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(ix) take any action inconsistent with the status of the Trust as a grantor
trust for United States federal income tax purposes; or
(x) revoke any action previously authorized or approved by a vote of the
Holders of the Capital Securities except pursuant to a subsequent vote
of the Holders of the Capital Securities.
Section 3.8 Powers and Duties of the Property Trustee.
(a) The legal title to the Debentures shall be owned by and held of record
in the name of the Property Trustee in trust for the benefit of the Trust and
the Holders of the Securities. The right, title and interest of the Property
Trustee to the Debentures shall vest automatically in each Person who may
hereafter be appointed as Property Trustee in accordance with Section . Such
vesting and cessation of title shall be effective whether or not conveyancing
documents with regard to the Debentures have been executed and delivered.
(b) The Property Trustee shall not transfer its right, title and interest
in the Debentures to the Regular Trustees or to the Delaware Trustee (if the
Property Trustee does not also act as Delaware Trustee).
(c) The Property Trustee shall:
(i) establish and maintain a segregated non-interest bearing trust account
(the "Property Account") in the name of and under the exclusive
control of the Property Trustee on behalf of the Holders of the
Securities and, upon the receipt of payments of funds made in respect
of the Debentures held by the Property Trustee, deposit such funds
into the Property Account and make payments to the Holders of the
Capital Securities and Holders of the Common Securities from the
Property Account in accordance with Section 7.2. Funds in the Property
Account shall be held uninvested until disbursed in accordance with
this Declaration. The Property Account shall be an account that is
maintained with a banking institution the rating on whose long-term
unsecured indebtedness is at least equal to the rating assigned to the
Capital Securities by a "nationally recognized statistical rating
organization", as that term is defined for purposes of Rule 436(g)(2)
under the Securities Act;
(ii) engage in such ministerial activities as shall be necessary or
appropriate to effect the redemption of the Capital Securities and the
Common Securities to the extent the Debentures are redeemed or mature;
and
(iii) upon written notice of distribution issued by the Regular Trustees in
accordance with the terms of the Securities, engage in such
ministerial activities as so directed and as shall be necessary or
appropriate to
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effect the distribution of the Debentures to Holders of Securities
upon the occurrence of a Special Event.
(d) The Property Trustee shall take all actions and perform such duties as
may be specifically required of the Property Trustee pursuant to the terms of
the Securities.
(e) The Property Trustee shall take any Legal Action which arises out of or
in connection with a Trust Enforcement Event of which a Responsible Officer of
the Property Trustee has actual knowledge or the Property Trustee's duties and
obligations under this Declaration or the Trust Indenture Act.
(f) The Property Trustee shall continue to serve as a Trustee until either:
(i) the Trust has been completely liquidated and the proceeds of the
liquidation distributed to the Holders of Securities pursuant to the
terms of the Securities; or
(ii) a Successor Property Trustee has been appointed and has accepted that
appointment in accordance with Section 6.6.
(g) Subject to such limitations as are necessary to insure compliance with
Section , the Property Trustee shall have the legal power to exercise all of the
rights, powers and privileges of a holder of Debentures under the Indenture and,
if a Trust Enforcement Event actually known to a Responsible Officer of the
Property Trustee occurs and is continuing, the Property Trustee shall, for the
benefit of Holders of the Securities, enforce its rights as holder of the
Debentures subject to the rights of the Holders pursuant to the terms of such
Securities.
(h) The Property Trustee may authorize one or more Persons (each, a "Paying
Agent") to pay Distributions, redemption payments or liquidation payments on
behalf of the Trust with respect to all Securities and any such Paying Agent
shall comply with Section 317(b) of the Trust Indenture Act. Any Paying Agent
may be removed by the Property Trustee at any time and a successor Paying Agent
or additional Paying Agents may be appointed at any time by the Property
Trustee. In the event the Capital Securities do not remain in the form of one or
more Global Securities, the Property Trustee will act as Paying Agent and may
designate an additional or substitute Paying Agent at any time.
(i) Subject to this Section 3.8, the Property Trustee shall have none of
the duties, liabilities, powers or the authority of the Regular Trustees set
forth in Section 3.6.
The Property Trustee shall exercise the powers set forth in this
Section 3.8 in a manner that is consistent with the purposes and functions of
the Trust set out in Section 3.3, and the Property Trustee shall have no power
to, and shall not, take any action that is inconsistent with the purposes and
functions of the Trust set out in Section 3.3.
Section 3.9 Certain Duties and Responsibilities of the Property
Trustee.
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(a) The Property Trustee, other than during the occurrence and continuance
of any Trust Enforcement Event, shall undertake to perform only such duties as
are specifically set forth in this Declaration and no implied covenants shall be
read into this Declaration against the Property Trustee. In case a Trust
Enforcement Event has occurred (that has not been cured or waived pursuant to
Section 2.6) of which a Responsible Officer of the Property Trustee has actual
knowledge, the Property Trustee shall exercise such of the rights and powers
vested in it by this Declaration, and use the same degree of care and skill in
their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(b) No provision of this Declaration 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) prior to the occurrence of a Trust Enforcement Event and after the
curing or waiving of all such Trust Enforcement Events that may have
occurred:
a. the duties and obligations of the Property Trustee shall be
determined solely by the express provisions of this Declaration
and the Property Trustee shall not be liable except for the
performance of such duties and obligations as are specifically
set forth in this Declaration, and no implied covenants or
obligations shall be read into this Declaration against the
Property Trustee; and
b. in the absence of bad faith on the part of the Property Trustee,
the Property Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the
Property Trustee and conforming to the requirements of this
Declaration; but in the case of any such certificates or opinions
that by any provision hereof are specifically required to be
furnished to the Property Trustee, the Property Trustee shall be
under a duty to examine the same to determine whether or not they
conform to the requirements of this Declaration;
(ii) the Property Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer of the Property Trustee,
unless it shall be proved that the Property Trustee was negligent in
ascertaining the pertinent facts;
(iii) the Property Trustee shall not be liable with respect to any action
taken or omitted to be taken by it without negligence, in good faith
in accordance with the direction of the Holders of not less than a
Majority in Liquidation Amount of the Securities relating to the time,
method and
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place of conducting any proceeding for any remedy available to the
Property Trustee, or exercising any trust or power conferred upon the
Property Trustee under this Declaration;
(iv) no provision of this Declaration shall require the Property Trustee to
expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise
of any of its rights or powers, if it shall have reasonable grounds
for believing that the repayment of such funds or liability is not
reasonably assured to it under the terms of this Declaration or
indemnity reasonably satisfactory to the Property Trustee against such
risk or liability is not reasonably assured to it;
(v) the Property Trustee's sole duty with respect to the custody,
safe-keeping and physical preservation of the Debentures and the
Property 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 Declaration and the Trust
Indenture Act;
(vi) the Property Trustee shall have no duty or liability for or with
respect to the value, genuineness, existence or sufficiency of the
Debentures or the payment of any taxes or assessments levied thereon
or in connection therewith;
(vii) the Property Trustee shall not be liable for any interest on any
money received by it except as it may otherwise agree with the
Sponsor. Money held by the Property Trustee need not be segregated
from other funds held by it except in relation to the Property Account
maintained by the Property Trustee pursuant to Section 3.8(c)(i) and
except to the extent otherwise required by law; and
(viii) the Property Trustee shall not be responsible for monitoring the
compliance by the Regular Trustees or the Sponsor with their
respective duties under this Declaration, nor shall the Property
Trustee be liable for any default or misconduct of the Regular
Trustees or the Sponsor.
Section 3.10 Certain Rights of Property Trustee.
(a) Subject to the provisions of Section 3.9:
(i) the Property Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other
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paper or document believed by it to be genuine and to have been
signed, sent or presented by the proper party or parties;
(ii) any direction or act of the Sponsor or the Regular Trustees
contemplated by this Declaration shall be sufficiently evidenced by an
Officers' Certificate (or, with respect to the establishment of the
terms and form of the Securities by the Regular Trustees, by a
Trustees' Authorization Certificate);
(iii) whenever in the administration of this Declaration, the Property
Trustee shall deem it desirable that a matter be proved or established
before taking, 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 Sponsor or the
Regular Trustees;
(iv) the Property Trustee shall have no duty to see to any recording,
filing or registration of any instrument (including any financing or
continuation statement or any filing under tax or securities laws) or
any rerecording, refiling or registration thereof;
(v) the Property Trustee may consult with counsel of its choice or other
experts and the advice or opinion of such counsel and experts with
respect to legal matters or advice within the scope of such experts'
area of expertise 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 accordance with such advice or opinion,
such counsel may be counsel to the Sponsor or any of its Affiliates,
and may include any of its employees. The Property Trustee shall have
the right at any time to seek instructions concerning the
administration of this Declaration from any court of competent
jurisdiction;
(vi) the Property Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Declaration at the request
or direction of any Holder, unless such Holder shall have provided to
the Property Trustee security and indemnity, reasonably satisfactory
to the Property Trustee, against the costs, expenses (including
attorneys, fees and expenses and the expenses of the Property
Trustee's agents, nominees or custodians) and liabilities that might
be incurred by it in complying with such request or direction,
including such reasonable advances as may be requested by the Property
Trustee; provided that, nothing contained in this Section 3.10(a)
shall be taken to relieve the Property Trustee, upon the occurrence
of an Indenture Event of Default, of its obligation to exercise the
rights and powers vested in it by this Declaration;
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(vii) 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, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Property Trustee, in its
discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit;
(viii) the Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents, custodians, nominees or attorneys and the Property
Trustee shall not be responsible for any misconduct or negligence on
the part of any agent or attorney appointed with due care by it
hereunder;
(ix) any action taken by the Property Trustee or its agents hereunder shall
bind the Trust and the Holders of the Securities, and the signature of
the Property Trustee or its agents alone shall be sufficient and
effective to perform any such action and no third party shall be
required to inquire as to the authority of the Property Trustee to so
act or as to its compliance with any of the terms and provisions of
this Declaration, both of which shall be conclusively evidenced by the
Property Trustee's or its agent's taking such action;
(x) whenever in the administration of this Declaration 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 Securities, the Regular Trustees or the Sponsor, which
instructions in the case of the Holders may only be given by the
Holders of the same proportion in liquidation amount of the Securities
as would be entitled to direct the Property Trustee under the terms of
the Securities in respect of such remedy, right or action, (ii) may
refrain from enforcing such remedy or right or taking such other
action until such instructions are received, and (iii) shall be
protected in conclusively relying on or acting in or accordance with
such instructions;
(xi) If no Trust Enforcement Event has occurred and is continuing and the
Property Trustee is required to decide between alternative causes of
action, construe ambiguous provisions in their Declaration or is
unsure of the application of any provision of their Declaration, and
the matter is not one on which Holders of Capital Securities are
entitled under the Declaration to vote, then the Property Trustee may,
but shall be under no duty to, take such action as is directed by the
Company and, if not so directed, shall take such action as it deems
advisable and in the best interests of the Holders of the Securities
and will have no liability except for its own bad faith, negligence or
willful misconduct;
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(xii) except as otherwise expressly provided by this Declaration, the
Property Trustee shall not be under any obligation to take any action
that is discretionary under the provisions of this Declaration;
(xiii) the Property Trustee shall not be liable for any action taken,
suffered or omitted to be taken by it without negligence, in good
faith and reasonably believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Declaration;
and
(xiv) the Trustee shall have a lien prior to the Securities as to all
property and funds held by it hereunder for any amount owing it or any
predecessor Trustee, except with respect to funds held in trust for
the benefit of the Holders of particular Securities.
(b) No provision of this Declaration shall be deemed to impose any duty or
obligation on the Property Trustee to perform any act or acts or exercise any
right, power, duty or obligation conferred or imposed on it, in any jurisdiction
in which it shall be illegal, or in which the Property Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts, or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Property Trustee shall be
construed to be a duty.
Section 3.11 Delaware Trustee.
Notwithstanding any other provision of this Declaration other than Section
, 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 Regular
Trustees or the Property Trustee described in this Declaration. Except as set
forth in Section , the Delaware Trustee shall be a Trustee for the sole and
limited purpose of fulfilling the requirements of Section 3807 of the Business
Trust Act.
Section 3.12 Execution of Documents.
Unless otherwise determined by the Regular Trustees, and except as
otherwise required by the Business Trust Act, any Regular Trustee is authorized
to execute on behalf of the Trust any documents that the Regular Trustees have
the power and authority to execute pursuant to Section 3.6.
Section 3.13 Not Responsible for Recitals or Issuance of Securities.
The recitals contained in this Declaration and the Securities shall be
taken as the statements of the Sponsor, and the Trustees do not assume any
responsibility for their correctness. The Trustees make no representations as to
the value or condition of the property of the Trust or any part thereof. The
Trustees make no representations as to the validity or sufficiency of this
Declaration, the Securities, the Debentures or the Indenture.
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Section 3.14 Duration of Trust.
The Trust shall exist until terminated pursuant to the provisions of
Article 8 hereof.
Section 3.15 Mergers.
(a) The Trust may not merge with or into, consolidate, amalgamate, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other Person, except as
described in Section 3.15(b) and (c).
(b) The Trust may, with the consent of the Regular Trustees or, if there
are more than two, a majority of the Regular Trustees and without the consent of
the Holders of the Securities, the Delaware Trustee or the Property Trustee,
merge with or into, consolidate, amalgamate, or be replaced by or convey,
transfer or lease its properties substantially as an entirety to a trust
organized as such under the laws of any State; provided that:
(i) if the Trust is not the successor, such successor entity (the
"Successor Entity") either:
a. expressly assumes all of the obligations of the Trust under the
Securities; or
b. substitutes for the Capital Securities other securities having
substantially the same terms as the Capital Securities (the
"Successor Securities") so long as the Successor Securities rank
the same in priority as the Capital Securities rank with respect
to Distributions and payments upon liquidation, redemption and
otherwise;
(ii) the Company expressly appoints a trustee of such Successor Entity that
possesses the same powers and duties as the Property Trustee as the
holder of the Debentures;
(iii) the Capital Securities or any Successor Securities are listed, or any
Successor Securities will be listed upon notification of issuance, on
any national securities exchange or with any other or organization on
which the Capital Securities are then listed or quoted, if any;
(iv) such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease does not cause the Capital Securities (including any
Successor Securities) to be downgraded by any nationally recognized
statistical rating organization;
(v) such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease does not adversely affect the rights, preferences
and
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privileges of the Holders of the Capital Securities (including any
Successor Securities) in any material respect;
(vi) such Successor Entity has a purpose identical to that of the Trust;
(vii) prior to such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease the Sponsor has received an opinion of
independent counsel to the Trust experienced in such matters to the
effect that:
a. such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the
rights, preferences and privileges of the Holders of the Capital
Securities (including any Successor Securities) in any material
respect;
b. following such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease neither the Trust nor the Successor
Entity will be required to register as an Investment Company; and
c. following such merger, consolidation, amalgamation or
replacement, the Trust (or the Successor Entity) will continue to
be classified as a grantor trust for United States federal income
tax purposes;
(viii) the Sponsor or any permitted successor or assignee owns all of the
Common Securities and guarantees the obligations of such Successor
Entity under the Successor Securities at least to the extent provided
by the Guarantee; and
(ix) such Successor Entity expressly assumes all of the obligations of the
Trust with respect to the Trustees.
(c) Notwithstanding Section 3.15(b), the Trust shall not, except with the
consent of Holders of 100% in liquidation amount of the Securities,
consolidate, amalgamate, merge with or into, or be replaced by any other entity
or permit any other entity to consolidate, amalgamate, merge with or into, or
replace it if such consolidation, amalgamation, merger or replacement would
cause the Trust or Successor Entity to be classified as other than a grantor
trust for United States federal income tax purposes and each Holder of the
Securities not to be treated as owning an undivided interest in the Debentures.
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Section 3.16 Property Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
similar judicial proceeding relative to the Trust or any other obligor upon the
Securities or the property of the Trust or of such other obligor or their
creditors, the Property Trustee (irrespective of whether any Distributions on
the Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Property Trustee shall
have made any demand on the Trust for the payment of any past due Distributions)
shall be entitled and empowered, to the fullest extent permitted by law, by
intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of any Distributions
owing and unpaid in respect of the Securities (or, if the Securities are
original issue discount Securities, such portion of the liquidation amount as
may be specified in the terms of such Securities) and to file such other papers
or documents as may be necessary or advisable in order to have the claims of the
Property Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Property Trustee, its and counsel) and of the
Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Property Trustee and, in the event the
Property Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Property Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee, its
agents and counsel, and any other amounts due the Property Trustee.
Nothing herein contained shall be deemed to authorize the Property Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement adjustment or compensation affecting the
Securities or the rights of any Holder thereof or to authorize the Property
Trustee to vote in respect of the claim of any Holder in any such proceeding.
ARTICLE 4
SPONSOR
Section 4.1 Responsibilities of the Sponsor.
In connection with the issue and sale of the Capital Securities, the
Sponsor shall have the exclusive right and responsibility to engage in the
following activities:
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(a) to prepare for filing by the Trust with the Commission one or more
registration statements on the applicable forms, including any amendments
thereto, pertaining to the Capital Securities, the Guarantee and the Debentures;
(b) to determine the States in which to take appropriate action to qualify
or register for sale all or part of the Capital Securities and to do any and all
such acts, other than actions which must be taken by the Trust, and advise the
Trust of actions it must take, and prepare for execution and filing any
documents to be executed and filed by the Trust, as the Sponsor deems necessary
or advisable in order to comply with the applicable laws of any such States;
(c) to prepare any filing by the Trust of an application to the New York
Stock Exchange, Inc. or any other national stock exchange or the Nasdaq National
Market for listing, if such filing is determined to be determined to be
necessary or desirable by the Sponsor;
(d) to prepare any filing by the Trust with the Commission of a
registration statement on Form 8-A, including any amendments thereto, if such
filing is determined to be necessary or desirable by the Sponsor;
(e) to negotiate the terms of a purchase agreement and other related
agreements providing for the sale of the Capital Securities to the Initial
Purchasers; and
(f) to negotiate the terms of the Registration Rights Agreement.
Section 4.2 Compensation, Indemnification and Expenses of the Trustee.
The Sponsor, in its capacity as Debenture issuer, agrees: (1) to pay to the
Trustee from time to time such compensation as the Company and the Trustee shall
from time to time agree in writing for all services rendered by it hereunder
(which compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the Trustee
upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this
Indenture (including the compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(3) to indemnify the Property Trustee and the Delaware Trustee and their
authorized agents for, and to hold each of them harmless against, any loss,
liability or expense including taxes (other than taxes based upon, measured by
or determined by the income of any Trustee) incurred without negligence or bad
faith on the part of the Property Trustee, the Delaware Trustee or their
respective authorized agents, as the case may be, arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending any of them against any
claim or
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liability in connection with the exercise or performance of any of their
respective powers or duties hereunder; the provisions of this Section 4.2 shall
survive the resignation or removal of the Delaware Trustee or the Property
Trustee or the termination of this Declaration.
ARTICLE 5
COMMON SECURITIES HOLDER
Section 5.1 Company's Purchase of Common Securities.
On the Closing Date the Company will purchase all of the Common Securities
issued by the Trust, for an amount at least equal to 3% of the capital of the
Trust, at the same time as the Capital Securities are sold.
Section 5.2 Covenants of the Common Securities Holder.
For so long as the Capital Securities remain outstanding, the Company will
covenant (i) to maintain directly or indirectly 100% ownership of the Common
Securities, (ii) to cause the Trust to remain a statutory business trust and not
to voluntarily dissolve, wind up, liquidate or be terminated, except as
permitted by this Declaration, (iii) to use its commercially reasonable efforts
to ensure that the Trust will not be an investment company for purposes of the
Investment Company Act, and (iv) to take no action which would be reasonably
likely to cause the Trust to be classified as an association or a publicly
traded partnership taxable as a corporation for United States federal income tax
purposes.
ARTICLE 6
TRUSTEES
Section 6.1 Number of Trustees.
The number of Trustees initially shall be five (5), and:
(a) at any time before the issuance of any Securities, the Sponsor may, by
written instrument, increase or decrease the number of Trustees; and
(b) after the issuance of any Securities, the number of Trustees may be
increased or decreased by vote of the Holders of a Majority in Liquidation
Amount of the Common Securities voting as a class at a meeting of the Holders of
the Common Securities or by written consent in lieu of such meeting; provided
that the number of Trustees shall be at least three; and provided further that
(1) the Delaware Trustee, in the case of a natural person, shall be a person who
is a resident of the State of Delaware or that, if not a natural person, is an
entity which has its principal place of business in the State of Delaware; (2)
at least one Regular Trustee is an employee or officer of, or is affiliated
with, the Sponsor; and
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(3) one Trustee shall be the Property Trustee for so long as this Declaration is
required to qualify as an indenture under the Trust Indenture Act, and such
Trustee may also serve as Delaware Trustee if it meets the applicable
requirements.
Section 6.2 Delaware Trustee.
If required by the Business Trust Act, one Trustee (the "Delaware Trustee")
shall be:
(a) a natural person who is a resident of the State of Delaware; or
(b) if not a natural person, an entity which has its principal place of
business in the State of Delaware, and otherwise meets the requirements of
applicable law,
provided that, if the Property Trustee has its principal place of business in
the State of Delaware and otherwise meets the requirements of applicable law,
then the Property Trustee shall also be the Delaware Trustee and Section 3.11
shall have no application.
Section 6.3 Property Trustee; Eligibility.
(a) There shall at all times be one Trustee which shall act as Property
Trustee which shall:
(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation organized and doing business under the laws of the
United States of America or any State or Territory thereof or of the
District of Columbia, or a corporation or other Person permitted by
the Commission to act as an institutional trustee under the Trust
Indenture Act, authorized under such laws to exercise corporate trust
owners, having a combined capital and surplus of at least 50 million
U.S. dollars ($50,000,000), and subject to supervision or examination
by federal, State, Territorial or District of Columbia authority. If
such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of the supervising or examining
authority referred to above, then for the purposes of this Section
6.3(a)(ii), the combined capital and surplus of such corporation shall
be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published.
(b) If at any time the Property Trustee shall cease to be eligible to so
act under Section 6.3(a), the Property Trustee shall immediately resign in the
manner and with the effect set forth in Section 6.6(c).
(c) If the Property Trustee has or shall acquire any "conflicting interest"
within the meaning of Section 310(b) of the Trust Indenture Act, the Property
Trustee and the
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Holder of the Common Securities (as if it were the Obliger referred to in
Section 310(b) of the Trust Indenture Act) shall in all respects comply with the
provisions of Section 310(b) of the Trust Indenture Act.
(d) The Guarantee shall be deemed to be specifically described in this
Declaration for purposes of clause (i) of the first provision contained in
Section 310(b) of the Trust Indenture Act.
Section 6.4 Qualifications of Regular Trustees and Delaware Trustee
Generally.
Each Regular Trustee and the Delaware Trustee (unless the Property Trustee
also acts as Delaware 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 Authorized
Officers.
Section 6.5 Initial Trustees.
The initial Regular Trustees shall be:
Allen L. Davis, John R. Farrenkopf and Mark E. Magee, the business address
of all of whom is c/o Provident Bancorp, Inc., One East Fourth Street,
Cincinnati, Ohio 45202.
Section 6.6 Appointment, Removal and Resignation of Trustees.
(a) Subject to Section 6.6(b), Trustees may be appointed or removed
without cause at any time:
(i) until the issuance of any Securities, by written instrument executed
by the Sponsor; and
(ii) after the issuance of any Securities and subject to Section 7.5(j), by
vote of the Holders of a Majority in Liquidation Amount of the Common
Securities voting as a class at a meeting of the Holders of the Common
Securities.
(b) The Trustee that acts as Property Trustee shall not be removed in
accordance with Section 6.6(a) until a successor Trustee possessing the
qualifications to act as Property Trustee under Section 3.8 (a "Successor
Property Trustee") has been appointed and has accepted such appointment by
written instrument executed by such Successor Property Trustee and delivered to
the Regular Trustees and the Sponsor. The Trustee that acts as Delaware Trustee
shall not be removed in accordance with Section 6.6(a) until a successor
Trustee possessing the qualifications to act as Delaware Trustee under Sections
6.2 and 6.4 (a "Successor Delaware Trustee") has been appointed and has
accepted such appointment by written instrument executed by such Successor
Delaware Trustee and delivered to the Regular Trustees and the Sponsor.
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(c) A Trustee appointed to office shall hold office until his or its
successor shall have been appointed, until his death or its dissolution or until
his or its removal or resignation. Any Trustee may resign from office (without
need for prior or subsequent accounting) by an instrument in writing signed by
the Trustee and delivered to the Sponsor and the Trust, which resignation shall
take effect upon such delivery or upon such later date as is specified therein;
provided, however, that:
(i) No such resignation of the Trustee that acts as the Property Trustee
shall be effective:
a. until a Successor Property Trustee has been appointed and has
accepted such appointment by instrument executed by such
Successor Property Trustee and delivered to the Trust, the
Sponsor and the resigning Property Trustee; or
b. until the assets of the Trust have been completely liquidated and
the proceeds thereof distributed to the holders of the
Securities; and
(ii) no such resignation of the Trustee that acts as the Delaware Trustee
shall be effective until a Successor Delaware Trustee has been
appointed and has accepted such appointment by instrument executed by
such Successor Delaware Trustee and delivered to the Trust, the
Sponsor and the resigning Delaware Trustee.
(d) The Holders of the Common Securities or, following an Indenture Event
of Default, the Holders of a Majority in Liquidation Amount of the Capital
Securities, shall use their best efforts to promptly appoint a Successor
Delaware Trustee or Successor Property Trustee, as the case may be, if the
Property Trustee or the Delaware Trustee delivers an instrument of resignation
in accordance with this Section 6.6.
(e) If no Successor Property Trustee or Successor Delaware Trustee, as the
case may be, shall have been appointed and accepted appointment as provided in
this Section 6.6 within 60 days after delivery to the Sponsor and the Trust of
an instrument of resignation or removal, the resigning or removed Property
Trustee or Delaware Trustee, as applicable, may petition any court of competent
jurisdiction for appointment of a Successor Property Trustee or Successor
Delaware Trustee, as applicable. Such court may thereupon, after prescribing
such notice, if any, as it may deem proper, appoint a Successor Property Trustee
or Successor Delaware Trustee, as the case may be.
(f) No Property Trustee or Delaware Trustee shall be liable for the acts or
omissions to act of any Successor Property Trustee or Successor Delaware
Trustee, as the case may be.
Section 6.7 Vacancies among Trustees.
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If a Trustee ceases to hold office for any reason and the number of
Trustees is not reduced pursuant to Section 6.1, or if the number of Trustees
is increased pursuant to Section 6.1, a vacancy shall occur. A resolution
certifying the existence of such vacancy by the Regular Trustees or, if there
are more than two, a majority of the Regular Trustees shall be conclusive
evidence of the existence of such vacancy. The vacancy shall be filled with a
Trustee appointed in accordance with Section 6.6.
Section 6.8 Effect of Vacancies.
The death, resignation, retirement, removal, bankruptcy, dissolution,
liquidation, incompetence or incapacity to perform the duties of a Trustee shall
not operate to annul the Trust. Whenever a vacancy in the number of Regular
Trustees shall occur, until such vacancy is filled by the appointment of a
Regular Trustee in accordance with Section 6.6, the Regular Trustees in office,
regardless of their number, shall have all the powers granted to the Regular
Trustees and shall discharge all the duties imposed upon the Regular Trustees by
this Declaration.
Section 6.9 Meetings.
If there is more than one Regular Trustee, meetings of the Regular Trustees
shall be held from time to time upon the call of any Regular Trustee. Regular
meetings of the Regular Trustees may be held at a time and place fixed by
resolution of the Regular Trustees. Notice of any in-person meetings of the
Regular Trustees shall be hand delivered or otherwise delivered in writing
(including by facsimile, with a hard copy by overnight courier) not less than 48
hours before such meeting. Notice of any telephonic meetings of the Regular
Trustees shall be hand delivered or otherwise delivered in writing (including by
facsimile, with a hard copy by overnight courier) not less than 24 hours before
a meeting. Notices shall contain a brief statement of the time, place and
anticipated purposes of the meeting. The presence (whether in person or by
telephone) of a Regular Trustee at a meeting shall constitute a waiver of notice
of such meeting except where a Regular Trustee attends a meeting for the express
purpose of objecting to the transaction of any activity on the ground that the
meeting has not been lawfully called or convened. Unless provided otherwise in
this Declaration, any action of the Regular Trustees may be taken at a meeting
by vote of a majority of the Regular Trustees present (whether in person or by
telephone) and eligible to vote with respect to such matter, provided that a
Quorum is present, or without a meeting by the unanimous written consent of the
Regular Trustees. In the event there is only one Regular Trustee, any and all
action of such Regular Trustee shall be evidenced by a written consent of such
Regular Trustee.
Section 6.10 Delegation of Power.
(a) Any Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any natural person over the age of 21 his, her or
its power for the purpose of executing any documents contemplated in Section
3.6, including any registration statement or amendment thereto filed with the
Commission, or making any other governmental filing.
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(b) The Regular Trustees shall have power to delegate from time to time to
such of their number or to officers of the Trust the doing of such things and
the execution of such instruments either in the name of the Trust or the names
of the Regular Trustees or otherwise as the Regular Trustees may deem expedient,
to the extent such delegation is not prohibited by applicable law or contrary to
the provisions of the Trust, as set forth herein.
Section 6.11 Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Property Trustee, the Delaware Trustee or
any Regular Trustee that is not a natural person, as the case may be, may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such Trustee
shall be a party, or any corporation succeeding to all or substantially all the
corporate trust business of such Trustee shall be the successor of such Trustee
hereunder, provided such corporation shall be otherwise qualified and eligible
under this Article without the execution or filing of any paper or any further
act on the part of any of the parties hereto.
ARTICLE 7
SECURITIES
Section 7.1 General Provisions Regarding Securities.
(a) The Regular Trustees shall on behalf of the Trust issue a class of
capital securities representing undivided beneficial ownership interests in the
assets of the Trust (the "Transfer Restricted Securities"), a class of capital
securities to be only issued in exchange for the Transfer Restricted Securities
(the "New Capital Securities," and together with the Transfer Restricted
Securities the "Capital Securities"), and one class of common securities
representing undivided beneficial ownership interests in the assets of the Trust
(the "Common Securities").
(i) Capital Securities. The Capital Securities of the Trust have an
aggregate liquidation amount with respect to the assets of the Trust
of $100,000,000 and a liquidation amount with respect to the assets of
the Trust of $1,000 per Capital Security. The New Capital Security
Certificates and the Transfer Restricted Capital Certificates
evidencing the Capital Securities shall be substantially in the form
of Exhibit A to the Declaration provided, that the New Capital
Security Certificate shall not contain any of the provisions following
the Property Trustee's authentication, with such changes and additions
thereto or deletions therefrom as may be required by ordinary usage,
custom or practice or to conform to the rules of any stock exchange on
which the Capital Securities are listed.
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(ii) Common Securities. The Common Securities of the Trust have an
aggregate liquidation amount with respect to the assets of the Trust
of $3,093,000 and a liquidation amount with respect to the assets of
the Trust of $1,000 per Common Security. The Common Security
Certificates evidencing the Common Securities shall be substantially
in the form of Exhibit B to the Declaration, with such changes and
additions thereto or deletions therefrom as may be required by
ordinary usage, custom or practice.
(b) Payment of Distributions on, and the Redemption Price payable upon
redemption of, the Capital Securities and the Common Securities, as applicable,
shall be made Pro Rata based on the liquidation amount of such Capital
Securities and Common Securities; provided, however, that if on any date on
which such amounts are payable an Indenture Event of Default shall have occurred
and be continuing, no payment of any Distribution on, or the Redemption Price
of, any of the Common Securities, and no other payment on account of the
redemption, liquidation or other acquisition of such Common Securities, shall be
made unless payment in full in cash of all accumulated and unpaid Distributions
on all of the outstanding Capital Securities for all distribution periods
terminating on or prior thereto, or in the case of amounts payable on redemption
the full amount of the Redemption Price for all of the outstanding Capital
Securities then called for redemption, shall have been made or provided for, and
all funds available to the Property Trustee shall first be applied to the
payment in full in cash of all Distributions on, or amounts payable on
redemption of, the Capital Securities then due and payable.
(c) The Trust shall issue no securities or other interests in the assets of
the Trust other than the Capital Securities and the Common Securities.
(d) The Certificates shall be signed on behalf of the Trust by a Regular
Trustee. Such signature shall be the manual or facsimile signature of any
present or any future Regular Trustee. In case a Regular Trustee of the Trust
who shall have signed any of the Certificates shall cease to be such Regular
Trustee before the Certificates so signed shall be delivered by the Trust, such
Certificates nevertheless may be delivered as though the person who signed such
Certificates had not ceased to be such Regular Trustee; and any Certificate may
be signed on behalf of the Trust by such persons who, at the actual date of
execution of such Certificate, shall be the Regular Trustees of the Trust,
although at the date of the execution and delivery of this Declaration any such
person was not such a Regular Trustee. Certificates shall be printed,
lithographed or engraved or may be produced in any other manner as is reasonably
acceptable to the Regular Trustees, as evidenced by their execution thereof, and
may have such letters, numbers or other marks of identification or designation
and such legends or endorsements as the Regular Trustees may deem appropriate,
or as may be required to comply with any law or with any rule or regulation of
any stock exchange on which Securities may be listed, or to conform to usage.
A Certificate shall not be valid until authenticated by the manual
signature of an authorized officer of the Property Trustee. Such signature shall
be conclusive evidence that the Certificate has been authenticated under this
Declaration.
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Upon a written order of the Trust signed by one Regular Trustee, the
Property Trustee shall authenticate the Certificates for original issue. The
aggregate number of Capital Securities outstanding at any time shall not exceed
the liquidation amount set forth in Section 7(a)(i).
The Property Trustee may appoint an authenticating agent acceptable to the
Trust to authenticate Certificates. An authenticating agent may authenticate
Certificates whenever the Property Trustee may do so. Each reference in this
Declaration 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 Sponsor or an Affiliate of the Sponsor.
(e) The consideration received by the Trust for the issuance of the
Securities shall constitute a contribution to the capital of the Trust and shall
not constitute a loan to the Trust.
(f) Upon issuance of the Securities as provided in this Declaration, the
Securities so issued shall be deemed to be validly issued, fully paid and
non-assessable.
(g) Every Person, by virtue of having become a Holder or a Capital Security
Beneficial Owner in accordance with the terms of this Declaration, shall be
deemed to have expressly assented and agreed to the terms of, and shall be bound
by, this Declaration and the terms of the Securities, the Guarantee, the
Indenture and the Debentures.
(h) The Securities shall have no preemptive rights.
Section 7.2 Distributions.
(a) Holders of Securities shall be entitled to receive cumulative cash
distributions at the rate per annum of 8.60% of the stated liquidation amount of
$1,000 per Security, calculated on the basis of a 360-day year consisting of
twelve 30-day months. For any period shorter than a full 180-day semi-annual
period, distributions will be computed on the basis of the actual number of days
elapsed in such 180-day semi-annual period. Except as otherwise provided in
Section 7.1(b), distributions shall be made on the Capital Securities and the
Common Securities on a Pro Rata basis. Distributions on the Securities shall,
from the date of original issue, accrue and be cumulative and shall be payable
semi-annually only to the extent that the Trust has funds available for the
payment of such Distributions in the Property Account. Distributions not paid on
the scheduled payment date will accumulate and compound semi-annually (to the
extent permitted by applicable law) at the rate of 8.60% per annum ("Compounded
Distributions"). "Distributions" shall mean ordinary cumulative distributions
together with any Compounded Distributions. If and to the extent that the
Company makes a payment of interest (including Compounded Interest (as defined
in the Indenture)), premium and/or principal on the Debentures held by the
Property Trustee (the amount of any such payment being a "Payment Amount"), the
Property Trustee shall and is directed, to the extent funds are available for
that purpose except as otherwise provided in
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Section 7.1(b), to make a Pro Rata distribution (a "Distribution") of the
Payment Amount to Holders.
(b) Distributions on the Securities will be cumulative, will accrue from
the date of initial issuance and will be payable semi-annually in arrears on
June 1 and December 1 of each year, commencing June 1, 1997, when, as and if
available for payment, by the Property Trustee, except as otherwise described
below. If Distributions are not paid when scheduled, the accrued Distributions
shall be paid to the Holders of record of Securities as they appear on the books
and records of the Trust on the record date as determined under Section 7.2(c).
(c) Distributions on the Securities will be payable to the Holders thereof
as they appear on the books and records of the Trust on the relevant record
dates, which relevant record date shall be the 15th of the month prior to the
relevant payment dates. In the event that any date on which Distributions are
payable on the Securities is not a Business Day, payment of the Distribution
payable on such date will be made on the next succeeding day which is a Business
Day (without any interest or other payment in respect of any such delay) with
the same force and effect as if made on such date.
Section 7.3 Redemption of Securities.
(a) Except as otherwise provided in Section 7.1(b), upon the repayment or
redemption, in whole or in part, of the Debentures, the proceeds from such
repayment or redemption shall be simultaneously applied Pro Rata to redeem
Securities having an aggregate liquidation amount equal to the aggregate
principal amount of the Debentures so repaid or redeemed for an amount equal to
the redemption price paid by the Company in respect of such Debentures plus an
amount equal to accrued and unpaid Distributions thereon through the date of the
redemption or such lesser amount as shall be received by the Trust in respect of
the Debentures so repaid or redeemed (the "Redemption Price"). Holders will be
given not less than 30 or more than 60 days notice of such redemption.
(b) If fewer than all the outstanding Securities are to be so redeemed, the
Common Securities and the Capital Securities will be redeemed Pro Rata, and the
Capital Securities to be redeemed will be redeemed as described in Section 7.4
below.
(c) If, at any time, a Special Event shall occur and be continuing, the
Regular Trustees may elect to, unless the Debentures are redeemed, within 90
days following the occurrence of such Special Event, subject to the receipt of
any necessary approval by the Federal Reserve, dissolve the Trust upon not less
than 30 nor more than 60 days' notice and, after paying or making reasonable
provision to pay all claims and obligations of the Trust, if any, in accordance
with Section 3808(e) of the Business Trust Act, cause the Debentures to be
distributed to the holders of the Securities in liquidation of the Trust.
(d) On the date fixed for any distribution of Debentures, upon dissolution
of the Trust, (i) the Capital Securities and the Common Securities will no
longer be deemed to be outstanding and (ii) certificates representing Securities
will be deemed to represent the
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Debentures having an aggregate principal amount equal to the stated liquidation
amount of, and bearing accrued and unpaid distributions equal to accrued and
unpaid Distributions on, such Securities until such certificates are presented
to the Sponsor or its agent for transfer or reissuance.
Section 7.4 Redemption Procedures.
(a) Notice of any redemption of, or notice of distribution of Debentures in
exchange for, the Securities (a "Redemption/Distribution Notice") will be given
by the Trust by mail to each Holder of Securities to be redeemed or exchanged
not fewer than 30 nor more than 60 days before the date fixed for redemption or
exchange thereof which, in the case of a redemption, will be the date fixed for
redemption of the Debentures. For purposes of the calculation of the date of
redemption or exchange and the dates on which notices are given pursuant to this
Section 7.4, a Redemption/Distribution Notice shall be deemed to be given on the
day such notice is first mailed by first-class mail, postage prepaid, to Holders
of Securities. Each Redemption/Distribution Notice shall be addressed to the
Holders of Securities at the address of each such Holder appearing in the books
and records of the Trust. No defect in the Redemption/Distribution Notice or in
the mailing of either thereof with respect to any Holder shall affect the
validity of the redemption or exchange proceedings with respect to any other
Holder.
(b) The Trust may not redeem fewer than all outstanding Capital Securities
unless all accrued and unpaid interest has been paid in full on all Capital
Securities then outstanding plus accrued but unpaid interest to the date of
redemption. Subject to the foregoing, if fewer than all the outstanding Capital
Securities are to be redeemed, the Capital Securities to be so redeemed will be
redeemed Pro Rata. For all purposes of this Declaration, unless the context
otherwise requires, all provisions relating to the redemption of Capital
Securities shall relate, in the case of any Capital Security redeemed or to be
redeemed only in part, to the portion of the aggregate liquidation amount of
Capital Securities which has been or is to be redeemed.
(c) If Securities are to be redeemed and the Trust gives a
Redemption/Distribution Notice, which notice may only be issued if the
Debentures are redeemed as set out in this Section 7.4 (which notice will be
irrevocable), then (A) while the Capital Securities are in book-entry only form,
by 1:00 p.m., New York City time, on the redemption date, the Property Trustee,
upon receipt of funds, will deposit irrevocably with the DTC or its nominee (or
successor Clearing Agency or its nominee) funds sufficient to pay the applicable
Redemption Price with respect to the Capital Securities and will give the DTC
irrevocable instructions and authority to pay the Redemption Price to the
Holders of the Capital Securities, and (B) with respect to Capital Securities
and Common Securities issued in definitive form, the Property Trustee will pay
the relevant Redemption Price to the Holders of such Securities by check mailed
to the address of the relevant Holder appearing on the books and records of the
Trust on the redemption date. If a Redemption/Distribution Notice shall have
been given and funds deposited as required, then on the Redemption Date,
Distributions will cease to accrue on the Securities so called for redemption
and all rights of Holders of such Securities will cease, except the right of the
Holders of such Securities to receive the
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Redemption Price, but without interest on such Redemption Price. If any date
fixed for redemption of Securities is not a Business Day, then payment of the
Redemption Price payable on such date will be made on the next succeeding day
that is a Business Day (and without any interest or other payment in respect of
any such delay) except that, if such Business Day falls in the next calendar
year, such payment will be made on the immediately preceding Business Day, in
each case with the same force and effect as if made on such date fixed for
redemption. If payment of the Redemption Price in respect of any Securities is
improperly withheld or refused and not paid either by the Property Trustee or by
the sponsor as guarantor pursuant to the Guarantee, Distributions on such
Securities will continue to accrue at the then applicable rate from the original
redemption date to the actual date of payment, in which case the actual payment
date will be considered the date fixed for redemption for purposes of
calculating the Redemption Price. For these purposes, the applicable Redemption
Price shall not include Distributions which are being paid to Holders who were
Holders on a relevant record date. Upon satisfaction of the foregoing
conditions, then immediately prior to the close of business on the date of such
deposit or payment, all rights of Holders of such Debentures so called for
redemption will cease, except the right of the Holders to receive the Redemption
Price, but without interest on such Redemption Price, and from and after the
date fixed for redemption, such Debentures will not accrue Distributions or bear
interest.
Neither the Regular Trustees nor the Trust shall be required to register or
cause to be registered the transfer or exchange of any Securities that have been
called for redemption, except in the case of any Securities being redeemed in
part, any portion thereof not to be redeemed.
(d) Subject to the foregoing and applicable law (including, without
limitation, United States federal securities laws), the Company or its
subsidiaries may at any time and from time to time purchase outstanding Capital
Securities by tender, in the open market or by private agreement.
Section 7.5 Voting Rights of Capital Securities.
(a) Except as provided in this Article 7 and as otherwise required by the
Business Trust Act, the Trust Indenture Act and other applicable law, the
Holders of the Capital Securities will have no voting rights.
(b) Subject to the requirement of the Property Trustee obtaining a tax
opinion in certain circumstances set forth in Section 7.5(d) below, the Holders
of a Majority in Liquidation Amount of the Capital Securities have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Property Trustee, or to direct the exercise of any trust or
power conferred upon the Property Trustee hereunder, including the right to
direct the Property Trustee, as holder of the Debentures, to (i) exercise the
remedies available to it under the Indenture as a holder of the Debentures or
(ii) consent to any amendment or modification of the Indenture or the
Debentures where such consent shall be required; provided, however, that where
a consent or action under the Indenture would require the consent or act of the
holders of more than a majority of the aggregate
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liquidation amount of Debentures affected thereby, only the Holders of the
percentage of the aggregate stated liquidation amount of the Capital Securities
which is at least equal to the percentage required under the Indenture may
direct the Property Trustee to give such consent to take such action.
(c) If the Property Trustee fails to enforce its rights under the
Debentures after a Holder of record of Capital Securities has made a written
request, such Holder of record of Capital Securities may institute a legal
proceeding directly against the Company to enforce the Property Trustee's rights
under the Indenture without first instituting any legal proceeding against the
Property Trustee or any other person or entity. Notwithstanding the foregoing,
if a Trust Enforcement Event has occurred and is continuing and such event is
attributable to the failure of the Company to make any required payment when due
under the Indenture, then a Holder of Capital Securities may directly institute
a proceeding against the Company for enforcement of such payment under the
Indenture.
(d) The Property Trustee shall notify all Holders of the Capital Securities
of any notice of any Indenture Event of Default received from the Company with
respect to the Debentures. Such notice shall state that such Indenture Event of
Default also constitutes a Trust Enforcement Event. Except with respect to
directing the time, method, and place of conducting a proceeding for a remedy,
the Property Trustee shall be under no obligation to take any of the actions
described in Section 7.5(b)(i) and (ii) above unless the Property Trustee has
obtained an opinion of independent tax counsel to the effect that as a result of
such action, the Trust will not fail to be classified as a grantor trust for
United States federal income tax purposes and each Holder will be treated as
owning an undivided beneficial ownership interest in the Debentures.
(e) In the event the consent of the Property Trustee, as the Holder of the
Debentures, is required under the Indenture with respect to any amendment or
modification of the Indenture, the Property Trustee shall request the direction
of the Holders of the Securities with respect to such amendment or modification
and shall vote with respect to such amendment or modification as directed by a
Majority in Liquidation Amount of the Securities voting together as a single
class; provided, however, that where a consent under the Indenture would require
the consent of the Holders of more than a majority of the aggregate principal
amount of the Debentures, the Property Trustee may only give such consent at the
direction of the Holders of at least the same proportion in aggregate stated
liquidation amount of the Securities. The Property Trustee shall not take any
such action in accordance with the directions of the Holders of the Securities
unless the Property Trustee has obtained an opinion of tax counsel to the effect
that, as a result of such action, the Trust will not be classified as other than
a grantor trust for United States federal income tax purposes and each Holder
will be treated as owning an undivided beneficial ownership interest in the
Debentures.
(f) A waiver of an Indenture Event of Default with respect to the
Debentures will constitute a waiver of the corresponding Trust Enforcement
Event.
(g) Any required approval or direction of Holders of Capital Securities may
be given at a separate meeting of Holders of Capital Securities convened for
such purpose, at a
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meeting of all of the Holders of Securities or pursuant to written consent. The
Regular Trustees will cause a notice of any meeting at which Holders of Capital
Securities are entitled to vote, or of any matter upon which action by written
consent of such Holders is to be taken, to be mailed to each Holder of record of
Capital Securities. Each such notice will include a statement setting forth the
following information: (i) the date of such meeting or the date by which such
action is to be taken; (ii) a description of any resolution proposed for
adoption at such meeting on which such Holders are entitled to vote or of such
matter upon which written consent is sought; and (iii) instructions for the
delivery of proxies or consents.
(h) No vote or consent of the Holders of Capital Securities will be
required for the Trust to redeem and cancel Capital Securities or distribute
Debentures in accordance with this Declaration.
(i) Notwithstanding that Holders of Capital Securities are entitled to vote
or consent under any of the circumstances described above, any of the Securities
that are owned at such time by the Company, the Trustees or any entity directly
or indirectly controlled by, or under direct or indirect common control with,
the Company or the Trustees, shall not be entitled to vote or consent and shall,
for purposes of such vote or consent, be treated as if such Securities were not
outstanding, provided, however that persons otherwise eligible to vote to whom
the Company or any of its subsidiaries have pledged Capital Securities may vote
or consent with respect to such pledged Capital Securities under any of the
circumstances described herein.
(j) Unless an Indenture Event of Default shall have occurred and be
continuing, the Holders of the Capital Securities will have no rights to appoint
or remove the Trustees, who may be appointed, removed or replaced solely by the
Company, as the Holder of all of the Common Securities. If an Indenture Event of
Default has occurred and is continuing, the Property Trustee and the Delaware
Trustee may be removed at such time by a Majority in Liquidation Amount of the
Capital Securities.
Section 7.6 Voting Rights of Common Securities.
(a) Except as provided under Section 6.1(b) or this Section 7.6 or as
otherwise required by the Business Trust Act, the Trust Indenture Act or other
applicable law or provided by this Declaration, the Holders of the Common
Securities will have no voting rights.
(b) The Holders of the Common Securities are entitled, in accordance with
Article 5, to vote to appoint, remove or replace any Trustee or to increase or
decrease the number of Trustees.
(c) Subject to Section 2.6 and only after all Trust Enforcement Events with
respect to the Capital Securities have been cured, waived, or otherwise
eliminated and subject to the requirement of the Property Trustee obtaining a
tax opinion in certain circumstances set forth in this paragraph (c), the
Holders of a Majority in Liquidation Amount of the Common Securities have the
right to direct the time, method and place of conduction any proceeding
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for any remedy available to the Property Trustee, or direct the exercise of any
trust or power conferred upon the Property Trustee hereunder, including the
right to direct the Property Trustee, as Holder of the Debentures, to (i)
exercise the remedies available to it under the Indenture as a Holder of the
Debentures, or (ii) consent to any amendment or modification of the Indenture or
the Debentures where such consent shall be required; provided, however, that
where a consent or action under the Indenture would require the consent or act
of the Holders of more than a majority of the aggregate liquidation amount of
Debentures affected thereby, only the Holders of the percentage of the aggregate
stated liquidation amount of the Common Securities which is at least equal to
the percentage required under the Indenture may direct the Property Trustee to
have such consent or take such action. Except with respect to directing the
time, method, and place of conducting a proceeding for a remedy, the Property
Trustee shall be under no obligation to take any of the actions described in
clauses (i) and (ii) above unless the Property Trustee has obtained an opinion
of independent tax counsel to the effect that, as a result of such action, for
United States federal income tax purposes the Trust will not fail to be
classified as a grantor trust and each Holder will be treated as owning an
undivided beneficial ownership interest in the Debentures.
(d) If the Property Trustee fails to enforce its rights under the
Debentures after a Holder of record of Common Securities has made a written
request, such Holder of record of Common Securities may directly institute a
legal proceeding directly against the Company, as sponsor of the Trust, to
enforce the Property Trustee's rights under the Debentures without first
instituting any legal proceeding against the Property Trustee or any other
person or entity.
(e) A waiver of an Indenture Event of Default with respect to the
Debentures will constitute a waiver of the corresponding Trust Enforcement
Event.
(f) Any required approval or direction of Holders of Common Securities may
be given at a separate meeting of Holders of Common Securities convened for such
purpose, at a meeting of all of the Holders of Securities or pursuant to written
consent. The Regular Trustees will cause a notice of any meeting at which
Holders of Common Securities are entitled to vote, or of any matter on which
action by written consent of such Holders is to be taken, to be mailed to each
Holder of record of Common Securities. Each such notice will include a statement
setting forth the following information: (i) the date of such meeting or the
date by which such action is to be taken; (ii) a description of any resolution
proposed for adoption at such meeting on which such Holders are entitled to vote
or of such matter upon which written consent is sought; and (iii) instructions
for the delivery of proxies or consents.
(g) No vote or consent of the holders of the Common Securities will be
required for the Trust to redeem and cancel Common Securities or to distribute
Debentures in accordance with this Declaration and the terms of the Securities.
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Section 7.7 Paying Agent.
In the event that any Capital Securities are not in book-entry only form,
the Trust shall maintain in the Borough of Manhattan, City of New York, State of
New York, an office or agency where the Capital Securities may be presented for
payment. The Trust may appoint the paying agent and may appoint one or more
additional paying agents in such other locations as it shall determine. The term
"Paying Agent" includes any additional paying agent. The Trust may change any
Paying Agent without prior notice to the Holders. The Trust shall notify the
Property Trustee of the name and address of any Paying Agent not a party to this
Declaration. If the Trust fails to appoint or maintain another entity as Paying
Agent, the Property Trustee shall act as such. The Trust or any of its
Affiliates may act as Paying Agent. The Bank of New York shall initially act as
Paying Agent for the Capital Securities and the Common Securities. In the event
the Property Trustee shall no longer be the Paying Agent, the Regular Trustees
shall appoint a successor (which shall be a bank or trust company acceptable to
the Regular Trustees and the Company) to act as Paying Agent. The Paying Agent
shall be permitted to resign as Paying Agent upon 30 days' written notice to the
Property Trustee and the Company.
Section 7.8 Transfer of Securities.
(a) The Trust shall cause to be kept at the Corporate Trust Office of the
Property Trustee a register (the register maintained in such office being herein
sometimes referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Trust shall provide for the
registration of Capital Securities and of transfers of Capital Securities. The
Property Trustee is hereby appointed "Security Registrar" for the purpose of
registering Capital Securities and transfers of Capital Securities as herein
provided.
(b) Upon surrender for registration of transfer of any Security at an
office or agency of the Trust designated for such purpose, the Trust shall
execute, and the Property Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Securities of any
authorized denominations and of a like aggregate principal amount.
(c) At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denominations and of a like aggregate principal
amount, upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the Trust shall
execute, and the Property Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
(d) Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Trust or the Property Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Trust and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
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(e) No service charge shall be made for any registration of transfer or
exchange of Securities, but the Trust may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities.
(f) If the Securities are to be redeemed in part, the Trust shall not be
required (A) to issue, register the transfer of or exchange any Securities
during a period beginning at the opening of business 15 days before the day of
the mailing of a notice of redemption of any such Securities selected for
redemption under Section 7.4 and ending at the close of business on the day of
such mailing, or (B) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part.
Any Capital Security in global form may be endorsed with or have
incorporated in the text thereof such legends or recitals or changes not
inconsistent with the provisions of this Declaration as may be required by the
Depositary or by the National Association of Securities Dealers, Inc. in order
for the Capital Securities to be tradeable on the PORTAL Market or as may be
required for the Capital Securities to be tradeable on any other market
developed for trading of securities pursuant to Rule 144A or required to comply
with any applicable law or any regulation thereunder or with Regulation S or
with the rules and regulations of any securities exchange upon which the Capital
Securities may be listed or traded or to conform with any usage with respect
thereto, or to indicate any special limitations or restrictions to which any
particular Capital Securities are subject.
Section 7.9 Mutilated, Destroyed, Lost or Stolen Certificates.
If:
(a) any mutilated Certificates should be surrendered to the Regular
Trustees, or if the Regular Trustees shall receive evidence to their
satisfaction of the destruction, loss or theft of any Certificate; and
(b) there shall be delivered to the Regular Trustees such security or
indemnity as may be required by them to keep each of them, the Sponsor and the
Trust harmless, then, in the absence of notice that such Certificate shall have
been acquired by a bona fide purchaser, any Regular Trustee on behalf of the
Trust shall execute and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
denomination. In connection with the issuance of any new Certificate under this
Section 7.9, the Regular Trustees 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 Certificate issued pursuant to this Section shall
constitute conclusive evidence of an ownership interest in the relevant
Securities, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
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Section 7.10 Deemed Security Holders.
The Trustees may treat the Person in whose name any Certificate shall be
registered on the books and records of the Trust as the sole holder of such
Certificate and of the Securities represented by such Certificate for purposes
of receiving Distributions and for all other purposes whatsoever and,
accordingly, shall not be bound to recognize any equitable or other claim to or
interest in such Certificate or in the Securities represented by such
Certificate on the part of any Person, whether or not the Trust shall have
actual or other notice thereof.
Section 7.11 Global Securities.
If the Trust shall establish that the Capital Securities are to be issued
in the form of one or more Global Securities (each, a "Global Security"), then a
Regular Trustee on behalf of the Trust shall execute and the Property Trustee
shall authenticate and deliver one or more Global Securities that (i) shall
represent and shall be denominated in an amount equal to the aggregate
liquidation amount of all of the Capital Securities to be issued in the form of
Global Securities and not yet cancelled, (ii) shall be registered in the name of
the Depositary for such Global Security or Capital Securities or the nominee of
such Depositary, and (iii) shall be delivered by the Property Trustee to such
Depositary or pursuant to such Depositary's instructions. Global Securities
shall bear a legend substantially to the following effect:
"This Capital Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a Depositary
or a nominee of a Depositary. Notwithstanding the provisions of Section 7.8,
unless and until it is exchanged in whole or in part for Capital Securities in
definitive registered form, a Global Security representing all or a part of the
Capital Securities may not be transferred in the manner provided in Section 7.8
except as a whole by the Depositary to a nominee of such Depositary or by a
nominee of such Depositary to such Depositary or another nominee of such
Depositary or by such Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary. Every Capital Security delivered upon
registration or transfer of, or in exchange for, or in lieu of, this Global
Security shall be a Global Security subject to the foregoing, except in the
limited circumstances described above. Unless this certificate is presented by
an authorized representative of DTC to the Trust 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 to be 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."
Definitive Capital Securities issued in exchange for all or a part of a
Global Security pursuant to this Section 7.11 shall be registered in such names
and in such authorized denominations as the Depositary, pursuant to instructions
from its direct or indirect participants or otherwise, shall instruct the
Property Trustee. Upon execution and
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authentication, the Property Trustee shall deliver such definitive Capital
Securities to the persons in whose names such definitive Capital Securities are
so registered.
At such time as all interests in Global Securities have been redeemed,
repurchased or canceled, such Global Securities shall be, upon receipt thereof,
canceled by the Property Trustee in accordance with standing procedures and
instructions existing between the Depositary and the Custodian. At any time
prior to such cancellation, if any interest in Global Securities is exchanged
for definitive Capital Securities, redeemed, canceled or transferred to a
transferee who receives definitive Capital Securities therefor or any definitive
Capital Security is exchanged or transferred for part of Global Securities, the
principal amount of such Global Securities shall, in accordance with the
standing procedures and instructions existing between the Depositary and the
Custodian, be reduced or increased, as the case may be, and an endorsement shall
be made on such Global Securities by the Property Trustee or the Custodian, at
the direction of the Property Trustee, to reflect such reduction or increase.
The Trust and the Property Trustee may for all purposes, including the
making of payments due on the Capital Securities, deal with the Depositary as
the authorized representative of the Holders for the purposes of exercising the
rights of Holders hereunder. The rights of the owner of any beneficial interest
in a Global Security shall be limited to those established by law and agreements
between such owners and depository participants or Euroclear and Cedel;
provided, that no such agreement shall give any rights to any person against the
Trust or the Property Trustee without the written consent of the parties so
affected. Multiple requests and directions from and votes of the Depositary as
holder of Capital Securities in global form with respect to any particular
matter shall not be deemed inconsistent to the extent they do not represent an
amount of Capital Securities in excess of those held in the name of the
Depositary or its nominee.
If at any time the Depositary for any Capital Securities represented by one
or more Global Securities notifies the Trust that it is unwilling or unable to
continue as Depositary for such Capital Securities or if at any time the
Depositary for such Capital Securities shall no longer be eligible under this
Section 7.11, the Trust shall appoint a successor Depositary with respect to
such Capital Securities. If a successor Depositary for such Capital Securities
is not appointed by the Trust within 90 days after the Trust receives such
notice or becomes aware of such ineligibility, the Trust's election that such
Capital Securities be represented by one or more Global Securities shall no
longer be effective and a Regular Trustee on behalf of the Trust shall execute,
and the Property Trustee will authenticate and deliver Capital Securities in
definitive registered form, in any authorized denominations, in an aggregate
liquidation amount equal to the principal amount of the Global Security or
Capital Securities representing such Capital Securities in exchange for such
Global Security or Capital Securities.
The Trust may at any time and in its sole discretion determine that the
Capital Securities issued in the form of one or more Global Securities shall no
longer be represented by a Global Security or Capital Securities. In such event
a Regular Trustee on behalf of the Trust shall execute, and the Property
Trustee, shall authenticate and deliver, Capital Securities
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in definitive registered form, in any authorized denominations, in an aggregate
liquidation amount equal to the principal amount of the Global Security or
Capital Securities representing such Capital Securities, in exchange for such
Global Security or Capital Securities.
Notwithstanding any other provisions of this Declaration (other than the
provisions set forth in Section 7.12), Global Securities may not be transferred
as a whole except by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the Depositary
or by the Depositary or any such nominee to a successor Depositary or a nominee
of such successor Depositary.
Interests of beneficial owners in Global Security may be transferred or
exchanged for definitive Capital Securities and definitive Capital Securities
may be transferred or exchange for Global Securities in accordance with rules of
the Depositary and the provisions of Section 7.13.
Any Capital Security in global form may be endorsed with or have
incorporated in the text thereof such legends or recitals or changes not
inconsistent with the provisions of this Declaration as may be required by the
Custodian, the Depositary or by the National Association of Securities Dealers,
Inc. in order for the Capital Securities to be tradeable on the PORTAL Market or
as may be required for the Capital Securities to be tradeable on any other
market developed for trading of securities pursuant to Rule 144A or required to
comply with any applicable law or any regulation thereunder or with Regulation S
or with the rules and regulations of any securities exchange upon which the
Capital Securities may be listed or traded or to conform with any usage with
respect thereto, or to indicate any special limitations or restrictions to which
any particular Capital Securities are subject.
Section 7.12 Restrictive Legend.
(a) Each Global Security and definitive Capital Security that constitutes a
Restricted Security shall bear the following legend (the "Private Placement
Legend") on the face thereof until three years after the later of the date of
original issue and the last date on which the Sponsor or any affiliate of the
Sponsor was the owner of such Capital Securities (or any predecessor thereto)
(the "Resale Restriction Termination Date"), unless otherwise agreed by the
Trust and the Holder thereof:
"THIS CAPITAL SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY
STATE SECURITIES LAWS AND NEITHER THIS CAPITAL SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THIS CAPITAL SECURITY IS HEREBY NOTIFIED THAT THE SELLER MAY
BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THIS CAPITAL
SECURITY, BY ITS ACCEPTANCE HEREOF, REPRESENTS, ACKNOWLEDGES AND AGREES FOR
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THE BENEFIT OF THE TRUST THAT: (I) IT HAS ACQUIRED A "RESTRICTED"
SECURITY WHICH HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT; (II)
IT WILL NOT OFFER, SELL OR OTHERWISE TRANSFER THIS CAPITAL SECURITY
PRIOR TO THE LATER OF THE DATE WHICH IS THREE YEARS AFTER THE DATE OF
ORIGINAL ISSUANCE HEREOF AND THE LAST DATE ON WHICH THE TRUST OR ANY
AFFILIATE OF THE TRUST WAS THE OWNER OF SUCH RESTRICTED SECURITIES (OR
ANY PREDECESSOR) EXCEPT (A) TO THE TRUST, (B) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THIS CAPITAL SECURITY IS ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A, TO A PERSON WHO THE SELLER REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (D) OUTSIDE THE UNITED STATES IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND, IN EACH CASE, IN ACCORDANCE WITH THE APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY APPLICABLE
JURISDICTION; AND (III) IT WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED
TO, NOTIFY ANY PURCHASER FROM IT OF THIS CAPITAL SECURITY OF THE RESALE
RESTRICTIONS SET FORTH IN (II) ABOVE, ANY OFFER, SALE OR OTHER
DISPOSITION PURSUANT TO THE FOREGOING CLAUSES (II)(D) AND (E) IS
SUBJECT TO THE RIGHT OF THE ISSUER OF THIS CAPITAL SECURITY AND THE
PROPERTY TRUSTEE FOR SUCH CAPITAL SECURITIES TO REQUIRE THE DELIVERY OF
AN OPINION OF COUNSEL, CERTIFICATIONS OR OTHER INFORMATION ACCEPTABLE
TO THEM IN FORM AND SUBSTANCE."
Any Capital Security (or security issued in exchange or substitution
therefor) as to which such restrictions on transfer shall have expired in
accordance with their terms may, upon satisfaction of the requirements of
Section 7.12(b) and surrender of such Capital Security for exchange to the
Capital Security registrar in accordance with the provisions of this Section
7.12(a), be exchanged for a new Capital Security or Capital Securities, of like
tenor and aggregate liquidation amount, which shall not bear the restrictive
legend required by this Section 7.12(a).
Upon any sale or transfer of any Restricted Security (including any
interest in a Global Security) (i) that is effected pursuant to an effective
registration statement under the Securities Act or (ii) in connection with which
the Property Trustee receives certificates and other information (including an
opinion of counsel, if requested) reasonably acceptable to the Company and the
Property Trustee to the effect that such security will no longer be subject to
the resale restrictions under federal and state securities laws, then (A) in the
case of a Restricted Security in definitive form, the Capital Security registrar
or co-registrar shall permit the holder thereof to exchange such Restricted
Security for a security that does not bear the legend set forth in Section
314(a), and shall rescind any such restrictions on transfer
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and (B) in the case of Restricted Securities represented by a Global Security,
such Capital Security shall no longer be subject to the restrictions contained
in the legend set forth in Section 7.12(a) (but still subject to the other
provisions hereof). In addition, any Capital Security (or security issued in
exchange or substitution therefor) as to which the restrictions on transfer
described in the legend set forth in Section 7.12(a) have expired by their
terms, may, upon surrender thereof (in accordance with the terms of this
Indenture) together with such certifications and other information (including an
opinion of counsel having substantial experience in practice under the
Securities Act and otherwise reasonably acceptable to the Company, addressed to
the Company and the Property Trustee and in a form acceptable to the Company, to
the effect that the transfer of such Restricted Security has been made in
compliance with Rule 144 or such successor provision) acceptable to the Company
and the Property Trustee as either of them may reasonably require, be exchanged
for a new Capital Security or Capital Securities of like tenor and aggregate
liquidation amount, which shall not bear the restrictive legends set forth in
Section 7.12(a).
Section 7.13 Special Transfer Provisions.
(a) At any time at the request of the beneficial holder of a Capital
Security in global form, such beneficial holder shall be entitled to obtain a
definitive Capital Security upon written request to the Property Trustee in
accordance with the standing instructions and procedures existing between the
Depositary and the Property Trustee for the issuance thereof. Any transfer of a
beneficial interest in a Capital Security in global form which cannot be
effected through book-entry settlement must be effected by the delivery to the
transferee (or its nominee) of a definitive Capital Security or Securities
registered in the name of the transferee (or its nominee) on the books
maintained by the Security Registrar. With respect to any such transfer, the
Property Trustee will cause, in accordance with the standing instructions and
procedures existing between the Depositary and the Property Trustee, the
aggregate liquidation amount of the Global Security to be reduced and, following
such reduction, the Property Trustee will cause Definitive Capital Securities in
the appropriate aggregate liquidation amount in the name of such transferee (or
its nominee) and bearing such restrictive legends as may be required by this
Declaration to be delivered. In connection with any such transfer, the Property
Trustee may request such representations and agreements relating to the
restrictions on transfer of such Capital Securities from such transferee (or
such transferee's nominee) as the Property Trustee may reasonably require.
(b) So long as the Capital Securities are eligible for book-entry
settlement, or unless otherwise required by law, upon any transfer of a
definitive Capital Security to a QIB in accordance with Rule 144A, unless
otherwise requested by the transferor, and upon receipt of the definitive
Capital Security being so transferred, together with a certification from the
transferor that the transferor reasonably believes the transferee is a QIB (or
other evidence satisfactory to the Property Trustee), the Property Trustee shall
make an endorsement on the Restricted Global Security to reflect an increase in
the aggregate liquidation amount of the Restricted Global Security, and the
Property Trustee shall cancel such definitive Capital Security and cause, in
accordance with the standing instructions and procedures existing between the
Depositary and the Property Trustees, the aggregate liquidation amount of
Capital Securities represented by the Restricted Global Security to be increased
accordingly.
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(c) So long as the Capital Securities are eligible for book-entry
settlement, or unless otherwise required by law, upon any transfer of a
definitive Capital Security in accordance with Regulation S, if requested by the
transferor, and upon receipt of the definitive Capital Security or Capital
Securities being so transferred, together with a certification from the
transferor that the transfer was made in accordance with Rule 903 or 904 of
Regulation S or Rule 144 under the Securities Act (or other evidence
satisfactory to the Property Trustee), the Property Trustee shall make an
endorsement on the Regulation S Global Security to reflect an increase in the
aggregate liquidation amount of the Capital Securities represented by the
Regulation S Global Security, the Property Trustee shall cancel such definitive
Capital Security or Capital Securities and cause, in accordance with the
standing instructions and procedures existing between the Depositary and the
Property Trustee, the aggregate liquidation amount of Capital Securities
represented by the Regulation S Global Capital Security to be increased
accordingly.
(d) If a holder of a beneficial interest in the Restricted Global Security
wishes at any time to exchange its interest in the Restricted Global Security
for an interest in the Regulation S Global Security, or to transfer its interest
in the Restricted Global Security to a person who wishes to take delivery
thereof in the form of an interest in the Regulation S Global Security, such
holder may, subject to the rules and procedures of the Depositary and to the
requirements set forth in the following sentence, exchange or cause the exchange
or transfer or cause the transfer of such interest for an equivalent beneficial
interest in the Regulation S Global Security. Upon receipt by the Property
Trustee, as transfer agent of (1) instructions given in accordance with the
Depositary's procedures from or on behalf of a holder of a beneficial interest
in the Restricted Global Security, directing the Property Trustee (via DWAC), as
transfer agent, to credit or cause to be credited a beneficial interest in the
Regulation S Global Security in an amount equal to the beneficial interest in
the Restricted Global Security to be exchanged or transferred, (2) a written
order given in accordance with the Depositary's procedures containing
information regarding the Euroclear or Cedel account to be credited with such
increase and the name of such account, and (3) a certificate given by the holder
of such beneficial interest stating that the exchange or transfer of such
interest has been made pursuant to and in accordance with Rule 903 or Rule 904
of Regulation S or Rule 144 under the Securities Act (or other evidence
satisfactory to the Property Trustee), the Property Trustee, as transfer agent,
shall promptly deliver appropriate instructions to the Depositary (via DWAC),
its nominee, or the custodian for the Depositary, as the case may be, to reduce
or reflect on its records a reduction of the Restricted Global Security by the
aggregate liquidation amount of the beneficial interest in such Restricted
Global Security to be so exchanged or transferred from the relevant participant,
and the Property Trustee, as transfer agent, shall promptly deliver appropriate
instructions (via DWAC) to the Depositary, its nominee, or the custodian for the
Depositary, as the case may be, concurrently with such reduction, to increase or
reflect on its records an increase of the liquidation amount of such Regulation
S Global Security by the aggregate liquidation amount of the beneficial interest
in such Restricted Global Security to be so exchanged or transferred, and to
credit or cause to be credited to the account of the person specified in such
instructions (who may be Morgan Guaranty Trust Company of New York, Brussels
office, as operator of Euroclear or Cedel or another agent member of Euroclear
or Cedel, or both, as the case may be, acting for and on
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behalf of them) a beneficial interest in such Regulation S Global Security equal
to the reduction in the liquidation amount of such Restricted Global Security.
(e) If a holder of a beneficial interest in the Regulation S Global
Security wishes at any time to exchange its interest in the Regulation S Global
Security for an interest in the Restricted Global Security, or to transfer its
interest in the Regulation S Global Capital Security to a person who wishes to
take delivery thereof in the form of an interest in the Restricted Global
Security, such holder may, subject to the rules and procedures of Euroclear or
Cedel and the Depositary, as the case may be, and to the requirements set forth
in the following sentence, exchange or cause the exchange or transfer or cause
the transfer of such interest for an equivalent beneficial interest in such
Restricted Global Capital Security. Upon receipt by the Property Trustee, as
transfer agent of (l) instructions given in accordance with the procedures of
Euroclear or Cedel and the Depositary, as the case may be, from or on behalf of
a beneficial owner of an interest in the Regulation S Global Security directing
the Property Trustee, as transfer agent, to credit or cause to be credited a
beneficial interest in the Restricted Global Security in an amount equal to the
beneficial interest in the Regulation S Global Security to be exchanged or
transferred, (2) a written order given in accordance with the procedures of
Euroclear or Cedel and the Depositary, as the case may be, containing
information regarding the account with the Depositary to be credited with such
increase and the name of such account, and (3) prior to the expiration of the
Restricted Period, a certificate given by the holder of such beneficial interest
and stating that the person transferring such interest in such Regulation S
Global Security reasonably believes that the person acquiring such interest in
the Restricted Global Security is a QIB and is obtaining such beneficial
interest in a transaction meeting the requirements of Rule 144A and any
applicable securities laws of any state of the United States or any other
jurisdiction (or other evidence satisfactory to the Property Trustee), the
Property Trustee, as transfer agent, shall promptly deliver (via DWAC)
appropriate instructions to the Depositary, its nominee, or the custodian for
the Depositary, as the case may be, to reduce or reflect on its records a
reduction of the Regulation S Global Security by the aggregate liquidation
amount of the beneficial interest in such Regulation S Global Security to be
exchanged or transferred, and the Property Trustee, as transfer agent, shall
promptly deliver (via DWAC) appropriate instructions to the Depositary, its
nominee, or the custodian for the Depositary, as the case may be, concurrently
with such reduction, to increase or reflect on its records an increase of the
liquidation amount of the Restricted Global Security by the aggregate
liquidation amount of the beneficial interest in the Regulation S Global
Security to be so exchanged or transferred, and to credit or cause to be
credited to the account of the person specified in such instructions a
beneficial interest in the Restricted Global Security equal to the reduction in
the liquidation amount of the Regulation S Global Security. After the expiration
of the Restricted Period, the certification requirement set forth in clause (3)
of the second sentence of this Section 7.13(e) will no longer apply to such
exchanges and transfers.
(f) Any beneficial interest in one of the Global Securities that is
transferred to a person who takes delivery in the form of an interest in the
other Global Security will, upon transfer, cease to be an interest in such
Global Security and become an interest in the other Global Security and,
accordingly, will thereafter be subject to all transfer restrictions and
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other procedures applicable to beneficial interests in such other Global
Security for as long as it remains such an interest.
(g) Prior to or on the 40th day after the later of the commencement of the
offering of the Capital Securities and the Closing Date (the "Restricted
Period"), beneficial interests in a Regulation S Global Security may only be
held through Morgan Guaranty Trust Company of New York, Brussels office, as
operator of Euroclear or Cedel or another agent member of Euroclear and Cedel
acting for and on behalf of them, unless delivery is made through the Restricted
Global Security in accordance with the certification requirements hereof. During
the Restricted Period, interests in the Regulation S Global Security, may be
exchanged for interests in the Restricted Global Security or for definitive
Securities only in accordance with the certification requirements described
above.
ARTICLE 8
DISSOLUTION AND TERMINATION OF TRUST
Section 8.1 Dissolution and Termination of Trust.
(a) The Trust shall dissolve upon the earliest of:
(i) the bankruptcy or liquidation of the Holder of the Common
Securities or the Sponsor;
(ii) the filing of a certificate of dissolution or its equivalent with
respect to the Sponsor; the consent of the Holders of at least a
Majority in Liquidation Amount of the Securities to the filing of
a certificate of cancellation with respect to the Trust or the
revocation of the Sponsor's charter and the expiration of 90 days
after the date of revocation without a reinstatement thereof;
(iii) the entry by a court of competent jurisdiction of an order of
judicial dissolution of the Sponsor or the Trust;
(iv) the time when all of the Securities shall have been called for
redemption and the amounts necessary for redemption thereof shall
have been paid to the Holders in accordance with the terms of the
Securities;
(v) upon the election of the Regular Trustees, following the
occurrence and continuation of a Special Event and subject to
the receipt of any necessary approvals by the Federal Reserve,
pursuant to which the Trust shall have been dissolved in
accordance with the terms of the Securities, and all of the
Debentures shall have been distributed to the Holders of
Securities in exchange for all of the Securities; or
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(vi) the time when all of the Regular Trustees and the Sponsor shall have
consented to dissolution of the Trust provided such action is taken
before the issuance of any Securities.
(b) As soon as is practicable after the occurrence of an event referred to
in Section and upon completion of the winding up of the Trust, the Trustees
(each of whom is hereby authorized to take such action) shall terminate the
Trust by filing a certificate of cancellation with the Secretary of State of the
State of Delaware.
(c) The provisions of Section 3.9 and Article 9 shall survive the
termination of the Trust.
Section 8.2 Liquidation Distribution Upon Termination and Dissolution of
the Trust.
(a) In the event of any voluntary or involuntary liquidation, dissolution,
winding-up or termination of the Trust (each a "Liquidation"), the Holders of
the Capital Securities on the date of the Liquidation will be entitled to
receive, out of the assets of the Trust available for distribution to Holders of
Securities after paying or making reasonable provision to pay all claims and
obligations of the Trust, if any, in accordance with Section 3808(e) of the
Business Trust Act, distributions in cash or other immediately available funds
in an amount equal to the aggregate of the stated liquidation amount of $1,000
per Security plus accrued and unpaid Distributions thereon to the date of
payment (such amount being the "Liquidation Distribution"), unless, in
connection with such Liquidation, Debentures in an aggregate stated liquidation
amount equal to the aggregate stated liquidation amount of, with a distribution
rate identical to the distribution rate of, and accrued and unpaid distributions
equal to accrued and unpaid distributions on, such Securities shall be
distributed on a Pro Rata, subject to Section 7.1(b), basis to the Holders of
the Securities in exchange for such Securities after paying or making reasonable
provision to pay all claims and obligations of the Trust, if any, in accordance
with Section 3808(e) of the Business Trust Act.
(b) If, upon any such Liquidation, 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 the amounts payable directly by the
Trust on the Securities shall be paid on a Pro Rata basis. The Holders of the
Common Securities will be entitled to receive distributions upon any such
Liquidation Pro Rata with the Holders of the Capital Securities except that if
an Indenture Event of Default has occurred and is continuing, the Capital
Securities shall have a preference over the Common Securities with regard to
such distributions in accordance with Section 7.1(b).
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ARTICLE 9
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
Section 9.1 Liability.
(a) Except as expressly set forth in this Declaration, the Guarantee and
the terms of the Securities, the Sponsor:
(i) shall not be personally liable for the return of any portion of the
capital contributions (or any return thereon) of the Holders of the
Securities which shall be made solely from assets of the Trust; and
(ii) shall not be required to pay to the Trust or to any Holder of
Securities any deficit upon dissolution of the Trust or otherwise.
(b) The Holder of the Common Securities shall be liable for all of the
debts and obligations of the Trust (other than with respect to the Securities)
to the extent not satisfied out of the Trust's assets.
(c) Pursuant to Section 3803(a) of the Business Trust Act, the Holders of
the Capital Securities 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.
Section 9.2 Exculpation.
(a) No Indemnified Person shall be liable, responsible or accountable in
damages or otherwise to the Trust or any Covered Person for any loss, damage or
claim incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Declaration or by law, except that
an Indemnified Person shall be liable or any such loss, damage or claim incurred
by reason of such Indemnified Person's gross negligence or willful misconduct
with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good faith
upon the records of the Trust and upon such information, opinions, reports or
statements presented to the Trust by any Person as to matters the Indemnified
Person reasonably believes are within such other Person's professional or expert
competence and who has been selected with reasonable care by or on behalf of the
Trust, including information, opinions, reports or statements as to the value
and amount of the assets, liabilities, profits, losses or any other facts
pertinent to the existence and amount of assets from which Distributions to
Holders of Securities might properly be paid.
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Section 9.3 Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified Person has
duties (including fiduciary duties) and liabilities relating thereto to the
Trust or to any other Covered Person, an Indemnified Person acting under this
Declaration shall not be liable to the Trust or to an other Covered Person for
its good faith reliance on the provisions of this Declaration. The provisions of
this Declaration, to the extent that they restrict the duties and liabilities of
an Indemnified Person otherwise existing at law or in equity (other than the
duties imposed on the Property Trustee under the Trust Indenture Act), are
agreed by the parties hereto to replace such other duties and liabilities of
such Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between any
Covered Persons; or
(ii) whenever this Declaration or any other agreement contemplated
herein or therein provides that an Indemnified Person shall act
in a manner that is, or provides terms that are, fair and
reasonable to the Trust or any Holder of Securities,
the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by the Indemnified
Person shall not constitute a breach of this Declaration or any other agreement
contemplated herein or of any duty or obligation of the Indemnified Person at
law or in equity or otherwise.
(c) Whenever in this Declaration an Indemnified Person is permitted or
required to make a decision:
(i) in its "discretion" or under a grant of similar authority, the
Indemnified Person shall be entitled to consider such interests
and factors as it desires, including its own interests, and shall
have no duty or obligation to give any consideration to any
interest of or factors affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express standard, the
Indemnified Person shall act under such express standard and
shall not be subject to any other or different standard imposed
by this Declaration or by applicable law.
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Section 9.4 Indemnification.
(a)(i) The Company shall indemnify, to the full extent permitted by law,
any Company Indemnified Person who was or is a party or is threatened to be made
a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the Trust) by reason of the fact that he is or was a
Company Indemnified Person against expenses (including attorney fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with such action, suit or proceeding if he acted in good
fait and in a manner he reasonably believed to be in or not opposed to the best
interests of the Trust, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful. The termination of
any action, suit or proceeding by judgment, order, settlement, conviction or
upon a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the Company Indemnified Person did not act in good faith and in
a manner which he reasonably believed to be in or not opposed to the best
interests of the Trust, and, with respect to any criminal action or proceeding,
had reasonable cause to believe that his conduct was unlawful.
(ii) The Company shall indemnify, to the full extent permitted by law, any
Company Indemnified Person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit by or in the right
of the Trust to procure a Judgment in its favor by reason of the fact that he is
or was a Company Indemnified Person against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Trust
and except that no such indemnification shall be made in respect of any claim,
issue or matter as to which such Company Indemnified Person shall have been
adjudged to be liable to the Trust unless and only to the extent that the Court
of Chancery of Delaware or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which such Court of Chancery
or such other court shall deem proper.
(iii) Any indemnification under paragraphs (i) and (ii) of this Section
9.4(a) (unless ordered by a court) shall be made by the Company only as
authorized in the specific case upon a determination that indemnification of
the Company Indemnified Person is proper in the circumstances because he has
met the applicable standard of conduct set forth in paragraphs (i) and (ii).
Such determination shall be made (1) by the Regular Trustees by a majority vote
of a quorum consisting of such Regular Trustees who were not parties to such
action, suit or proceeding, (2) if such a quorum is not obtainable, or, even if
obtainable, if a quorum of disinterested Regular Trustees so directs, by
independent legal counsel in a written opinion, or (3) by the Common Security
Holder of the Trust.
(iv) Expenses (including attorneys' fees) incurred by a Company Indemnified
Person in defending a civil, criminal, administrative or investigative action,
suit or proceeding referred to in paragraphs (i) and (ii) of this Section
9.4(a) shall be paid by the
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Company in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such Company Indemnified
Person to repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the Company as authorized in this Section 9.4(a).
Notwithstanding the foregoing, no advance shall be made by the Company if a
determination is reasonably and promptly made (i) by the Regular Trustees by a
majority vote of a quorum of disinterested Regular Trustees, (ii) if such a
quorum is not obtainable, or, even if obtainable, if a quorum of disinterested
Regular Trustees so directs, by independent legal counsel in a written opinion
or (iii) the Common Security Holder of the Trust, that, based upon the facts
known to the Regular Trustees, counsel or the Common Security Holder at the time
such determination is made, such Company Indemnified Person acted in bad faith
or in a manner that such person did not believe to be in or not opposed to the
best interests of the Trust, or, with respect to any criminal proceeding, that
such Company Indemnified Person believed or had reasonable cause to believe his
conduct was unlawful. In no event shall any advance be made in instances where
the Regular Trustees, independent legal counsel or Common Security Holder
reasonably determine that such person deliberately breached his duty to the
Trust or its Common or Capital Security Holders.
(v) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other paragraphs of this Section 9.4(a) shall not be
deemed exclusive of any other rights to which those seeking indemnification and
advancement of expenses may be entitled under any agreement, vote of
stockholders or disinterested directors of the Company or Capital Security
Holders of the Trust or otherwise, both as to action in his official capacity
and as to action in another capacity while holding such office. All rights to
indemnification under this Section 9.4(a) shall be deemed to be provided by a
contract between the Company and each Company Indemnified Person who serves in
such capacity at any time while this Section 9.4(a) is in effect. Any repeal or
modification of this Section 9.4(a) shall not affect any rights or obligations
then existing.
(vi) The Company or the Trust may purchase and maintain insurance on behalf
of any person who is or was a Company Indemnified Person against any liability
asserted against him and incurred by him in any such capacity, or arising out of
his status as such, whether or not the Company would have the power to indemnify
him against such liability under the provisions of this Section 9.4(a).
(vii) For purposes of this Section 9.4(a), references to "the Trust" shall
include, in addition to the resulting or surviving entity, any constituent
entity (including any constituent of a constituent) absorbed in a consolidation
or merger, so that any person who is or was a director, trustee, officer or
employee of such constituent entity, or is or was serving at the request of such
constituent entity as a director, trustee, officer, employee or agent of another
entity, shall stand in the same position under the provisions of this Section
9.4(a) with respect to the resulting or surviving entity as he would have with
respect to such constituent entity if its separate existence had continued.
(viii) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Section 9.4(a) shall, unless otherwise provided when
authorized or
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ratified, continue as to a person who has ceased to be a Company Indemnified
Person and shall inure to the benefit of the heirs, executors and administrators
of such a person. The obligation to indemnify as set forth in this Section
9.4(a) shall survive the satisfaction and discharge of this Declaration.
(b) The Company agrees to indemnify the (i) Property Trustee, (ii) the
Delaware Trustee, (iii) an Affiliate of the Property Trustee and the Delaware
Trustee, and (iv) any officers, directors, shareholders, members, partners,
employees, representatives, custodians, nominees or agents of the Property
Trustee and the Delaware Trustee (each of the Persons in (i) through (iv) being
referred to as a "Fiduciary Indemnified Person") for, and to hold each Fiduciary
Indemnified Person harmless against, any loss, liability or expense incurred
without negligence or bad faith on its part, arising out of or in connection
with the acceptance or administration of the trust or trusts hereunder,
including the costs and expenses (including reasonable legal fees and expenses)
of defending itself against or investigating any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder. The obligation to indemnify as set forth in this Section 9.4(b) shall
survive the satisfaction and discharge of this Declaration.
Section 9.5 Outside Businesses.
Any Covered Person, the Sponsor, the Delaware Trustee and the Property
Trustee may engage in or possess an interest in other business ventures of any
nature or description, independently or with others, similar or dissimilar to
the activities of the Trust, and the Trust and the Holders of Securities shall
have no rights by virtue of this Declaration in and to such independent ventures
or the income or profits derived therefrom, and the pursuit of any such venture,
even if competitive with the activities of the Trust, shall not be deemed
wrongful or improper. No Covered Person, the Sponsor, the Delaware Trustee or
the Property Trustee shall be obligated to present any particular investment or
other opportunity to the Trust even if such opportunity is of a character that,
if presented to the Trust, could be taken by the Trust, and any Covered Person,
the Sponsor, the Delaware Trustee and the Property Trustee shall have the right
to take for its own account (individually or as a partner or fiduciary) or to
recommend to others any such particular investment or other opportunity. Any
Covered Person, the Delaware Trustee and the Property Trustee may engage or be
interested in any financial or other transaction with the Sponsor or any
Affiliate of the Sponsor, or may act as depositary for, trustee or agent for, or
act on any committee or body of holders of, securities or other obligations of
the Sponsor or its Affiliates.
ARTICLE 10
ACCOUNTING
Section 10.1 Fiscal Year.
The fiscal year ("Fiscal Year") of the Trust shall be the calendar year, or
such other year as is required by the Code.
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Section 10.2 Certain Accounting Matters.
(a) At all times during the existence of the Trust, the Regular Trustees
shall keep, or cause to be kept, full books of account, records and supporting
documents, which shall reflect in reasonable detail, each transaction of the
Trust. The books of account shall be maintained on the accrual method of
accounting, in accordance with generally accepted accounting principles. The
Trust shall use the accrual method of accounting for United States federal
income tax purposes. The books of account and the records of the Trust shall be
examined by and reported upon as of the end of each Fiscal Year of the Trust by
a firm of independent certified public accountants selected by the Regular
Trustees.
(b) The Regular Trustees shall cause to be prepared and delivered to each
of the Holders of Securities, within 90 days after the end of each Fiscal Year
of the Trust, annual financial statements of the Trust, including a balance
sheet of the Trust as of the end of such Fiscal Year, and the related statements
of income or loss.
(c) The Regular Trustees shall cause to be duly prepared and delivered to
each of the Holders of Securities, an annual United States federal income tax
information statement, required by the Code, containing such information with
regard to the Securities held by each Holder as is required by the Code and the
Treasury Regulations. Notwithstanding any right under the Code to deliver any
such statement at a later date, the Regular Trustees shall endeavor to deliver
all such statements within 30 days after the end of each Fiscal Year of the
Trust.
(d) The Regular Trustees shall cause to be duly prepared and filed with the
appropriate taxing authority, an annual United States federal income tax return,
on a Form 1041 or such other form required by United States federal income tax
law, and any other annual income tax returns required to be filed by the Regular
Trustees on behalf of the Trust with any state or local taxing authority.
Section 10.3 Banking.
The Trust shall maintain one or more bank accounts in the name and for the
sole benefit of the Trust; provided, however, that all payments of funds in
respect of the Debentures held by the Property Trustee shall be made directly to
the Property Account and no other funds of the Trust shall be deposited in the
Property Account. The sole signatories for such accounts shall be designated by
the Regular Trustees; provided, however, that the Property Trustee shall
designate the signatories for the Property Account.
Section 10.4 Withholding.
The Trust and the Regular Trustees shall comply with all withholding
requirements under United States federal, state and local law. The Trust shall
request, and the Holders shall provide to the Trust, such forms or certificates
as are necessary to establish an exemption from withholding with respect to each
Holder, and any representations and forms as shall reasonably be requested by
the Trust to assist it in determining the extent of,
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and in fulfilling, its withholding obligations. The Regular Trustees shall file
required forms with applicable jurisdictions and, unless an exemption from
withholding is properly established by a Holder, shall remit amounts withheld
with respect to the Holder to applicable jurisdictions. To the extent that the
Trust is required to withhold and pay over any amounts to any authority with
respect to distributions or allocations to any Holder, the amount withheld shall
be deemed to be a distribution in the amount of the withholding to the Holder.
In the event of any claimed over withholding, Holders shall be limited to an
action against the applicable jurisdiction. If the amount required to be
withheld was not withheld from actual Distributions made, the Trust may reduce
subsequent Distributions by the amount of such withholding.
ARTICLE 11
AMENDMENTS AND MEETINGS
Section 11.1 Amendments.
(a) Except as otherwise provided in this Declaration or by any applicable
terms of the Securities, this Declaration may only be amended by a written
instrument approved and executed by (i) the Regular Trustees (or, if there are
more than two Regular Trustees, a majority of the Regular Trustees) and (ii) by
the Property Trustee if the amendment affects the rights, powers, duties,
obligations or immunities of the Property Trustee; and (iii) by the Delaware
Trustee if the amendment affects the rights, powers, duties, obligations or
immunities of the Delaware Trustee.
(b) No amendment shall be made, and any such purported amendment shall be
void and ineffective:
(i) unless, in the case of any proposed amendment, the Property Trustee
shall have first received an Officers' Certificate from each of the
Trust and the Sponsor that such amendment is permitted by, and
conforms to, the terms of this Declaration (including the terms of the
Securities);
(ii) unless, in the case of any proposed amendment which affects the
rights, powers, duties, obligations or immunities of the Property
Trustee, the Property Trustee shall have first received:
a. an Officers' Certificate from each of the Trust and the Sponsor
that such amendment is permitted by, and conforms to, the terms
of this Declaration (including the terms of the Securities); and
b. an opinion of counsel (who may be counsel to the Sponsor or the
Trust) that such amendment is permitted by, and conforms to, the
terms of this Declaration (including the terms of the
Securities); and
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(iii) to the extent the result of such amendment would be to:
a. cause the Trust to be classified other than as a grantor trust
for United States federal income tax purposes at all times that
any Securities are outstanding;
b. reduce or otherwise adversely affect the powers of the Property
Trustee in contravention of the Trust Indenture Act; or
c. cause the Trust to be deemed to be an Investment Company required
to be registered under the Investment Company Act.
(c) At such time after the Trust has issued any Securities that remain
outstanding, any amendment that would (i) adversely affect the powers,
preferences or special rights of the Securities, whether by way of amendment to
this Declaration or otherwise, (ii) result in the dissolution, winding-up or
termination of the Trust other than pursuant to the terms of this Declaration,
(iii) change the amount or timing of any distribution of the Securities or
otherwise adversely affect the amount of any distribution required to be made in
respect of the Securities as of a specified date or (iv) restrict the right of a
Holder of Securities to institute suit for the enforcement of any such payment
on or after such date, then the holders of the Securities voting together as a
single class will be entitled to vote on such amendment or proposal and such
amendment or proposal shall not be effective except with the approval of at
least a Majority in Liquidation Amount of the Securities affected thereby;
provided that, if any amendment or proposal referred to in clause (i) above
would adversely affect only the Capital Securities or the Common Securities,
then only the affected class will be entitled to vote on such amendment or
proposal and such amendment or proposal shall not be effective except with the
approval of a Majority in Liquidation Amount of such class of Securities.
(d) Section 7.8 and this Section 11.1 shall not be amended without the
consent of all of the Holders of the Securities.
(e) Article 4 shall not be amended without the consent of the Holders of a
Majority in Liquidation Amount of the Common Securities.
(f) The rights of the Holders of the Common Securities under Article 5 to
increase or decrease the number of, and appoint and remove Trustees shall not be
amended without the consent of the Holders of a Majority in Liquidation Amount
of the Common Securities.
(g) Notwithstanding Section 11.1(c), this Declaration may be amended
without the consent of the Holders of the Securities to:
(i) to cure any ambiguity, correct or supplement any provisions in this
Declaration that may be inconsistent with any other provision, or to
make any other provisions with respect to matters or questions arising
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under this Declaration that shall not be inconsistent with the other
provisions of this Declaration;
(ii) to modify, eliminate or add to any provisions of this Declaration to
such extent as shall be necessary to ensure that the Trust will be
classified as a grantor trust for United States federal income tax
purposes at all times that any Securities are outstanding or to
ensure that the Trust will not be required to register as an
"investment company" under the Investment Company Act; or
(iii) to conform to any change in Rule 3a-5 or written change in
interpretation or application of Rule 3a-5 by any legislative body,
court, government agency or regulatory authority which amendment does
not have a material adverse effect on the rights, preferences or
privileges of the Holders.
provided, however, that such action shall not adversely affect in any material
respect the interests of any Holder of Capital Securities or Common Securities,
and any amendments of this Declaration shall become effective when notice
thereof is given to the Holders of Capital Securities and Common Securities.
(h) The issuance of a Trustees' Authorization Certificate by the Regular
Trustees for purposes of establishing the terms and form of the Securities as
contemplated by Section 7.1 shall not be deemed an amendment of this Declaration
subject to the provisions of this Section 11.1.
Section 11.2 Meetings of the Holders of Securities; Action by Written
Consent.
(a) Meetings of the Holders of any class of Securities may be called at any
time by the Regular Trustees (or as provided in the terms of the Securities) to
consider and act on any matter on which Holders of such class of Securities are
entitled to act under the terms of this Declaration, the terms of the Securities
or the rules of any stock exchange on which the Capital Securities are listed or
admitted for trading. The Regular Trustees shall call a meeting of the Holders
of such class if directed to do so by the Holders of at least 10% in Liquidation
Amount of such class of Securities. Such direction shall be given by delivering
to the Regular Trustees one or more calls in a writing stating that the signing
Holders of Securities wish to call a meeting and indicating the general or
specific purpose for which the meeting is to be called. Any Holders of
Securities calling a meeting shall specify in writing the Certificates held by
the Holders of Securities exercising the right to call a meeting and only those
Securities specified shall be counted for purposes of determining whether the
required percentage set forth in the second sentence of this paragraph has been
met.
(b) Except to the extent otherwise provided in the terms of the Securities,
the following provisions shall apply to meetings of Holders of Securities:
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(i) notice of any such meeting shall be given to all the Holders of
Securities having a right to vote thereat at least 7 days and not
more than 60 days before the date of such meeting. Whenever a vote,
consent or approval of the Holders of Securities is permitted or
required under this Declaration or the rules of any stock exchange
on which the Capital Securities are listed or admitted for trading,
such vote, consent or approval may be given at a meeting of the
Holders of Securities. Any action that may be taken at a meeting of
the Holders of Securities may be taken without a meeting if a
consent in writing setting forth the action so taken is signed by
the Holder of Securities owning not less than the minimum amount of
Securities in liquidation amount that would be necessary to
authorize or take such action at a meeting at which all Holders of
Securities having a right to vote thereon were present and voting.
Prompt notice of the taking of action without a meeting shall be
given to the Holders of Securities entitled to vote who have not
consented in writing. The Regular Trustees may specify that any
written ballot submitted to the Security Holders for the purpose of
taking any action without a meeting shall be returned to the Trust
within the time specified by the Regular Trustees;
(ii) each Holder of a Security may authorize any Person to act for it by
proxy on all matters in which a Holder of Securities is entitled to
participate, including waiving notice of any meeting, or voting or
participating at a meeting. No proxy shall be valid after the
expiration of 11 months from the date thereof unless otherwise
provided in the proxy. Every proxy shall be revocable at the pleasure
of the Holder of Securities executing such proxy. Except as otherwise
provided herein, all matters relating to the giving, voting or
validity of proxies shall be governed by the General Corporation Law
of the State of Delaware relating to proxies, and judicial
interpretations thereunder, as if the Trust were a Delaware
corporation and the Holders of the Securities were stockholders of a
Delaware corporation;
(iii) each meeting of the Holders of the Securities shall be conducted by
the Regular Trustees or by such other Person that the Regular
Trustees may designate; and
(iv) unless the Business Trust Act, this Declaration, the terms of the
Securities, the Trust Indenture Act or the listing rules of any stock
exchange on which the Capital Securities are then listed for trading,
otherwise provides, the Regular Trustees, in their sole discretion,
shall establish all other provisions relating to meetings of Holders
of Securities, including notice of the time, place or purpose of any
meeting at which any matter is to be voted on by any Holders of
Securities, waiver of any such notice, action by consent without a
meeting, the establishment of a record date, quorum requirements,
voting in person
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or by proxy or any other matter with respect to the exercise of any
such right to vote.
ARTICLE 12
REPRESENTATIONS OF PROPERTY TRUSTEE
AND DELAWARE TRUSTEE
Section 12.1 Representations and Warranties of the Property Trustee.
The Trustee that acts as initial Property Trustee represents and warrants
to the Trust and to the Sponsor at the date of this Declaration, and each
Successor Property Trustee represents and warrants to the Trust and the Sponsor
at the time of the Successor Property Trustee's acceptance of its appointment as
Property Trustee that:
(a) the Property Trustee is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation or
organization, with trust power and authority to execute and deliver, and to
carry out and perform its obligations under the terms of, this Declaration;
(b) the Property Trustee satisfies the requirements set forth in Section
6.3(a);
(c) the execution, delivery and performance by the Property Trustee of this
Declaration has been duly authorized by all necessary corporate action on the
part of the Property Trustee. This Declaration has been duly executed and
delivered by the Property Trustee, and it constitutes a legal, valid and binding
obligation of the Property Trustee, enforceable against it in accordance with
its terms, subject to applicable bankruptcy, reorganization, moratorium,
insolvency and other similar laws affecting creditors' rights generally and to
general principles of equity and the discretion of the court (regardless of
whether the enforcement of such remedies is considered in a proceeding in equity
or at law);
(d) the execution, delivery and performance of this Declaration by the
Property Trustee does not conflict with or constitute a breach of the articles
of association or incorporation, as the case may be, or the by-laws (or other
similar organizational documents) of the Property Trustee; and
(e) no consent, approval or authorization of, or registration with or
notice to, any State or federal banking authority is required for the execution,
delivery or performance by the Property Trustee of this Declaration.
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Section 12.2 Representations and Warranties of the Delaware Trustee.
The Trustee that acts as initial Delaware Trustee represents and warrants
to the Trust and to the Sponsor at the date of this Declaration, and each
Successor Delaware Trustee represents and warrants to the Trust and the Sponsor
at the time of the Successor Delaware Trustee's acceptance of its appointment as
Delaware Trustee that:
(a) the Delaware Trustee satisfies the requirements set forth in Section
6.2 and 6.4 and has the power and authority to execute and deliver, and to
carry out and perform its obligations under the terms of, this Declaration
and, if it is not a natural person, is duly organized, validly existing and in
good standing under the laws of its jurisdiction of incorporation or
organization;
(b) the Delaware Trustee has been authorized to perform its obligations
under the Certificate of Trust and this Declaration. This Declaration under
Delaware law constitutes a legal, valid and binding obligation of the Delaware
Trustee, enforceable against it in accordance with its terms, subject to
applicable bankruptcy, reorganization, moratorium, insolvency and other similar
laws affecting creditors' rights generally and to general principles of equity
and the discretion of the court (regardless of whether the enforcement of such
remedies is considered in a proceeding in equity or at law); and
(c) no consent, approval or authorization of, or registration with or
notice to, any State or federal banking authority is require for the execution,
delivery or performance by the Delaware Trustee of this Declaration.
ARTICLE 13
MISCELLANEOUS
Section 13.1 Notices.
All notices provided for in this Declaration shall be in writing, duly
signed by the party giving such notice, and shall be delivered, telecopied or
mailed by registered or certified mail, as follows:
(a) if given to the Trust, in care of the Regular Trustees at the Trust's
mailing address set forth below (or such other address as the Trust may give
notice of to the Property Trustee, the Delaware Trustee and the Holders of the
Securities):
Provident Capital Trust I
c/o Provident Bancorp, Inc.
One East Fourth Street
Cincinnati, Ohio 45202-2861
Attention: General Counsel
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(b) if given to the Delaware Trustee, at the mailing address set forth
below (or such other address as the Delaware Trustee may give notice of to the
Regular Trustees, the Property Trustee and the Holders of the Securities):
The Bank of New York (Delaware)
White Clay Center, Route 273
Newark, Delaware 19711
Attention: Corporation Trust Department
(c) if given to the Property Trustee, at its Corporate Trust Office (or
such other address as the Property Trustee may give notice of to the Regular
Trustees, the Delaware Trustee and the Holders of the Securities).
(d) if given to the Holder of the Common Securities, at the mailing address
of the Sponsor set forth below (or such other address as the Holder of the
Common Securities may give notice of to the Property Trustee, the Delaware
Trustee and the Trust):
(e) if given to any other Holder, at the address set forth on the books and
records of the Trust.
All such notices shall be deemed to have been given when received in person,
telecopied with receipt confirmed or mailed by first class mail, postage prepaid
except that if a notice or other document is refused delivery or cannot be
delivered because of a changed address of which no notice was given, such notice
or other document shall be deemed to have been delivered on the date of such
refusal or inability to deliver.
Section 13.2 Governing Law.
This Declaration and the rights of the parties hereunder shall be governed
by and interpreted in accordance with the laws of the State of Delaware.
Section 13.3 Intention of the Parties.
It is the intention of the parties hereto that the Trust be classified for
United States federal income tax purposes as a grantor trust. The provisions of
this Declaration shall be interpreted in a manner consistent with such
classification.
Section 13.4 Headings.
Headings contained in this Declaration are inserted for convenience of
reference only and do not affect the interpretation of this Declaration or any
provision hereof.
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Section 13.5 Successors and Assigns.
Whenever in this Declaration any of the parties hereto is named or referred
to, the successors and assigns of such party shall be deemed to be included, and
all covenants and agreements in this Declaration by the Sponsor and the Trustees
shall bind and inure to the benefit of their respective successors and assigns,
whether so expressed.
Section 13.6 Partial Enforceability.
If any provision of this Declaration, or the application of such provision
to any Person or circumstance, shall be held invalid, the remainder of this
Declaration, or the application of such provision to Persons or circumstances
other than those to which it is held invalid, shall not be affected thereby.
Section 13.7 Counterparts.
This Declaration may contain more than one counterpart of the signature
page and this Declaration may be executed by the affixing of the signature of
each of the Trustees to one of such counterpart signature pages. All of such
counterpart signature pages shall be read as though one, and they shall have the
same force and effect as though all of the signers had signed a single signature
page.
Section 13.8 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Declaration or in any suit against any Trustee for any action taken or omitted
by it as a Trustee, a court in its discretion may require the filing by any
party litigant in the suit of an undertaking to pay the costs of the suit, and
the court in its discretion may assess reasonable costs, including reasonable
attorney's fees and expenses, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 14.8 does not apply to a suit by a Trustee, a suit by a
Holder to enforce its right to payment or a suit by Holders of more than 10% in
principal amount of the then outstanding Securities.
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IN WITNESS WHEREOF, the undersigned have caused these presents to be
executed as of the day and year first above written.
PROVIDENT BANCORP, INC.,
as Sponsor and Company
By:
-----------------------------------
Name:
Title:
THE BANK OF NEW YORK,
as Property Trustee
By:
-----------------------------------
Name:
Title:
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By:
-----------------------------------
Name:
Title:
--------------------------------------
ALLEN L. DAVIS, as Regular Trustee
--------------------------------------
JOHN R. FARRENKOPF, as Regular Trustee
--------------------------------------
MARK E. MAGEE, as Regular Trustee
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EXHIBIT A
This Capital Security is a Global Security within the meaning of the
Declaration hereinafter referred to and is registered in the name of The
Depository Trust Company, a New York corporation (the "Depository"), or a
nominee of the Depository. This Capital Security is exchangeable for Capital
Securities registered in the name of a person other than the Depository or its
nominee only in the limited circumstances described in the Declaration and no
transfer of this Capital Security (other than a transfer of this Capital
Security as a whole by the Depository to a nominee of the Depository or by a
nominee of the Depository to the Depository or another nominee of the
Depository) may be registered except in limited circumstances.
Unless this Capital Security Certificate is presented by an authorized
representative of the Depository to Provident Capital Trust I or its agent for
registration of transfer, exchange or payment, and any Capital Security
Certificate issued is registered in the name of Cede & Co. or such other name as
registered by an authorized representative of the Depository (and any payment
hereon is made to Cede & Co. or to such other entity as is requested by an
authorized representative of the Depository), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the
registered owner hereof, Cede & Co., has an interest herein.
CERTIFICATE NO. NUMBER OF CAPITAL SECURITIES: 100,000
CUSIP NO.
CERTIFICATE EVIDENCING CAPITAL SECURITIES
OF
PROVIDENT CAPITAL TRUST I
8.60% CAPITAL SECURITIES
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
Provident Capital Trust I, a statutory business trust formed under the laws
of the State of Delaware (the "Trust"), hereby certifies that Cede & Co. (the
"Holder") is the registered owner of 100,000 capital securities of the Trust
representing undivided beneficial ownership interests in the assets of the Trust
designated the 8.60% Capital Securities (liquidation amount $1,000 per Capital
Security) (the "Capital Securities"). The Capital Securities are transferable on
the books and records of the Trust, in person or by a duly authorized attorney,
upon surrender of this certificate duly endorsed and in proper form for transfer
as provided in the Declaration (as defined below). The designation, rights,
privileges, restrictions, preferences and other terms and provisions of the
Capital Securities represented hereby are issued and shall in all respects be
subject to the provisions of the Amended and Restated Declaration of Trust of
the Trust, dated as of November 27, 1996 (as the same may be amended from time
to time (the "Declaration"), among Provident Bancorp, Inc., as Sponsor, The Bank
of New York, as Property Trustee, The Bank of New York (Delaware), as Delaware
Trustee and Allen L. Davis, John R. Farrenkopf and Mark E. Magee, as Regular
Trustees. Capitalized terms used herein but not defined shall have the meaning
given them in
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the Declaration. The Holder is entitled to the benefits of the Guarantee to the
extent described therein. The Sponsor will provide a copy of the Declaration,
the Guarantee and the Indenture to a Holder without charge upon written request
to the Sponsor at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the Declaration
and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States federal income
tax purposes, the Debentures as indebtedness and the Capital Securities as
evidence of undivided indirect beneficial ownership interests in the Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate this 27th day
of November, 1996.
Provident Capital Trust I
By:
---------------------------
Name:
Title: Regular Trustee
This is one of the Securities referred to in the within-mentioned
Indenture.
THE BANK OF NEW YORK, as Trustee
By:
---------------------------
Name:
Title: Authorized Signatory
Dated: November 27, 1996
In connection with any transfer of this Security occurring prior to the
date which is the earlier of (i) the date of the declaration by the Commission
of the effectiveness of a registration statement under the Securities Act
covering resales of this Security (which effectiveness shall not have been
suspended or terminated at the date of the transfer) and (ii) three years after
the later of the date of original issue and the last date on which the Company
or any affiliate of the Company was the owner of such Capital Securities (or any
predecessor thereto) (the "Resale Restriction Termination Date"), the
undersigned confirms that it has not utilized any general solicitation or
general advertising in connection with the transfer:
[CHECK ONE]
(1) ___ to the Company or a subsidiary thereof; or
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(2) ___ pursuant to and in compliance with Rule 144A under the Securities Act of
1933, as amended; or
(3) ___ to an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as
amended) that has furnished to the Trustee a signed letter containing
certain representations and agreements (the form of which letter can be
obtained from the Trustee); or
(4) ___ outside the United States to a "foreign person" in compliance with Rule
904 of Regulation S under the Securities Act of 1933, as amended; or
(5) ___ pursuant to the exemption from registration provided by Rule 144 under
the Securities Act of 1933, as amended; or
(6) ___ pursuant to an effective registration statement under the Securities
Act of 1933, as amended; or
(7) ___ pursuant to another available exemption from the registration
requirements of the Securities Act of 1933, as amended.
Unless one of the boxes is checked, the Trustee will refuse to register any of
the Securities evidenced by this certificate in the name of any person other
than the registered Holder thereof; provided, however, that if box (3), (4), (5)
or (7) is checked, the Company or the Trustee may require, prior to registering
any such transfer of the Securities, in its sole discretion, such written legal
opinions, certifications (including an investment letter in the case of box (3)
or (4)) and other information as the Trustee or the Company has reasonably
requested to confirm that such transfer is being made pursuant to an exemption
from, or in a transaction not subject to, the registration requirements of the
Securities Act of 1933, as amended.
If none of the foregoing boxes is checked, the Trustee or Registrar shall not be
obligated to register this Security in the name of any person other than the
Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 315 of the Indenture shall have
been satisfied.
Dated: Signed:
--------------------- -----------------------------------------
(Sign exactly as name appears on the other
side of this Security)
Signature Guarantee:
--------------------------
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this Security
for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of
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Rule 144A under the Securities Act and is aware that the sale to it is being
made in reliance on Rule 144A and acknowledges that it has received such
information regarding the Company as the undersigned has requested pursuant to
Rule 144A or has determined not to request such information and that it is aware
that the transferor is relying upon the undersigned's foregoing representations
in order to claim the exemption from registration provided by Rule 144A.
Dated:
--------------- -----------------------------------------------
NOTICE: To be executed by an executive officer
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EXHIBIT B
THIS CERTIFICATE IS NOT TRANSFERABLE
CERTIFICATE NO. 1 NUMBER OF COMMON SECURITIES: 3,093
CERTIFICATE EVIDENCING COMMON SECURITIES
OF
PROVIDENT CAPITAL TRUST I
COMMON SECURITIES
(LIQUIDATION AMOUNT $1,000 PER COMMON SECURITY)
Provident Capital Trust I, a statutory business trust formed under the laws
of the State of Delaware (the "Trust"), hereby certifies that Provident Bancorp,
Inc. (the "Holder") is the registered owner of common securities of the Trust
representing an undivided beneficial ownership interest in the assets of the
Trust designated the 8.60% Common Securities (liquidation amount $1,000 per
Common Security) (the "Common Securities"). The Common Securities are not
transferable and any attempted transfer thereof shall be void. The designation,
rights, privileges, restrictions, preferences and other terms and provisions of
the Common Securities represented hereby are issued and shall in all respects be
subject to the provisions of the Amended and Restated Declaration of Trust of
the Trust, dated as of November 27, 1996 (as the same may be amended from time
to time, the "Declaration"), among Provident Bancorp, Inc., as Sponsor, The Bank
of New York, as Property Trustee, The Bank of New York (Delaware), as Delaware
Trustee and Allen L. Davis, John R. Farrenkopf and Mark E. Magee, as Regular
Trustees. The Holder is entitled to the benefits of the Guarantee to the extent
described therein. Capitalized terms used herein but not defined shall have the
meaning given them in the Declaration. The Sponsor will provide a copy of the
Declaration, the Guarantee and the Indenture to a Holder without charge upon
written request to the Sponsor at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the Declaration
and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States federal income
tax purposes, the Debentures as indebtedness and the Common Securities as
evidence of an undivided indirect beneficial ownership interest in the
Debentures.
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IN WITNESS WHEREOF, the Trust has executed this certificate this 27th day
of November, 1996.
PROVIDENT CAPITAL TRUST I
By:
-----------------------------------
Name:
Title: Regular Trustee