Exhibit 4.1
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AMENDED AND RESTATED
TRUST AGREEMENT
among
FIRST EMPIRE STATE CORPORATION, as Depositor,
BANKERS TRUST COMPANY,
as Property Trustee,
and
BANKERS TRUST (DELAWARE),
as Delaware Trustee
Dated as of June 6, 1997
FIRST EMPIRE CAPITAL TRUST II
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FIRST EMPIRE CAPITAL TRUST II
Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Trust Agreement
Act Section Section
--------------- ---------------
(ss.) 310(a)(1)................................. 8.7
(a)(2).................................. 8.7
(a)(3).................................. 8.9
(a)(4).................................. 2.7(a)(ii)
(b)..................................... 8.8, 10.10(b)
(ss.) 311(a).................................... 8.13, 10.10(b)
(b)..................................... 8.13, 10.10(b)
(ss.) 312(a).................................... 10.10(b)
(b)..................................... 10.10(b), (f)
(c)..................................... 5.7
(ss.) 313(a).................................... 8.15(a)
(a)(4).................................. 10.10(c)
(b)..................................... 8.15(c), 10.10(c)
(c)..................................... 10.8, 10.10(c)
(d)..................................... 10.10(c)
(ss.) 314(a).................................... 8.16, 10.10(d)
(b)..................................... Not Applicable
(c)(1).................................. 8.17, 10.10(d), (e)
(c)(2).................................. 8.17, 10.10(d), (e)
(c)(3).................................. 8.17, 10.10(d), (e)
(e)..................................... 8.17, 10.10(e)
(ss.) 315(a).................................... 8.1(d)
(b)..................................... 8.2
(c)..................................... 8.1(c)
(d)..................................... 8.1(d)
(e)..................................... Not Applicable
(ss.) 316(a).................................... Not Applicable
(a)(1)(A)............................... Not Applicable
(a)(1)(B)............................... Not Applicable
(a)(2).................................. Not Applicable
(b)..................................... 5.13
(c)..................................... 6.7
(ss.) 317(a)(1)................................. Not Applicable
(a)(2).................................. 8.14
(b)..................................... 5.10
(ss.) 318(a).................................... 10.10(a)
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Trust Agreement.
TABLE OF CONTENTS
Page
----
ARTICLE I. DEFINED TERMS
SECTION 1.1. Definitions......................................... 2
ARTICLE II. CONTINUATION OF THE ISSUER TRUST
SECTION 2.1. Name................................................ 16
SECTION 2.2. Office of the Delaware Trustee; Principal
Place of Business................................... 16
SECTION 2.3. Initial Contribution of Trust Property;
Organizational Expenses............................. 16
SECTION 2.4. Issuance of the Capital Securities.................. 16
SECTION 2.5. Issuance of the Common Securities;
Subscription and Purchase of Junior
Subordinated Debentures............................. 17
SECTION 2.6. Declaration of Trust................................ 17
SECTION 2.7. Authorization to Enter into Certain
Transactions........................................ 18
SECTION 2.8. Assets of Trust..................................... 21
SECTION 2.9. Title to Trust Property............................. 21
ARTICLE III. PAYMENT ACCOUNT
SECTION 3.1. Payment Account..................................... 22
ARTICLE IV. DISTRIBUTIONS; REDEMPTION
SECTION 4.1. Distributions....................................... 22
SECTION 4.2. Redemption.......................................... 24
SECTION 4.3. Subordination of Common Securities.................. 27
SECTION 4.4. Payment Procedures.................................. 27
SECTION 4.5. Tax Returns and Reports............................. 28
SECTION 4.6. Payment of Taxes, Duties, Etc.
of the Issuer Trust................................. 28
SECTION 4.7. Payments under Indenture or Pursuant to
Direct Actions...................................... 29
SECTION 4.8. Liability of the Holder of Common Securities........ 29
ARTICLE V. TRUST SECURITIES CERTIFICATES
SECTION 5.1. Initial Ownership................................... 29
SECTION 5.2. The Trust Securities Certificates................... 29
SECTION 5.3. Execution and Delivery of Trust
Securities Certificates............................. 30
SECTION 5.4. Global Capital Security............................. 30
SECTION 5.5. Registration of Transfer and Exchange
Generally; Certain Transfers and
Exchanges; Capital Securities Certificates.......... 32
SECTION 5.6. Mutilated, Destroyed, Lost or Stolen
Trust Securities Certificates....................... 34
SECTION 5.7. Persons Deemed Holders.............................. 34
SECTION 5.8. Access to List of Holders'
Names and Addresses................................. 34
SECTION 5.9. Maintenance of Office or Agency..................... 35
SECTION 5.10. Appointment of Paying Agent......................... 35
SECTION 5.11. Ownership of Common Securities
by Depositor........................................ 36
SECTION 5.12. Notices to Clearing Agency.......................... 36
SECTION 5.13. Rights of Holders................................... 36
ARTICLE VI. ACTS OF HOLDERS; MEETINGS;
VOTING
SECTION 6.1. Limitations on Holder's Voting Rights............... 39
SECTION 6.2. Notice of Meetings.................................. 40
SECTION 6.3. Meetings of Holders................................. 40
SECTION 6.4. Voting Rights....................................... 41
SECTION 6.5. Proxies, etc........................................ 41
SECTION 6.6. Holder Action by Written
Consent............................................. 42
SECTION 6.7. Record Date for Voting and Other
Purposes............................................ 42
SECTION 6.8. Acts of Holders..................................... 42
SECTION 6.9. Inspection of Records............................... 43
ARTICLE VII. REPRESENTATIONS AND WARRANTIES
SECTION 7.1. Representations and Warranties
of the Property Trustee and
the Delaware Trustee................................ 44
SECTION 7.2. Representations and Warranties of
Depositor........................................... 45
ARTICLE VIII. THE ISSUER TRUSTEES; THE ADMINISTRATORS
SECTION 8.1. Certain Duties and Responsibilities................. 46
SECTION 8.2. Certain Notices..................................... 49
SECTION 8.3. Certain Rights of Property Trustee.................. 49
SECTION 8.4. Not Responsible for Recitals
or Issuance of Securities........................... 51
SECTION 8.5. May Hold Securities................................. 51
SECTION 8.6. Compensation; Indemnity; Fees....................... 51
SECTION 8.7. Corporate Property Trustee Required;
Eligibility of Trustees and Administrators.......... 53
SECTION 8.8. Conflicting Interests............................... 53
SECTION 8.9. Co-Trustees and Separate Trustee.................... 54
SECTION 8.10. Resignation and Removal; Appointment of
Successor........................................... 55
SECTION 8.11. Acceptance of Appointment by
Successor........................................... 57
SECTION 8.12. Merger, Conversion, Consolidation or
Succession to Business.............................. 58
SECTION 8.13. Preferential Collection of Claims
Against Depositor or Issuer Trust................... 58
SECTION 8.14. Trustee May File Proofs of Claim.................... 58
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SECTION 8.15. Reports by Property Trustee......................... 59
SECTION 8.16. Reports to the Property Trustee..................... 60
SECTION 8.17. Evidence of Compliance with Conditions
Precedent........................................... 60
SECTION 8.18. Number of Issuer Trustees........................... 60
SECTION 8.19. Delegation of Power................................. 60
SECTION 8.20. Appointment of Administrators....................... 61
ARTICLE IX. DISSOLUTION, LIQUIDATION AND MERGER
SECTION 9.1. Dissolution Upon Expiration Date.................... 62
SECTION 9.2. Early Termination................................... 62
SECTION 9.3. Termination......................................... 62
SECTION 9.4. Liquidation......................................... 63
SECTION 9.5. Mergers, Consolidations, Amalgamations
or Replacements of the Issuer Trust................. 64
ARTICLE X. MISCELLANEOUS PROVISIONS
SECTION 10.1. Limitation of Rights of Holders..................... 66
SECTION 10.2. Amendment........................................... 66
SECTION 10.3. Separability........................................ 67
SECTION 10.4. Governing Law....................................... 68
SECTION 10.5. Payments Due on Non-Business Day.................... 68
SECTION 10.6. Successors.......................................... 69
SECTION 10.7. Headings............................................ 69
SECTION 10.8. Reports, Notices and Demands........................ 69
SECTION 10.9. Agreement Not to Petition........................... 70
SECTION 10.10. Trust Indenture Act; Conflict with
Trust Indenture Act................................. 70
SECTION 10.11. Acceptance of Terms of Trust Agreement,
Guarantee and Indenture............................. 72
Exhibit A Certificate of Trust
Exhibit B Form of Certificate Depositary Agreement
Exhibit C Form of Common Securities Certificate
Exhibit D Form of Capital Securities Certificate
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AGREEMENT
Amended and Restated Trust Agreement, dated as of June 6, 1997,
among (i) First Empire State Corporation, a New York corporation
(including any successors or assigns, the "Depositor"), (ii) Bankers
Trust Company, a New York banking corporation, as property trustee,
(in such capacity, the "Property Trustee" and, in its separate
corporate capacity and not in its capacity as Property Trustee, the
"Bank"), and (iii) Bankers Trust (Delaware), a Delaware banking
corporation, as Delaware trustee (the "Delaware Trustee") (the
Property Trustee and the Delaware Trustee are referred to
collectively herein as the "Issuer Trustees") and (iv) the several
Holders, as hereinafter defined.
WITNESSETH
WHEREAS, the Issuer Trust has been established under the
Delaware Business Trust Act pursuant to a certain Trust Agreement,
dated as of May 30, 1997 (the "Original Trust Agreement"), and by the
filing of the Certificate of Trust of the Issuer Trust with the
Secretary of State of the State of Delaware on May 30, 1997 (the
"Certificate of Trust"), which Certificate of Trust is attached as
Exhibit A; and
WHEREAS, the Depositor, the Property Trustee and the Delaware
Trustee desire to amend and restate the Original Trust Agreement in
its entirety as set forth herein to provide for, among other things,
(i) the issuance of the Common Securities by the Issuer Trust to the
Depositor, (ii) the issuance and sale of the Capital Securities by
the Issuer Trust pursuant to the Underwriting Agreement, (iii) the
acquisition by the Issuer Trust from the Depositor of all of the
right, title and interest in the Junior Subordinated Debentures, and
(iv) the appointment of the Administrators.
NOW THEREFORE, in consideration of the agreements and
obligations set forth herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, each party, for the benefit of the other parties and
for the benefit of the Holders, hereby amends and restates the
Original Trust Agreement in its entirety and agrees, intending to be
legally bound, as follows:
ARTICLE I
DEFINED TERMS
SECTION 1.1. Definitions.
For all purposes of this Trust Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
(a) The terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as
the singular;
(b) All other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(c) The words "include," "includes" and "including" shall
be deemed to be followed by the phrase "without limitation";
(d) All accounting terms used but not defined herein have the
meanings assigned to them in accordance with United States generally
accepted accounting principles as in effect at the time of
computation;
(e) Unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the
case may be, of this Trust Agreement; and
(f) The words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Trust Agreement as a whole and
not to any particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.8.
"Additional Amount" means, with respect to Trust Securities of
a given Liquidation Amount and/or a given period, the amount of
Additional Interest (as defined in the Indenture) paid by the
Depositor on a Like Amount of Debentures for such period.
"Additional Sums" has the meaning specified in
Section 10.6 of the Indenture.
"Adjusted Treasury Rate" means, with respect to any Redemption
Date, the Treasury Rate plus (i) 110 basis points if such Redemption
Date occurs on or before June 1, 1998 or (ii) 50 basis points if such
Redemption Date occurs after June 1, 1998.
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"Administrators" means each Person appointed in accordance with
Section 8.20 solely in such Person's capacity as Administrator of the
Issuer Trust heretofore formed and continued hereunder and not in
such Person's individual capacity, or any successor Administrator
appointed as herein provided; with the initial Administrators being
Darlene A. Spychala and Timothy C. McEvoy.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct
or indirect common control with such specified Person. For the
purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the
terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Capital Security or beneficial
interest therein, the rules and procedures of the Depositary for such
Capital Security, in each case to the extent applicable to such
transaction and as in effect from time to time.
"Bank" has the meaning specified in the preamble to this
Trust Agreement.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having
jurisdiction in the premises judging such Person a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjudication or composition of or in
respect of such Person under any applicable federal or State
bankruptcy, insolvency, reorganization or other similar law, or
appointing a receiver, liquidator, assignee, trustee, sequestrator
(or other similar official) of such Person or of any substantial part
of its property or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order unstayed and
in effect for a period of 60 consecutive days; or
(b) the institution by such Person of proceedings to be
adjudicated a bankrupt or insolvent, or the consent by it to the
institution of bankruptcy or insolvency proceedings against it, or
the filing by it of a petition or answer or consent seeking
reorganization or relief under any applicable federal or State
bankruptcy, insolvency, reorganization or other similar law, or the
consent by it to the filing of any such petition or to the
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appointment of a receiver, liquidator, assignee, trustee,
sequestrator (or similar official) of such Person or of any
substantial part of its property or the making by it of an assignment
for the benefit of creditors, or the admission by it in writing of
its inability to pay its debts generally as they become due and its
willingness to be adjudicated a bankrupt, or the taking of corporate
action by such Person in furtherance of any such action.
"Bankruptcy Laws" has the meaning specified in
Section 10.9.
"Board of Directors" means the board of directors of the
Depositor or the Executive Committee of the board of directors of the
Depositor (or any other committee of the board of directors of the
Depositor performing similar functions) or a committee designated by
the board of directors of the Depositor (or any such committee),
comprised of two or more members of the board of directors of the
Depositor or officers of the Depositor, or both.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Depositor to have been
duly adopted by the Depositor's Board of Directors, or such committee
of the Board of Directors or officers of the Depositor to which
authority to act on behalf of the Board of Directors has been
delegated, and to be in full force and effect on the date of such
certification, and delivered to the Issuer Trustees.
"Business Day" means a day other than (a) a Saturday or Sunday,
(b) a day on which banking institutions in the City of New York or in
the City of Buffalo, New York are authorized or required by law or
executive order to remain closed or (c) a day on which the Property
Trustee's Corporate Trust Office or the Delaware Trustee's Corporate
Trust Office or the Corporate Trust Office of the Debenture Trustee
is closed for business.
"Capital Securities Certificate" means a certificate evidencing
ownership of Capital Securities, substantially in the form attached
as Exhibit D.
"Capital Security" means a preferred undivided beneficial
interest in the assets of the Issuer Trust, having a Liquidation
Amount of $1,000 and having the rights provided therefor in this
Trust Agreement, including the right to receive Distributions and a
Liquidation Distribution as provided herein.
"Capital Treatment Event" means, in respect of any Issuer
Trust, the reasonable determination by the Depositor that, as a
result of the occurrence of any amendment to, or change
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(including any announced prospective change) in, the laws (or any
rules or regulations thereunder) of the United States or any
political subdivision thereof or therein, or as a result of any
official or administrative pronouncement or action or judicial
decision interpreting or applying such laws or regulations, which
amendment or change is effective or such pronouncement, action or
decision is announced on or after the date of the issuance of the
Capital Securities of such Issuer Trust, there is more than an
insubstantial risk that the Depositor will not be entitled to treat
an amount equal to the Liquidation Amount of such Capital Securities
as "Tier 1 Capital" (or the then equivalent thereof) for purposes of
the risk-based capital adequacy guidelines of the Board of Governors
of the Federal Reserve System or the New York State Banking
Department, as then in effect and applicable to the Depositor.
"Certificate Depositary Agreement" means the agreement among
the Issuer Trust, the Depositor and the Depositary, as the initial
Clearing Agency, dated as of the Closing Date, substantially in the
form attached as Exhibit B, as the same may be amended and
supplemented from time to time.
"Certificate of Trust" has the meaning specified in the
preamble to this Trust Agreement.
"Clearing Agency" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Securities Exchange
Act of 1934, as amended. The Depositary shall be the initial Clearing
Agency.
"Clearing Agency Participant" means a broker, dealer, bank,
other financial institution or other Person for whom from time to
time a Clearing Agency effects book-entry transfers and pledges of
securities deposited with the Clearing Agency.
"Closing Date" has the meaning specified in the Underwriting
Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or, if
at any time after the execution of this instrument such Commission is
not existing and performing the duties now assigned to it under the
Trust Indenture Act, then the body performing such duties at such
time.
"Common Securities Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached as
Exhibit C.
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"Common Security" means an undivided beneficial interest in the
assets of the Issuer Trust, having a Liquidation Amount of $1,000 and
having the rights provided therefor in this Trust Agreement,
including the right to receive Distributions and a Liquidation
Distribution as provided herein.
"Comparable Treasury Issue" means with respect to any
Redemption Date the United States Treasury security selected by the
Quotation Agent as having a maturity comparable to the Remaining Life
that would be utilized, at the time of selection and in accordance
with customary financial practice, in pricing new issues of corporate
debt securities of comparable maturity to the Remaining Life. If no
United States Treasury security has a maturity which is within a
period from three months before to three months after June 1, 2027,
the two most closely corresponding United States Treasury securities
shall be used as the Comparable Treasury Issue, and the Treasury Rate
shall be interpolated or extrapolated on a straight-line basis,
rounding to the nearest month using such securities.
"Comparable Treasury Price" means (A) the average of five
Reference Treasury Dealer Quotations for such Redemption Date, after
excluding the highest and lowest of such Reference Treasury Dealer
Quotations, or (B) if the Debenture Trustee obtains fewer than five
such Reference Treasury Dealer Quotations, the average of all such
Quotations.
"Corporate Trust Office" means the principal office of the
Property Trustee located in the City of New York which at the time of
the execution of this Trust Agreement is located at Four Albany
Street, New York, New York 10006; Attention: Corporate Trust and
Agency Group - Corporate Market Services.
"Debenture Event of Default" means an "Event of Default" as
defined in the Indenture.
"Debenture Redemption Date" means, with respect to any
Debentures to be redeemed under the Indenture, the date fixed for
redemption of such Debentures under the Indenture.
"Debenture Trustee" means Bankers Trust Company, a New York
banking corporation and any successor.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of
the Delaware Code, 12 Del. C. ss. 3801, et seq., as it may be amended
from time to time.
"Delaware Trustee" means the corporation identified as the
"Delaware Trustee" in the preamble to this Trust Agreement solely in
its capacity as Delaware Trustee of the Issuer Trust
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continued hereunder and not in its individual capacity, or its
successor in interest in such capacity, or any successor trustee
appointed as herein provided.
"Depositor" has the meaning specified in the preamble to
this Trust Agreement.
"Depositary" means the Depository Trust Company or any
successor thereto.
"Distribution Date" has the meaning specified in Section
4.1(a).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.1.
"Early Termination Event" has the meaning specified in Section
9.2.
"Event of Default" means any one of the following events
(whatever the reason for such Event of Default and whether it shall
be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order,
rule or regulation of any administrative or governmental body):
(a) the occurrence of a Debenture Event of Default; or
(b) default by the Issuer Trust in the payment of any
Distribution when it becomes due and payable, and continuation of
such default for a period of 30 days; or
(c) default by the Issuer Trust in the payment of any
Redemption Price of any Trust Security when it becomes due and
payable; or
(d) default in the performance, or breach, in any material
respect, of any covenant or warranty of the Issuer Trustees in this
Trust Agreement (other than a covenant or warranty a default in the
performance of which or the breach of which is dealt with in clause
(b) or (c) above) and continuation of such default or breach for a
period of 60 days after there has been given, by registered or
certified mail, to the Issuer Trustees and the Depositor by the
Holders of at least 25% in aggregate Liquidation Amount of the
Outstanding Capital Securities, a written notice specifying such
default or breach and requiring it to be remedied and stating that
such notice is a "Notice of Default" hereunder; or
(e) the occurrence of any Bankruptcy Event with respect to the
Property Trustee or all or substantially all of its
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property if a successor Property Trustee has not been appointed
within a period of 90 days thereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and any successor statute thereto, in each case as
amended from time to time.
"Expiration Date" has the meaning specified in Section 9.1.
"Global Capital Securities Certificate" means a Capital
Securities Certificate evidencing ownership of Global Capital
Securities.
"Global Capital Security" means a Capital Security, the
ownership and transfers of which shall be made through book entries
by a Clearing Agency as described in Section 5.4.
"Guarantee Agreement" means the Guarantee Agreement executed
and delivered by the Depositor and Bankers Trust Company, as trustee,
contemporaneously with the execution and delivery of this Trust
Agreement, for the benefit of the holders of the Capital Securities,
as amended from time to time.
"Holder" means a Person in whose name a Trust Security or Trust
Securities is registered in the Securities Register; any such Person
shall be deemed to be a beneficial owner within the meaning of the
Delaware Business Trust Act.
"Indenture" means the Junior Subordinated Indenture, dated as
of June 6, 1997, between the Depositor and the Debenture Trustee (as
amended or supplemented from time to time) relating to the issuance
of the Junior Subordinated Debentures.
"Investment Company Act" means the Investment Company Act of
1940, as amended.
"Investment Company Event" means the receipt by the Issuer
Trust of an Opinion of Counsel experienced in such matters to the
effect that, as a result of the occurrence of a change in law or
regulation or a written change (including any announced prospective
change) in interpretation or application of law or regulation by any
legislative body, court, governmental agency or regulatory authority,
there is more than an insubstantial risk that the Issuer Trust is or
will be considered an "investment company" that is required to be
registered under the Investment Company Act, which change or
prospective change becomes effective or would become effective, as
the case may be, on or after the date of the issuance of the Capital
Securities.
"Issuer Trust" means First Empire Capital Trust II.
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"Issuer Trustees" means, collectively, the Property Trustee and
the Delaware Trustee.
"Junior Subordinated Debentures" means the aggregate principal
amount of the Depositor's 8.277% Junior Subordinated Deferrable
Interest Debentures, due June 1, 2027, issued pursuant to the
Indenture.
"Lien" means any lien, pledge, charge, encumbrance, mortgage,
deed of trust, adverse ownership interest, hypothecation, assignment,
security interest or preference, priority or other security agreement
or preferential arrangement of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of Trust
Securities, Trust Securities having a Liquidation Amount equal to
that portion of the principal amount of Junior Subordinated
Debentures to be contemporaneously redeemed in accordance with the
Indenture, allocated to the Common Securities and to the Capital
Securities based upon the relative Liquidation Amounts of such
classes and (b) with respect to a distribution of Junior Subordinated
Debentures to Holders of Trust Securities in connection with a
dissolution or liquidation of the Issuer Trust, Junior Subordinated
Debentures having a principal amount equal to the Liquidation Amount
of the Trust Securities of the Holder to whom such Junior
Subordinated Debentures are distributed.
"Liquidation Amount" means the stated amount of $1,000 per
Trust Security.
"Liquidation Date" means the date on which Junior Subordinated
Debentures are to be distributed to Holders of Trust Securities in
connection with a dissolution and liquidation of the Issuer Trust
pursuant to Section 9.4.
"Liquidation Distribution" has the meaning specified in
Section 9.4(d).
"Majority in Liquidation Amount of the Capital Securities" or
"Majority in Liquidation Amount of the Common Securities" means,
except as provided by the Trust Indenture Act, Capital Securities or
Common Securities, as the case may be, representing more than 50% of
the aggregate Liquidation Amount of all then Outstanding Capital
Securities or Common Securities, as the case may be.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board and Chief Executive Officer, President or a
Senior Vice President or Vice President, and by the Treasurer,
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an Assistant Treasurer, the Secretary or an Assistant Secretary, of
the Depositor, and delivered to the party provided herein. Any
Officers' Certificate delivered with respect to compliance with a
condition or covenant provided for in this Trust Agreement shall
include:
(a) a statement by each officer signing the Officers'
Certificate that such officer 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 such officer in
rendering the Officers' Certificate;
(c) a statement that such officer has made such
examination or investigation as, in such officer's opinion, is
necessary to enable such officer to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for or an employee of the Depositor or any Affiliate
of the Depositor.
"Original Trust Agreement" has the meaning specified in the
preamble to this Trust Agreement.
"Outstanding," with respect to Trust Securities, means, as of
the date of determination, all Trust Securities theretofore executed
and delivered under this Trust Agreement, except:
(a) Trust Securities theretofore canceled by the Property
Trustee or delivered to the Property Trustee for cancellation;
(b) Trust Securities for whose payment or redemption money
in the necessary amount has been theretofore deposited with the
Property Trustee or any Paying Agent for the Holders of such Capital
Securities, provided that if such Trust Securities are to be
redeemed, notice of such redemption has been duly given pursuant to
this Trust Agreement; and
(c) Trust Securities which have been paid or in exchange
for or in lieu of which other Trust Securities have been executed and
delivered pursuant to Sections 5.4, 5.5, 5.6 and 5.13;
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provided, however, that in determining whether the Holders of the
requisite Liquidation Amount of the Outstanding Capital Securities
have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, Capital Securities owned by the
Depositor, or any Issuer Trustee, any Administrator or any Affiliate
of the Depositor or any Issuer Trustee shall be disregarded and
deemed not to be Outstanding, except that (a) in determining whether
any Issuer Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver,
only Capital Securities that such Issuer Trustee or such
Administrator, as the case may be, knows to be so owned shall be so
disregarded and (b) the foregoing shall not apply at any time when
all of the outstanding Capital Securities are owned by the Depositor,
one or more of the Issuer Trustees, one or more of the Administrators
and/or any such Affiliate. Capital Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Administrators the
pledgee's right so to act with respect to such Capital Securities and
that the pledgee is not the Depositor or any Affiliate of the
Depositor.
"Owner" means each Person who is the beneficial owner of Global
Capital Securities as reflected in the records of the Clearing Agency
or, if a Clearing Agency Participant is not the Owner, then as
reflected in the records of a Person maintaining an account with such
Clearing Agency (directly or indirectly), in accordance with the
rules of such Clearing Agency.
"Paying Agent" means any paying agent or co-paying agent
appointed pursuant to Section 5.10 and shall initially be the
Property Trustee.
"Payment Account" means a segregated non-interest-bearing
corporate trust account maintained with the Property Trustee in its
trust department for the benefit of the Holders in which all amounts
paid in respect of the Junior Subordinated Debentures will be held
and from which the Property Trustee, through the Paying Agent, shall
make payments to the Holders in accordance with Sections 4.1 and 4.2.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint
stock company, company, limited liability company, trust,
unincorporated organization or government or any agency or political
subdivision thereof, or any other entity of whatever nature.
"Property Trustee" means the Person identified as the "Property
Trustee" in the preamble to this Trust Agreement solely in its
capacity as Property Trustee of the Issuer Trust
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formed and continued hereunder and not in its individual capacity, or
its successor in interest in such capacity, or any successor property
trustee appointed as herein provided.
"Quotation Agent" means Morgan Stanley & Co. Incorporated and
its successors; provided, however, that if the foregoing shall cease
to be a primary U.S. Government securities dealer in New York City (a
"Primary Treasury Dealer"), the Depositor shall substitute therefor
another Primary Treasury Dealer.
"Redemption Date" means, with respect to any Trust Security to
be redeemed, the date fixed for such redemption by or pursuant to
this Trust Agreement; provided that each Junior Subordinated
Debenture Redemption Date and the stated maturity of the Junior
Subordinated Debentures shall be a Redemption Date for a Like Amount
of Trust Securities, including but not limited to any date of
redemption pursuant to the occurrence of any Special Event.
"Redemption Price" means:
(a) in the case of a redemption, other than as provided in
paragraph (b) below, the following prices expressed in percentages of
the Liquidation Amount, together with accumulated Distributions to
but excluding the date fixed for redemption, if redeemed during the
12-month period beginning June 1:
Year Redemption Price
---- ----------------
2007.............................. 104.139%
2008.............................. 103.725
2009.............................. 103.311
2010.............................. 102.897
2011.............................. 102.483
2012.............................. 102.069
2013.............................. 101.655
2014.............................. 101.242
2015.............................. 100.828
2016.............................. 100.414
and 100% on or after June 1, 2017.
(b) in the case of a redemption prior to June 1, 2007 following
a Tax Event, Investment Company Event or Capital Treatment Event, an
amount equal to for each Capital Security the Make-Whole Amount for a
corresponding $1,000 principal amount of Junior Subordinated
Debentures together with accumulated Distributions to but excluding
the date fixed for redemption. The "Make-Whole Amount" will be equal
to the greater of (i) 100% of the principal amount of such Junior
Subordinated Debentures, and (ii) as determined by a Quotation
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Agent, the sum of the present value of 100% of the principal amount
that would be payable with respect to such Junior Subordinated
Debentures on June 1, 2027, together with the present values of
scheduled payments of interest from the Redemption Date to June 1,
2027 (the "Remaining Life"), in each case discounted to the
Redemption Date on a semiannual basis (assuming a 360-day year
consisting of 30-day months) at the Adjusted Treasury Rate. The
Redemption Price in the case of a redemption on or after June 1, 2007
following a Tax Event, Investment Company Event or Capital Treatment
Event shall mean an amount equal to the Redemption Price then
applicable to a redemption under paragraph (a) above.
"Reference Treasury Dealer" means (i) the Quotation Agent and
(ii) any other Primary Treasury Dealer selected by the Debenture
Trustee after consultation with the Depositor.
"Reference Treasury Dealer Quotations" means, with respect to
each Reference Treasury Dealer and any Redemption Date, the average,
as determined by the Debenture Trustee, of the bid and asked prices
for the Comparable Treasury Issue (expressed in each case as a
percentage of its principal amount) quoted in writing to the
Debenture Trustee by such Reference Treasury Dealer at 5:00 p.m., New
York City time, on the third Business Day preceding such Redemption
Date.
"Relevant Trustee" has the meaning specified in Section 8.10.
"Responsible Officer" when used with respect to the Property
Trustee means any officer assigned to the Corporate Trust Office,
including any managing director, vice president, assistant vice
president, assistant treasurer, assistant secretary or any other
officer of the Property Trustee customarily performing functions
similar to those performed by any of the above designated officers
and having direct responsibility for the administration of the
Indenture, and also, with respect to a particular matter, any other
officer to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject.
"Securities Act" means the Securities Act of 1933, as amended,
and any successor statute thereto, in each case as amended from time
to time.
"Securities Register" and "Securities Registrar" have the
respective meanings specified in Section 5.5.
"Senior Indebtedness" has the meaning specified in the
Indenture.
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"Special Event" means any Tax Event, Capital Treatment Event or
Investment Company Event.
"Successor Capital Securities" of any particular Capital
Securities Certificate means every Capital Securities Certificate
issued after, and evidencing all or a portion of the same beneficial
interest in the Issuer Trust as that evidenced by, such particular
Capital Securities Certificate; and, for the purposes of this
definition, any Capital Securities Certificate executed and delivered
under Section 5.6 in exchange for or in lieu of a mutilated,
destroyed, lost or stolen Capital Securities Certificate shall be
deemed to evidence the same beneficial interest in the Issuer Trust
as the mutilated, destroyed, lost or stolen Capital Securities
Certificate.
"Tax Event" means the receipt by the Issuer Trust of an Opinion
of Counsel experienced in such matters to the effect that, as a
result of any amendment to, or change (including any announced
prospective 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 or administrative
pronouncement or action or judicial decision interpreting or applying
such laws or regulations, which amendment or change is effective or
which pronouncement, action or decision is announced on or after the
date of issuance of the Capital Securities, there is more than an
insubstantial risk that (i) the Issuer Trust is, or will be within 90
days of the delivery of such Opinion of Counsel, subject to United
States Federal income tax with respect to income received or accrued
on the Junior Subordinated Debentures, (ii) interest payable by the
Depositor on the Junior Subordinated Debentures is not, or within 90
days of the delivery of such Opinion of Counsel will not be,
deductible by the Depositor, in whole or in part, for United States
federal income tax purposes, or (iii) the Issuer Trust is, or will be
within 90 days of the delivery of such Opinion of Counsel, subject to
more than a de minimis amount of other taxes, duties or other
governmental charges.
"Treasury Rate" means (i) the yield, under the heading which
represents the average for the week immediately prior to the
calculation date, appearing in the most recently published
statistical release designated "H.15(519)" or any successor
publication which is published weekly by the Federal Reserve and
which establishes yields on actively traded United States Treasury
securities adjusted to constant maturity under the caption "Treasury
Constant Maturities," for the maturity corresponding to the Remaining
Life (if no maturity is within three months before or after the
Remaining Life, yields for the two published maturities most closely
corresponding to the Remaining Life shall be determined and the
Treasury Rate shall
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be interpolated or extrapolated from such yields on a straight-line
basis, rounding to the nearest month) or (ii) if such release (or any
successor release) is not published during the week preceding the
calculation date or does not contain such yields, the rate per annum
equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, calculated using a price for the
Comparable Treasury Issue (expressed as a percentage of its principal
amount) equal to the Comparable Treasury Price for such Redemption
Date. The Treasury Rate shall be calculated on the third Business Day
preceding the Redemption Date.
"Trust Agreement" means this Amended and Restated Trust
Agreement, as the same may be modified, amended or supplemented in
accordance with the applicable provisions hereof, including (i) all
Exhibits hereto, and (ii) for all purposes of this Amended and
Restated Trust Agreement any such modification, amendment or
supplement, the provisions of the Trust Indenture Act that are deemed
to be a part of and govern this Amended and Restated Trust Agreement
and any modification, amendment or supplement, respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939 or
any successor statute, in each case as amended from time to time.
"Trust Property" means (a) the Junior Subordinated Debentures,
(b) any cash on deposit in, or owing to, the Payment Account, and (c)
all proceeds and rights in respect of the foregoing or any other
property and assets for the time being held or deemed to be held by
the Property Trustee pursuant to the trusts of this Trust Agreement.
"Trust Securities Certificate" means any one of the Common
Securities Certificates or the Capital Securities Certificates.
"Trust Security" means any one of the Common Securities or
the Capital Securities.
"Underwriters" has the meaning specified in the Underwriting
Agreement.
"Underwriting Agreement" means the Underwriting Agreement,
dated as of June 5, 1997, among the Issuer Trust, the Depositor and
the Underwriters, as the same may be amended from time to time.
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ARTICLE II
CONTINUATION OF THE ISSUER TRUST
SECTION 2.1. Name.
The Issuer Trust continued hereby shall be known as "First
Empire Capital Trust II", as such name may be modified from time to
time by the Administrators following written notice to the Holders of
Trust Securities and the Issuer Trustees, in which name the
Administrators and the Issuer Trustees may engage in the transactions
contemplated hereby, make and execute contracts and other instruments
on behalf of the Issuer Trust and sue and be sued.
SECTION 2.2. Office of the Delaware Trustee; Principal Place of
Business.
The address of the Delaware Trustee in the State of Delaware is
Bankers Trust (Delaware), 1001 Jefferson Street, Suite 550,
Wilmington, DE 19801, Attention: Lisa Wilkins, or such other address
in the State of Delaware as the Delaware Trustee may designate by
written notice to the Holders and the Depositor. The principal
executive office of the Issuer Trust is in care of First Empire State
Corporation, One M&T Plaza, Buffalo, New York 14240, Attention:
Office of the Secretary.
SECTION 2.3. Initial Contribution of Trust Property;
Organizational Expenses.
The Property Trustee acknowledges receipt in trust from the
Depositor in connection with this Trust Agreement of the sum of $10,
which constitutes the initial Trust Property. The Depositor shall pay
all organizational expenses of the Issuer Trust as they arise or
shall, upon request of any Issuer Trustee, promptly reimburse such
Issuer Trustee for any such expenses paid by such Issuer Trustee. The
Depositor shall make no claim upon the Trust Property for the payment
of such expenses.
SECTION 2.4. Issuance of the Capital Securities.
On June 5, 1997, the Depositor, both on its own behalf and on
behalf of the Issuer Trust pursuant to the Original Trust Agreement,
executed and delivered the Underwriting Agreement. Contemporaneously
with the execution and delivery of this Trust Agreement, an
Administrator, on behalf of the Issuer Trust, shall manually execute
in accordance with Section 5.3 and the Property Trustee shall
authenticate in accordance with Section 5.3 and deliver to the
Underwriters, Capital Securities Certificates, registered in the
names requested by the
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Underwriters, in an aggregate amount of 100,000 Capital Securities
having an aggregate Liquidation Amount of $100,000,000, against
receipt of the aggregate purchase price of such Capital Securities of
$100,000,000, by the Property Trustee.
SECTION 2.5. Issuance of the Common Securities; Subscription
and Purchase of Junior Subordinated Debentures.
Contemporaneously with the execution and delivery of this Trust
Agreement, an Administrator, on behalf of the Issuer Trust, shall
execute or cause to be executed in accordance with Section 5.2 and
the Property Trustee shall deliver to the Depositor Common Securities
Certificates, registered in the name of the Depositor, in an
aggregate amount of 3,093 Common Securities having an aggregate
Liquidation Amount of $3,093,000 against receipt of the aggregate
purchase price of such Common Securities of $3,093,000 by the
Property Trustee. Contemporaneously therewith, an Administrator, on
behalf of the Issuer Trust, shall subscribe for and purchase from the
Depositor the Junior Subordinated Debentures, registered in the name
of the Issuer Trust and having an aggregate principal amount equal to
$103,093,000 and, in satisfaction of the purchase price for such
Junior Subordinated Debentures, the Property Trustee, on behalf of
the Issuer Trust, shall deliver to the Depositor the sum of
$103,093,000 (being the sum of the amounts delivered to the Property
Trustee pursuant to (i) the second sentence of Section 2.4, and (ii)
the first sentence of this Section 2.5) and receive on behalf of the
Issuer Trust the Junior Subordinated Debentures.
SECTION 2.6. Declaration of Trust.
The exclusive purposes and functions of the Issuer Trust are to
(a) issue and sell Trust Securities and use the proceeds from such
sale to acquire the Junior Subordinated Debentures, and (b) engage in
only those other activities necessary or incidental thereto. The
Depositor hereby appoints the Issuer Trustees as trustees of the
Issuer Trust, to have all the rights, powers and duties to the extent
set forth herein, and the Issuer Trustees hereby accept such
appointment. The Property Trustee hereby declares that it will hold
the Trust Property in trust upon and subject to the conditions set
forth herein for the benefit of the Issuer Trust and the Holders. The
Depositor hereby appoints the Administrators, with such
Administrators having all rights, powers and duties set forth herein
with respect to accomplishing the purposes of the Issuer Trust, and
the Administrators hereby accept such appointment, provided, however,
that it is the intent of the parties hereto that such Administrators
shall not be trustees or, to the fullest extent permitted by law,
fiduciaries with respect to the
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Issuer Trust and this Agreement shall be construed in a manner
consistent with such intent. The Property Trustee shall have the
right and power to perform those duties assigned to the
Administrators. The Delaware Trustee shall not be entitled to
exercise any powers, nor shall the Delaware Trustee have any of the
duties and responsibilities, of the Property Trustee or the
Administrators set forth herein. The Delaware Trustee shall be one of
the trustees of the Issuer Trust for the sole and limited purpose of
fulfilling the requirements of Section 3807 of the Delaware Business
Trust Act and for taking such actions as are required to be taken by
a Delaware trustee under the Delaware Business Trust Act.
SECTION 2.7. Authorization to Enter into Certain Transactions.
(a) The Issuer Trustees and the Administrators shall conduct
the affairs of the Issuer Trust in accordance with the terms of this
Trust Agreement. Subject to the limitations set forth in paragraph
(b) of this Section and in accordance with the following provisions
(i), (ii) and (iii), the Issuer Trustees and the Administrators shall
act as follows:
(i) Each Administrator is authorized, on behalf of the Trust,
to:
(A) comply with the Underwriting Agreement regarding the
issuance and sale of the Trust Securities;
(B) assist in compliance with the Securities Act,
applicable state securities or blue sky laws, and the Trust Indenture
Act;
(C) assist in the listing of the Capital Securities upon
such securities exchange or exchanges as shall be determined by the
Depositor, with the registration of the Capital Securities under the
Exchange Act, if required, and the preparation and filing of all
periodic and other reports and other documents pursuant to the
foregoing;
(D) execute the Trust Securities on behalf of the Issuer
Trust in accordance with this Trust Agreement;
(E) execute and deliver an application for a taxpayer
identification number for the Issuer Trust;
(F) unless otherwise determined by the Property Trustee or
Holders of at least a Majority in Liquidation Amount of the Capital
Securities or as otherwise required by the Delaware Business Trust
Act or the Trust Indenture Act, execute on behalf of the Issuer Trust
any documents that the
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Administrators have the power to execute pursuant to this Trust
Agreement, including without limitation a Junior Subordinated
Debenture Purchase Agreement and a Common Securities Purchase
Agreement, both by and between the Issuer Trust and the Depositor;
and
(G) take any action incidental to the foregoing as
necessary or advisable to give effect to the terms of this Trust
Agreement.
(ii) The Property Trustee shall have the power and authority to
act on behalf of the Issuer Trust with respect to the following
matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and
any other payments made in respect of the Junior Subordinated
Debentures in the Payment Account;
(D) the distribution of amounts owed to the Holders in
respect of the Trust Securities;
(E) the exercise of all of the rights, powers and
privileges of a holder of the Junior Subordinated Debentures;
(F) the sending of notices of default and other
information regarding the Trust Securities and the Junior
Subordinated Debentures to the Holders in accordance with this Trust
Agreement;
(G) the distribution of the Trust Property in accordance
with the terms of this Trust Agreement;
(H) to the extent provided in this Trust Agreement, the
winding up of the affairs of and liquidation of the Issuer Trust and
the preparation, execution and filing of the certificate of
cancellation with the Secretary of State of the State of Delaware;
and
(I) after an Event of Default (other than under paragraph
(b), (c), (d), or (f) of the definition of such term if such Event of
Default is by or with respect to the Property Trustee), comply with
the provisions of this Trust Agreement and take any action to give
effect to the terms of this Trust Agreement and protect and conserve
the Trust Property for the benefit of the Holders (without
consideration of the effect of any such action on any particular
Holder); and
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provided, however, that nothing in this Section 2.7(a)(ii) shall
require the Property Trustee to take any action that is not otherwise
required in this Trust Agreement.
(b) So long as this Trust Agreement remains in effect, the
Issuer Trust (or the Issuer Trustees or Administrators acting on
behalf of the Issuer Trust) shall not undertake any business,
activities or transaction except as expressly provided herein or
contemplated hereby. In particular, neither the Issuer Trustees nor
the Administrators shall (i) acquire any investments or engage in any
activities not authorized by this Trust Agreement, (ii) sell, assign,
transfer, exchange, mortgage, pledge, set-off or otherwise dispose of
any of the Trust Property or interests therein, including to Holders,
except as expressly provided herein, (iii) take any action that would
reasonably be expected to cause the Issuer Trust to become taxable as
a corporation for United States Federal income tax purposes, (iv)
incur any indebtedness for borrowed money or issue any other debt, or
(v) take or consent to any action that would result in the placement
of a Lien on any of the Trust Property. The Property Trustee shall
defend all claims and demands of all Persons at any time claiming any
Lien on any of the Trust Property adverse to the interest of the
Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital
Securities, the Depositor shall have the right and responsibility to
assist the Issuer Trust with respect to, or effect on behalf of the
Issuer Trust, the following (and any actions taken by the Depositor
in furtherance of the following prior to the date of this Trust
Agreement are hereby ratified and confirmed in all respects):
(i) the preparation by the Issuer Trust of a registration
statement, and a prospectus in relation to the Capital Securities,
including any amendments thereto and the taking of any action
necessary or desirable to sell the Capital Securities in a
transaction or a series of transactions not exempt from the
registration requirements of the Securities Act;
(ii) the determination of the States in which to take
appropriate action to qualify or register for sale all or part of the
Capital Securities and the determination of any and all such acts,
other than actions that must be taken by or on behalf of the Issuer
Trust, and the advice to the Issuer Trustees of actions they must
take on behalf of the Issuer Trust, and the preparation for execution
and filing of any documents to be executed and filed by the Issuer
Trust or on behalf of the Issuer Trust, as the Depositor deems
necessary or advisable in
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order to comply with the applicable laws of any such States in
connection with the sale of the Capital Securities;
(iii) the negotiation of the terms of, and the execution
and delivery of, the Underwriting Agreement providing for the sale of
the Capital Securities;
(iv) compliance with the listing requirements of the
Capital Securities upon such securities exchange or exchanges as
shall be determined by the Depositor, the registration of the Capital
Securities under the Exchange Act, if required, and the preparation
and filing of all periodic and other reports and other documents
pursuant to the foregoing; and
(v) the taking of any other actions necessary or desirable
to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the
Administrators and the Property Trustee are authorized and directed
to conduct the affairs of the Issuer Trust and to operate the Issuer
Trust so that the Issuer Trust will not be deemed to be an
"investment company" required to be registered under the Investment
Company Act, and will not be taxable as a corporation for the United
States Federal income tax purposes and so that the Junior
Subordinated Debentures will be treated as indebtedness of the
Depositor for United States income tax purposes. In this connection,
the Property Trustee and the Holders of Common Securities are
authorized to take any action, not inconsistent with applicable law,
the Certificate of Trust or this Trust Agreement, that the Property
Trustee and Holders of Common Securities determine in their
discretion to be necessary or desirable for such purposes, as long as
such action does not adversely affect in any material respect the
interests of the holders of the Outstanding Capital Securities. In no
event shall the Administrators or the Issuer Trustees be liable to
the Issuer Trust or the Holders for any failure to comply with this
section that results from a change in law or regulations or in the
interpretation thereof.
SECTION 2.8. Assets of Trust.
The assets of the Issuer Trust shall consist solely of the
Trust Property.
SECTION 2.9. Title to Trust Property.
Legal title to all Trust Property shall be vested at all times
in the Property Trustee (in its capacity as such) and shall be held
and administered by the Property Trustee for the benefit of the
Issuer Trust and the Holders in accordance with this Trust Agreement.
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ARTICLE III
PAYMENT ACCOUNT
SECTION 3.1. Payment Account.
(a) On or prior to the Closing Date, the Property Trustee shall
establish the Payment Account. The Property Trustee and its agents
shall have exclusive control and sole right of withdrawal with
respect to the Payment Account for the purpose of making deposits in
and withdrawals from the Payment Account in accordance with this
Trust Agreement. All monies and other property deposited or held from
time to time in the Payment Account shall be held by the Property
Trustee in the Payment Account for the exclusive benefit of the
Holders and for distribution as herein provided, including (and
subject to) any priority of payments provided for herein.
(b) The Property Trustee shall deposit in the Payment Account,
promptly upon receipt, all payments of principal of or interest on,
and any other payments or proceeds with respect to, the Junior
Subordinated Debentures. Amounts held in the Payment Account shall
not be invested by the Property Trustee pending distribution thereof.
ARTICLE IV
DISTRIBUTIONS; REDEMPTION
SECTION 4.1. Distributions.
(a) The Trust Securities represent undivided beneficial
interests in the Trust Property, and Distributions (including of
Additional Amounts) will be made on the Trust Securities at the rate
and on the dates that payments of interest (including of Additional
Interest, as defined in the Indenture) are made on the Junior
Subordinated Debentures. Accordingly:
(i) Distributions on the Trust Securities shall be
cumulative and will accumulate whether or not there are funds
of the Issuer Trust available for the payment of Distributions.
Distributions shall accumulate from June 6, 1997, and, except
in the event (and to the extent) that the Depositor exercises
its right to defer the payment of interest on the Debentures
pursuant to the Indenture, shall be payable semiannually in
arrears on June 1 and December 1 of each year, commencing on
December 1, 1997. If any date on which a
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Distribution is otherwise payable on the Trust Securities is
not a Business Day, then the payment of such Distribution shall
be made on the next succeeding day that is a Business Day
(without any interest or other payment in respect of any such
delay), with the same force and effect as if made on the date
on which such payment was originally payable (each date on
which distributions are payable in accordance with this Section
4.1(a), a "Distribution Date").
(ii) The Trust Securities shall be entitled to
Distributions payable at a rate of 8.277% per annum of the
Liquidation Amount of the Trust Securities. The amount of
Distributions payable for any period less than a full
Distribution period shall be computed on the basis of a 360-day
year of twelve 30-day months and the actual number of days
elapsed in a partial month in a period. Distributions payable
for each full Distribution period will be computed by dividing
the rate per annum by two. The amount of Distributions payable
for any period shall include any Additional Amounts in respect
of such period.
(iii) So long as no Debenture Event of Default has
occurred and is continuing, the Depositor has the right under
the Indenture to defer the payment of interest on the Junior
Subordinated Debentures at any time and from time to time for a
period not exceeding 10 consecutive semiannual periods (an
"Extension Period"), provided that no Extension Period may
extend beyond June 1, 2027. As a consequence of any such
deferral, semiannual Distributions on the Trust Securities by
the Trust will also be deferred (and the amount of
Distributions to which Holders of the Trust Securities are
entitled will accumulate additional Distributions thereon at
the rate per annum of 8.277% per annum, compounded
semiannually) from the relevant payment date for such
Distributions, computed on the basis of a 360-day year of
twelve 30-day months and the actual days elapsed in a partial
month in such period. Additional Distributions payable for each
full Distribution period will be computed by dividing the rate
per annum by two (2). The term "Distributions" as used in
Section 4.1
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shall include any such additional Distributions provided
pursuant to this Section 4.1(a)(iii).
(iv) Distributions on the Trust Securities shall be made
by the Property Trustee from the Payment Account and shall be
payable on each Distribution Date only to the extent that the
Issuer Trust has funds then on hand and available in the
Payment Account for the payment of such Distributions.
(b) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders thereof as they
appear on the Securities Register for the Trust Securities at the
close of business on the relevant record date, which shall be at the
close of business on the 15th day of May and November, whether or not
a Business Day).
SECTION 4.2. Redemption.
(a) On each Junior Subordinated Debenture Redemption Date and
on the stated maturity of the Junior Subordinated Debentures, the
Issuer Trust will be required to redeem a Like Amount of Trust
Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property Trustee
by first-class mail, postage prepaid, mailed not less than 30 nor
more than 60 days prior to the Redemption Date to each Holder of
Trust Securities to be redeemed, at such Holder's address appearing
in the Security Register. All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price, or if the Redemption Price
cannot be calculated prior to the time the notice is required to be
sent, the estimate of the Redemption Price provided pursuant to the
Indenture together with a statement that it is an estimate and that
the actual Redemption Price will be calculated on the third Business
Day prior to the Redemption Date (and if an estimate is provided, a
further notice shall be sent of the actual Redemption Price on the
date, or as soon as practicable thereafter, that notice of such
actual Redemption Price is received pursuant to the Indenture);
(iii) the CUSIP number or CUSIP numbers of the Capital
Securities affected;
(iv) if less than all the Outstanding Trust Securities are
to be redeemed, the identification and the total
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Liquidation Amount of the particular Trust Securities to be redeemed;
(v) that on the Redemption Date the Redemption Price will
become due and payable upon each such Trust Security to be redeemed
and that Distributions thereon will cease to accumulate on and after
said date, except as provided in Section 4.2(d) below; and
(vi) the place or places where Trust Securities are to be
surrendered for the payment of the Redemption Price.
The Issuer Trust in issuing the Trust Securities shall use
"CUSIP" numbers, and the Property Trustee shall indicate the "CUSIP"
numbers of the Trust Securities in notices of redemption and related
materials as a convenience to Holders; provided that any such notice
may state that no representation is made as to the correctness of
such numbers either as printed on the Trust Securities or as
contained in any notice of redemption and related material.
(c) The Trust Securities redeemed on each Redemption Date shall
be redeemed at the Redemption Price with the applicable proceeds from
the contemporaneous redemption of Junior Subordinated Debentures.
Redemptions of the Trust Securities shall be made and the Redemption
Price shall be payable on each Redemption Date only to the extent
that the Issuer Trust has funds then on hand and available in the
Payment Account for the payment of such Redemption Price.
(d) If the Property Trustee gives a notice of redemption in
respect of any Capital Securities, then, by 12:00 noon, New York City
time, on the Redemption Date, subject to Section 4.2(c), the Property
Trustee will, with respect to Capital Securities held in global form,
irrevocably deposit with the Clearing Agency for such Capital
Securities, to the extent available therefor, funds sufficient to pay
the applicable Redemption Price and will give such Clearing Agency
irrevocable instructions and authority to pay the Redemption Price to
the Holders of the Capital Securities. With respect to Capital
Securities that are not held in global form, the Property Trustee,
subject to Section 4.2(c), will irrevocably deposit with the Paying
Agent, to the extent available therefor, funds sufficient to pay the
applicable Redemption Price and will give the Paying Agent
irrevocable instructions and authority to pay the Redemption Price to
the Holder of the Capital Securities upon surrender of their Capital
Securities Certificates. Notwithstanding the foregoing, Distributions
payable on or prior to the Redemption Date for any Trust Securities
called for redemption shall be payable to the Holders of such Trust
Securities as they appear on the Register for the Trust
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Securities on the relevant record dates for the related Distribution
Dates. If notice of redemption shall have been given and funds
deposited as required, then, upon the date of such deposit, all
rights of Holders holding Trust Securities so called for redemption
will cease, except the right of such Holders to receive the
Redemption Price and any Distribution payable in respect of the Trust
Securities on or prior to the Redemption Date, but without interest,
and such Securities will cease to be Outstanding. In the event that
any date on which any applicable Redemption Price is payable is not a
Business Day, then payment of the applicable 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. In the event that payment of the Redemption Price in
respect of any Trust Securities called for redemption is improperly
withheld or refused and not paid either by the Issuer Trust or by the
Depositor pursuant to the Guarantee Agreement, Distributions on such
Trust Securities will continue to accumulate, as set forth in Section
4.1, from the Redemption Date originally established by the Issuer
Trust for such Trust Securities to the date such applicable
Redemption Price is actually paid, in which case the actual payment
date will be the date fixed for redemption for purposes of
calculating the applicable Redemption Price.
(e) Subject to Section 4.3(a), if less than all the Outstanding
Trust Securities are to be redeemed on a Redemption Date, then the
aggregate Liquidation Amount of such Trust Securities to be redeemed
shall be allocated pro rata to the Common Securities and the Capital
Securities based on the relative Liquidation Amounts of such classes.
The particular Capital Securities to be redeemed shall be selected on
a pro rata basis based on their respective Liquidation Amounts not
more than 60 days prior to the Redemption Date by the Property
Trustee from the Outstanding Capital Securities not previously called
for redemption, or if the Capital Securities are then held in the
form of a Global Capital Security in accordance with the customary
procedures for the Clearing Agency. The Property Trustee shall
promptly notify the Securities Registrar in writing of the Capital
Securities selected for redemption and, in the case of any Capital
Securities selected for partial redemption, the Liquidation Amount
thereof to be redeemed. For all purposes of this Trust Agreement,
unless the context otherwise requires, all provisions relating to the
redemption of Capital Securities shall relate, in the case of any
Capital Securities redeemed or to be redeemed only in part, to the
portion of the aggregate Liquidation Amount of Capital Securities
that has been or is to be redeemed.
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SECTION 4.3. Subordination of Common Securities.
(a) Payment of Distributions (including Additional Amounts, if
applicable) on, the Redemption Price of, and the Liquidation
Distribution in respect of, the Trust Securities, as applicable,
shall be made, subject to Section 4.2(e), pro rata among the Common
Securities and the Capital Securities based on the Liquidation Amount
of such Trust Securities; provided, however, that if on any
Distribution Date or Redemption Date any Event of Default resulting
from a Debenture Event of Default in Section 5.1(1) or 5.1(2) of the
Indenture shall have occurred and be continuing, no payment of any
Distribution (including any Additional Amounts) on, Redemption Price
of, or Liquidation Distribution in respect of, any Common Security,
and no other payment on account of the redemption, liquidation or
other acquisition of Common Securities, shall be made unless payment
in full in cash of all accumulated and unpaid Distributions
(including any Additional Amounts) on all Outstanding Capital
Securities for all Distribution periods terminating on or prior
thereto, or, in the case of payment of the Redemption Price, the full
amount of such Redemption Price on all Outstanding Capital Securities
then called for redemption, or in the case of payment of the
Liquidation Distribution the full amount of such Liquidation
Distribution on all Outstanding Capital Securities, shall have been
made or provided for, and all funds immediately available to the
Property Trustee shall first be applied to the payment in full in
cash of all Distributions (including any Additional Amounts) on, or
the Redemption Price of, Capital Securities then due and payable. The
existence of an Event of Default does not entitle the Holders of
Capital Securities to accelerate the maturity thereof.
(b) In the case of the occurrence of any Event of Default
resulting from any Debenture Event of Default, the Holder of the
Common Securities shall have no right to act with respect to any such
Event of Default under this Trust Agreement until the effects of all
such Events of Default with respect to the Capital Securities have
been cured, waived or otherwise eliminated. Until all such Events of
Default under this Trust Agreement with respect to the Capital
Securities have been so cured, waived or otherwise eliminated, the
Property Trustee shall act solely on behalf of the Holders of the
Capital Securities and not on behalf of the Holder of the Common
Securities, and only the Holders of the Capital Securities will have
the right to direct the Property Trustee to act on their behalf.
SECTION 4.4. Payment Procedures.
Payments of Distributions (including any Additional
Amounts) in respect of the Capital Securities shall be made by
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check mailed to the address of the Person entitled thereto as such
address shall appear on the Securities Register or, if the Capital
Securities are held by a Clearing Agency, such Distributions shall be
made to the Clearing Agency in immediately available funds, which
will credit the relevant accounts on the applicable Distribution
Dates. Payments of Distributions to Holders of $1,000,000 or more in
aggregate Liquidation Amount of Capital Securities may be made by
wire transfer of immediately available funds upon written request of
such Holder to the Securities Registrar not later than 15 calendar
days prior to the date on which the Distribution is payable. Payments
in respect of the Common Securities shall be made in such manner as
shall be mutually agreed between the Property Trustee and the Holder
of the Common Securities.
SECTION 4.5. Tax Returns and Reports.
The Administrators shall prepare (or cause to be prepared), at
the Depositor's expense, and file all United States Federal, state
and local tax and information returns and reports required to be
filed by or in respect of the Issuer Trust. In this regard, the
Administrators shall (a) prepare and file (or cause to be prepared
and filed) all Internal Revenue Service forms required to be filed in
respect of the Issuer Trust in each taxable year of the Issuer Trust
and (b) prepare and furnish (or cause to be prepared and furnished)
to each Holder all Internal Revenue Service forms required to be
provided by the Issuer Trust. The Administrators shall provide the
Depositor and the Property Trustee with a copy of all such returns
and reports promptly after such filing or furnishing. The Issuer
Trustees shall comply with United States Federal withholding and
backup withholding tax laws and information reporting requirements
with respect to any payments to Holders under the Trust Securities.
On or before December 15 of each year during which any Capital
Securities are outstanding, the Administrators shall furnish to the
Paying Agent such information as may be reasonably requested by the
Property Trustee in order that the Property Trustee may prepare the
information which it is required to report for such year on Internal
Revenue Service Forms 1096 and 1099 pursuant to Section 6049 of the
Internal Revenue Code of 1986, as amended. Such information shall
include the amount of original issue discount includible in income
for each outstanding Capital Security during such year.
SECTION 4.6. Payment of Taxes, Duties, Etc. of the Issuer
Trust.
Upon receipt under the Junior Subordinated Debentures of
Additional Sums, the Property Trustee shall promptly pay any
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taxes, duties or governmental charges of whatsoever nature (other
than withholding taxes) imposed on the Issuer Trust by the United
States or any other taxing authority.
SECTION 4.7. Payments under Indenture or Pursuant to
Direct Actions.
Any amount payable hereunder to any Holder of Capital
Securities shall be reduced by the amount of any corresponding
payment such Holder has directly received pursuant to Section 5.8 of
the Indenture or Section 5.13 of this Trust Agreement.
SECTION 4.8. Liability of the Holder of Common Securities.
The Holder of Common Securities shall be liable for the debts
and obligations of the Issuer Trust as set forth in Section 6.7 of
the Indenture regarding allocation of expenses.
ARTICLE V
TRUST SECURITIES CERTIFICATES
SECTION 5.1. Initial Ownership.
Upon the formation of the Issuer Trust and the contribution by
the Depositor pursuant to Section 2.3 and until the issuance of the
Trust Securities, and at any time during which no Trust Securities
are outstanding, the Depositor shall be the sole beneficial owner of
the Issuer Trust.
SECTION 5.2. The Trust Securities Certificates.
(a) The Trust Securities Certificates shall be issued in
multiples of $1,000 and shall be executed on behalf of the Issuer
Trust by manual or facsimile signature of at least one Administrator.
Trust Securities Certificates bearing the manual signatures of
individuals who were, at the time when such signatures shall have
been affixed, authorized to sign on behalf of the Issuer Trust, shall
be validly issued and entitled to the benefits of this Trust
Agreement, notwithstanding that such individuals or any of them shall
have ceased to be so authorized prior to the delivery of such Trust
Securities Certificates or did not hold such offices at the date of
delivery of such Trust Securities Certificates. A transferee of a
Trust Securities Certificate shall become a Holder, and shall be
entitled to the rights and subject to the obligations of a Holder
hereunder, upon due registration of such Trust Securities Certificate
in such transferee's name pursuant to Section 5.5.
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(b) Upon their original issuance, Capital Securities
Certificates shall be issued in the form of one or more fully
registered Global Capital Securities Certificates which will be
deposited with or on behalf of the Depositary and registered in the
name of the Depositary's nominee. Unless and until it is exchangeable
in whole or in part for the Capital Securities in definitive form, a
global security may not be transferred except as a whole 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 of such
Depositary or a nominee of such successor.
(c) A single Common Securities Certificate representing the
Common Securities shall be issued to the Depositor in the form of a
definitive Common Securities Certificate.
SECTION 5.3. Execution and Delivery of Trust Securities
Certificates.
At the Closing Date, the Administrators shall cause Trust
Securities Certificates, in an aggregate Liquidation Amount as
provided in Sections 2.4 and 2.5, to be executed on behalf of the
Issuer Trust and delivered to the Property Trustee and upon such
delivery the Property Trustee shall authenticate such Trust
Securities Certificates and deliver such Trust Securities
Certificates upon the written order of the Depositor, executed by two
authorized officers thereof, without further corporate action by the
Depositor, in authorized denominations.
SECTION 5.4. Global Capital Security.
(a) Any Global Capital Security issued under this Trust
Agreement shall be registered in the name of the nominee of the
Clearing Agency and delivered to such custodian therefor, and such
Global Capital Security shall constitute a single Capital Security
for all purposes of this Trust Agreement.
(b) Notwithstanding any other provision in this Trust
Agreement, a Global Capital Security may not be exchanged in whole or
in part for Capital Securities registered, and no transfer of the
Global Capital Security in whole or in part may be registered, in the
name of any Person other than the Clearing Agency for such Global
Capital Security, or its nominee thereof unless (i) such Clearing
Agency advises the Property Trustee in writing that such Clearing
Agency is no longer willing or able to properly discharge its
responsibilities as Clearing Agency with respect to such Global
Capital Security, and the Depositor is unable to locate a qualified
successor, (ii) the Issuer Trust at its option advises the Depositary
in writing that it elects to terminate the book-entry system through
the Clearing Agency,
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or (iii) there shall have occurred and be continuing an Event of
Default.
(c) If a Capital Security is to be exchanged in whole or in
part for a beneficial interest in a Global Capital Security, then
either (i) such Global Capital Security shall be so surrendered for
exchange or cancellation as provided in this Article V or (ii) the
Liquidation Amount thereof shall be reduced or increased by an amount
equal to the portion thereof to be so exchanged or cancelled or equal
to the Liquidation Amount of such other Capital Security to be so
exchanged for a beneficial interest therein, as the case may be, by
means of an appropriate adjustment made on the records of the
Security Registrar, whereupon the Property Trustee, in accordance
with the Applicable Procedures, shall instruct the Clearing Agency or
its authorized representative to make a corresponding adjustment to
its records. Upon any such surrender or adjustment of a Global
Capital Security by the Clearing Agency, accompanied by registration
instructions, the Property Trustee shall, subject to Section 5.4(b)
and as otherwise provided in this Article V, authenticate and deliver
any Capital Securities issuable in exchange for such Global Capital
Security (or any portion thereof) in accordance with the instructions
of the Clearing Agency. The Property Trustee shall not be liable for
any delay in delivery of such instructions and may conclusively rely
on, and shall be fully protected in relying on, such instructions.
(d) Every Capital Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a
Global Capital Security or any portion thereof, whether pursuant to
this Article V or Article IV or otherwise, shall be authenticated and
delivered in the form of, and shall be, a Global Capital Security,
unless such Global Capital Security is registered in the name of a
Person other than the Clearing Agency for such Global Capital
Security or a nominee thereof.
(e) The Clearing Agency or its nominee, as the registered owner
of a Global Capital Security, shall be considered the Holder of the
Capital Securities represented by such Global Capital Security for
all purposes under this Trust Agreement and the Capital Securities,
and owners of beneficial interests in such Global Capital Security
shall hold such interests pursuant to the Applicable Procedures and,
except as otherwise provided herein, shall not be entitled to receive
physical delivery of any such Capital Securities in definitive form
and shall not be considered the Holders thereof under this Trust
Agreement. Accordingly, any such owner's beneficial interest in the
Global Capital Security shall be shown only on, and the transfer of
such interest shall be effected only through, records maintained by
the Clearing Agency or its nominee. Neither the Property
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Trustee nor the Securities Registrar shall have any liability in
respect of any transfers effected by the Clearing Agency.
(f) The rights of owners of beneficial interests in a Global
Capital Security shall be exercised only through the Clearing Agency
and shall be limited to those established by law and agreements
between such owners and the Clearing Agency.
SECTION 5.5. Registration of Transfer and Exchange Generally;
Certain Transfers and Exchanges; Capital Securities Certificates.
(a) The Property Trustee shall keep or cause to be kept at its
Corporate Trust Office a register or registers for the purpose of
registering Capital Securities Certificates and transfers and
exchanges of Capital Securities Certificates in which the registrar
and transfer agent with respect to the Capital Securities (the
"Securities Registrar"), subject to such reasonable regulations as it
may prescribe, shall provide for the registration of Capital
Securities Certificates and Common Securities Certificates (subject
to Section 5.11 in the case of Common Securities Certificates) and
registration of transfers and exchanges of Capital Securities
Certificates as herein provided. Such register is herein sometimes
referred to as the "Securities Register." The Property Trustee is
hereby appointed "Securities Registrar" for the purpose of
registering Capital Securities and transfers of Capital Securities as
herein provided.
Upon surrender for registration of transfer of any Capital
Security at the offices or agencies of the Property Trustee
designated for that purpose the Depositor shall execute, and
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Capital Securities of the same series of
any authorized denominations of like tenor and aggregate principal
amount and bearing such legends as may be required by this Trust
Agreement.
At the option of the Holder, Capital Securities may be
exchanged for other Capital Securities of any authorized
denominations, of like tenor and aggregate Liquidation Amount and
bearing such legends as may be required by this Trust Agreement, upon
surrender of the Capital Securities to be exchanged as such office or
agency. Whenever any securities are so surrendered for exchange, the
Property Trustee shall execute and authenticate and deliver the
Capital Securities that the Holder making the exchange is entitled to
receive.
All Capital Securities issued upon any transfer or exchange of
Capital Securities shall be the valid obligations of the Issuer
Trust, evidencing the same debt, and entitled to the
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same benefits under this Trust Agreement, as the Capital Securities
surrendered upon such transfer or exchange.
Every Capital Security presented or surrendered for transfer or
exchange shall (if so required by the Property Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in
form satisfactory to the Property Trustee and the Securities
Registrar, duly executed by the Holder thereof or such Holder's
attorney duly authorized in writing.
No service charge shall be made to a Holder for any transfer or
exchange of Capital Securities, but the Property Trustee may require
payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or
exchange of Capital Securities.
Neither the Issuer Trust nor the Property Trustee shall be
required, pursuant to the provisions of this Section, (i) to issue,
register the transfer of or exchange any Capital Security during a
period beginning at the opening of business 15 days before the day of
selection for redemption of Capital Securities pursuant to Article IV
and ending at the close of business on the day of mailing of the
notice of redemption, or (ii) to register the transfer of or exchange
any Capital Security so selected for redemption in whole or in part,
except, in the case of any such Capital Security to be redeemed in
part, any portion thereof not to be redeemed.
(b) Certain Transfers and Exchanges. Trust Securities may only
be transferred, in whole or in part, in accordance with the terms and
conditions set forth in this Trust Agreement. Any transfer or
purported transfer of any Trust Security not made in accordance with
this Trust Agreement shall be null and void.
(i) Non Global Security to Non Global Security. A Trust
Security that is not a Global Capital Security may be
transferred, in whole or in part, to a Person who takes
delivery in the form of another Trust Security that is not a
Global Security as provided in Section 5.5(a).
(ii) Free Transferability. Subject to this Section
5.5, Capital Securities shall be freely transferable.
(iii) Exchanges Between Global Capital Security and
Non-Global Capital Security. A beneficial interest in a Global
Capital Security may be exchanged for a Capital Security that
is not a Global Capital Security as provided in Section 5.4.
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SECTION 5.6. Mutilated, Destroyed, Lost or Stolen Trust
Securities Certificates.
If (a) any mutilated Trust Securities Certificate shall be
surrendered to the Securities Registrar, or if the Securities
Registrar shall receive evidence to its satisfaction of the
destruction, loss or theft of any Trust Securities Certificate and
(b) there shall be delivered to the Securities Registrar and the
Administrators such security or indemnity as may be required by them
to save each of them harmless, then in the absence of notice that
such Trust Securities Certificate shall have been acquired by a bona
fide purchaser, the Administrators, or any one of them, on behalf of
the Issuer Trust shall execute and make available for delivery, and
the Property Trustee shall authenticate, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Trust Securities
Certificate, a new Trust Securities Certificate of like class, tenor
and denomination. In connection with the issuance of any new Trust
Securities Certificate under this Section, the Administrators or the
Securities Registrar may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in
connection therewith. Any duplicate Trust Securities Certificate
issued pursuant to this Section shall constitute conclusive evidence
of an undivided beneficial interest in the assets of the Issuer Trust
corresponding to that evidenced by the lost, stolen or destroyed
Trust Certificate, as if originally issued, whether or not the lost,
stolen or destroyed Trust Securities Certificate shall be found at
any time.
SECTION 5.7. Persons Deemed Holders.
The Issuer Trustees or the Securities Registrar shall treat the
Person in whose name any Trust Securities are issued as the owner of
such Trust Securities for the purpose of receiving Distributions and
for all other purposes whatsoever, and none of the Issuer Trustees,
the Administrators nor the Securities Registrar shall be bound by any
notice to the contrary.
SECTION 5.8. Access to List of Holders' Names and Addresses.
Each Holder and each Owner shall be deemed to have agreed not
to hold the Depositor, the Property Trustee, or the Administrators
accountable by reason of the disclosure of its name and address,
regardless of the source from which such information was derived.
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SECTION 5.9. Maintenance of Office or Agency.
The Property Trustee shall designate, with the consent of the
Administrators, which consent shall not be unreasonably withheld, an
office or offices or agency or agencies where Capital Securities
Certificates may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Issuer Trustees
in respect of the Trust Securities Certificates may be served. The
Property Trustee initially designates its Corporate Trust Office at
Four Albany Street, New York, NY 10006, Attention: Corporate Trust
and Agency Group - Corporate Market Services, as its corporate trust
office for such purposes. The Property Trustee shall give prompt
written notice to the Depositor, the Administrators and to the
Holders of any change in the location of the Securities Register or
any such office or agency.
SECTION 5.10. Appointment of Paying Agent.
The Paying Agent shall make Distributions to Holders from the
Payment Account and shall report the amounts of such Distributions to
the Property Trustee and the Administrators. Any Paying Agent shall
have the revocable power to withdraw funds from the Payment Account
solely for the purpose of making the Distributions referred to above.
The Property Trustee may revoke such power and remove any Paying
Agent in its sole discretion. The Paying Agent shall initially be the
Property Trustee. Any Person acting as Paying Agent shall be
permitted to resign as Paying Agent upon 30 days' written notice to
the Administrators, and the Property Trustee. In the event that the
Property Trustee shall no longer be the Paying Agent or a successor
Paying Agent shall resign or its authority to act be revoked, the
Property Trustee shall appoint a successor (which shall be a bank or
trust company) that is reasonably acceptable to the Administrators to
act as Paying Agent. Such successor Paying Agent or any additional
Paying Agent appointed by the Administrators shall execute and
deliver to the Issuer Trustees an instrument in which such successor
Paying Agent or additional Paying Agent shall agree with the Issuer
Trustees that as Paying Agent, such successor Paying Agent or
additional Paying Agent will hold all sums, if any, held by it for
payment to the Holders in trust for the benefit of the Holders
entitled thereto until such sums shall be paid to such Holders. The
Paying Agent shall return all unclaimed funds to the Property Trustee
and upon removal of a Paying Agent such Paying Agent shall also
return all funds in its possession to the Property Trustee. The
provisions of Sections 8.1, 8.3 and 8.6 herein shall apply to the
Bank also in its role as Paying Agent, for so long as the Bank shall
act as Paying Agent and, to the extent applicable, to any other
paying agent appointed hereunder. Any reference in this Trust
Agreement to the Paying Agent shall include any
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co-paying agent chosen by the Property Trustee unless the
context requires otherwise.
SECTION 5.11. Ownership of Common Securities by Depositor.
At the Closing Date, the Depositor shall acquire and retain
beneficial and record ownership of the Common Securities. Neither the
Depositor nor any successor Holder of the Common Securities may
transfer less than all the Common Securities, and the Depositor or
any such successor Holder may transfer the Common Securities only (i)
in connection with a consolidation or merger of the Depositor into
another corporation or any conveyance, transfer or lease by the
Depositor of its properties and assets substantially as an entirety
to any Person, pursuant to Section 8.1 of the Indenture, or (ii) to
an Affiliate of the Depositor in compliance with applicable law
(including the Securities Act and applicable state securities and
blue sky laws). To the fullest extent permitted by law, any attempted
transfer of the Common Securities, other than as set forth in the
immediately preceding sentence, shall be void. The Administrators
shall cause each Common Securities Certificate issued to the
Depositor to contain a legend stating "THIS CERTIFICATE IS NOT
TRANSFERABLE EXCEPT TO THE DEPOSITOR OR AN AFFILIATE OF THE DEPOSITOR
IN COMPLIANCE WITH APPLICABLE LAW AND SECTION 5.11 OF THE TRUST
AGREEMENT."
SECTION 5.12. Notices to Clearing Agency.
To the extent that a notice or other communication to the
Holders is required under this Trust Agreement, for so long as
Capital Securities are represented by a Global Capital Securities
Certificate, the Administrators and the Issuer Trustees shall give
all such notices and communications specified herein to be given to
the Clearing Agency, and shall have no obligations to the Owners.
SECTION 5.13. Rights of Holders.
(a) The legal title to the Trust Property is vested exclusively
in the Property Trustee (in its capacity as such) in accordance with
Section 2.9, and the Holders shall not have any right or title
therein other than the undivided beneficial ownership interest in the
assets of the Issuer Trust conferred by their Trust Securities and
they shall have no right to call for any partition or division of
property, profits or rights of the Issuer Trust except as described
below. The Trust Securities shall be personal property giving only
the rights specifically set forth therein and in this Trust
Agreement. The Trust Securities shall have no preemptive or similar
rights and when issued and delivered to Holders against payment of
the purchase price therefor, as provided herein, will be fully paid
- 36 -
and nonassessable by the Issuer Trust. Except as otherwise provided
in Section 4.8, the Holders of the Trust Securities, in their
capacities as such, shall be entitled to the same limitation of
personal liability extended to stockholders of private corporations
for profit organized under the General Corporation Law of the State
of Delaware.
(b) For so long as any Capital Securities remain Outstanding,
if, upon a Debenture Event of Default, the Debenture Trustee fails or
the holders of not less than 25% in principal amount of the
outstanding Junior Subordinated Debentures fail to declare the
principal of all of the Junior Subordinated Debentures to be
immediately due and payable, the Holders of at least 25% in
Liquidation Amount of the Capital Securities then Outstanding shall
have such right to make such declaration by a notice in writing to
the Property Trustee, the Depositor and the Debenture Trustee.
At any time after such a declaration of acceleration with
respect to the Junior Subordinated Debentures has been made and
before a judgment or decree for payment of the money due has been
obtained by the Debenture Trustee as provided in the Indenture, the
Holders of a Majority in Liquidation Amount of the Capital
Securities, by written notice to the Property Trustee, the Depositor
and the Debenture Trustee, may rescind and annul such declaration and
its consequences if:
(i) the Depositor has paid or deposited with the
Debenture Trustee a sum sufficient to pay
(A) all overdue installments of interest on all
of the Junior Subordinated Debentures,
(B) any accrued Additional Interest on all of
the Junior Subordinated Debentures,
(C) the principal of (and premium, if any, on) any
Junior Subordinated Debentures which have become due
otherwise than by such declaration of acceleration and
interest and Additional Interest thereon at the rate borne
by the Junior Subordinated Debentures, and
(D) all sums paid or advanced by the Debenture
Trustee under the Indenture and the reasonable
compensation, expenses, disbursements and advances of the
Debenture Trustee and the Property Trustee, their agents
and counsel; and
(ii) all Events of Default with respect to the Junior
Subordinated Debentures, other than the non-payment
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of the principal of the Junior Subordinated Debentures
which has become due solely by such acceleration, have
been cured or waived as provided in Section 5.13 of the
Indenture.
If the Property Trustee fails to annul any such declaration and
waive such default, the Holders of at least a Majority in Liquidation
Amount of the Capital Securities shall also have the right to rescind
and annul such declaration and its consequences by written notice to
the Depositor, the Property Trustee and the Debenture Trustee,
subject to the satisfaction of the conditions set forth in Clause (i)
and (ii) of this Section 5.13.
The Holders of at least a Majority in Liquidation Amount of the
Capital Securities may, on behalf of the Holders of all the Capital
Securities, waive any past default under the Indenture, except a
default in the payment of principal or interest (unless such default
has been cured and a sum sufficient to pay all matured installments
of interest and principal due otherwise than by acceleration has been
deposited with the Debenture Trustee) or a default in respect of a
covenant or provision which under the Indenture cannot be modified or
amended without the consent of the holder of each outstanding Junior
Subordinated Debentures. No such rescission shall affect any
subsequent default or impair any right consequent thereon.
Upon receipt by the Property Trustee of written notice
declaring such an acceleration, or rescission and annulment thereof,
by Holders of the Capital Securities all or part of which is
represented by Global Capital Securities, a record date shall be
established for determining Holders of Outstanding Capital Securities
entitled to join in such notice, which record date shall be at the
close of business on the day the Property Trustee receives such
notice. The Holders on such record date, or their duly designated
proxies, and only such Persons, shall be entitled to join in such
notice, whether or not such Holders remain Holders after such record
date; provided, that, unless such declaration of acceleration, or
rescission and annulment, as the case may be, shall have become
effective by virtue of the requisite percentage having joined in such
notice prior to the day which is 90 days after such record date, such
notice of declaration of acceleration, or rescission and annulment,
as the case may be, shall automatically and without further action by
any Holder be canceled and of no further effect. Nothing in this
paragraph shall prevent a Holder, or a proxy of a Holder, from
giving, after expiration of such 90-day period, a new written notice
of declaration of acceleration, or rescission and annulment thereof,
as the case may be, that is identical to a written notice which has
been canceled pursuant to the proviso
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to the preceding sentence, in which event a new record date shall be
established pursuant to the provisions of this Section 5.13(b).
(c) For so long as any Capital Securities remain Outstanding,
to the fullest extent permitted by law and subject to the terms of
this Trust Agreement and the Indenture, upon a Debenture Event of
Default specified in Section 5.1(1) or 5.1(2) of the Indenture, any
Holder of Capital Securities shall have the right to institute a
proceeding directly against the Depositor, pursuant to Section 5.9 of
the Indenture, for enforcement of payment to such Holder of the
principal amount of or interest on Junior Subordinated Debentures
having an aggregate principal amount equal to the aggregate
Liquidation Amount of the Capital Securities of such Holder (a
"Direct Action"). Except as set forth in Sections 5.13(b) and 5.13
(c), the Holders of Capital Securities shall have no right to
exercise directly any right or remedy available to the holders of, or
in respect of, the Junior Subordinated Debentures.
ARTICLE VI
ACTS OF HOLDERS; MEETINGS; VOTING
SECTION 6.1. Limitations on Holder's Voting Rights.
(a) Except as provided in this Trust Agreement and in the
Indenture and as otherwise required by law, no Holder of Capital
Securities shall have any right to vote or in any manner otherwise
control the administration, operation and management of the Issuer
Trust or the obligations of the parties hereto, nor shall anything
herein set forth or contained in the terms of the Trust Securities
Certificates be construed so as to constitute the Holders from time
to time as members of an association.
(b) So long as any Junior Subordinated Debentures are held by
the Property Trustee on behalf of the Issuer Trust, the Property
Trustee shall not (i) direct the time, method and place of conducting
any proceeding for any remedy available to the Debenture Trustee, or
executing any trust or power conferred on the Property Trustee with
respect to such Junior Subordinated Debentures, (ii) waive any past
default that may be waived under Section 5.13 of the Indenture, (iii)
exercise any right to rescind or annul a declaration that the
principal of all the Junior Subordinated Debentures shall be due and
payable or (iv) consent to any amendment, modification or termination
of the Indenture or the Junior Subordinated Debentures, where such
consent shall be required, without, in each case, obtaining the prior
approval of the Holders of at least a Majority in
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Liquidation Amount of the Capital Securities, provided, however, that
where a consent under the Indenture would require the consent of each
Holder of Junior Subordinated Debentures affected thereby, no such
consent shall be given by the Property Trustee without the prior
written consent of each Holder of Capital Securities. The Property
Trustee shall not revoke any action previously authorized or approved
by a vote of the Holders of Capital Securities, except by a
subsequent vote of the Holders of Capital Securities. The Property
Trustee shall notify all Holders of the Capital Securities of any
notice of default received with respect to the Junior Subordinated
Debentures. In addition to obtaining the foregoing approvals of the
Holders of the Capital Securities, prior to taking any of the
foregoing actions, the Issuer Trustees shall, at the expense of the
Depositor, obtain an Opinion of Counsel experienced in such matters
to the effect that such action will not cause the Issuer Trust to be
taxable as a corporation for United States Federal income tax
purposes.
(c) If any proposed amendment to the Trust Agreement provides
for, or the Issuer Trust otherwise proposes to effect, (i) any action
that would adversely affect in any material respect the interests,
powers, preferences or special rights of the Capital Securities,
whether by way of amendment to the Trust Agreement or otherwise, or
(ii) the dissolution, winding-up or termination of the Issuer Trust,
other than pursuant to the terms of this Trust Agreement, then the
Holders of Outstanding Trust Securities as a 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 the Holders of at
least a Majority in Liquidation Amount of the Capital Securities.
Notwithstanding any other provision of this Trust Agreement, no
amendment to this Trust Agreement may be made if, as a result of such
amendment, it would cause the Issuer Trust to be taxable as a
corporation for United States Federal income tax purposes.
SECTION 6.2. Notice of Meetings.
Notice of all meetings of the Holders, stating the time, place
and purpose of the meeting, shall be given by the Property Trustee
pursuant to Section 10.8 to each Holder of record, at his registered
address, at least 15 days and not more than 90 days before the
meeting. At any such meeting, any business properly before the
meeting may be so considered whether or not stated in the notice of
the meeting. Any adjourned meeting may be held as adjourned without
further notice.
SECTION 6.3. Meetings of Holders.
No annual meeting of Holders is required to be held. The
Property Trustee, however, shall call a meeting of Holders to
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vote on any matter upon the written request of the Holders of record
of 25% of the aggregate Liquidation Amount of the Capital Securities
and the Administrators or the Property Trustee may, at any time in
their discretion, call a meeting of Holders of Capital Securities to
vote on any matters as to which Holders are entitled to vote.
Holders of at least a Majority in Liquidation Amount of the
Capital Securities, present in person or represented by proxy, shall
constitute a quorum at any meeting of Holders of the Capital
Securities.
If a quorum is present at a meeting, an affirmative vote by the
Holders of record present, in person or by proxy, holding Capital
Securities representing at least a Majority in Liquidation Amount of
the Capital Securities held by the Holders present, either in person
or by proxy, at such meeting shall constitute the action of the
Holders of Capital Securities, unless this Trust Agreement requires a
greater number of affirmative votes.
SECTION 6.4. Voting Rights.
Holders shall be entitled to one vote for each $1,000 of
Liquidation Amount represented by their Outstanding Trust Securities
in respect of any matter as to which such Holders are
entitled to vote.
SECTION 6.5. Proxies, etc.
At any meeting of Holders, any Holder entitled to vote thereat
may vote by proxy, provided that no proxy shall be voted at any
meeting unless it shall have been placed on file with the Property
Trustee, or with such other officer or agent of the Issuer Trust as
the Property Trustee may direct, for verification prior to the time
at which such vote shall be taken. Pursuant to a resolution of the
Property Trustee, proxies may be solicited in the name of the
Property Trustee or one or more officers of the Property Trustee.
Only Holders of record shall be entitled to vote. When Trust
Securities are held jointly by several persons, any one of them may
vote at any meeting in person or by proxy in respect of such Trust
Securities, but if more than one of them shall be present at such
meeting in person or by proxy, and such joint owners or their proxies
so present disagree as to any vote to be cast, such vote shall not be
received in respect of such Trust Securities. A proxy purporting to
be executed by or on behalf of a Holder shall be deemed valid unless
challenged at or prior to its exercise, and the burden of proving
invalidity shall rest on the challenger. No proxy shall be valid more
than three years after its date of execution.
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SECTION 6.6. Holder Action by Written Consent.
Any action which may be taken by Holders at a meeting may be
taken without a meeting if Holders holding at least a Majority in
Liquidation Amount of all Trust Securities entitled to vote in
respect of such action (or such larger proportion thereof as shall be
required by any other provision of this Trust Agreement) shall
consent to the action in writing.
SECTION 6.7. Record Date for Voting and Other Purposes.
For the purposes of determining the Holders who are entitled to
notice of and to vote at any meeting or by written consent, or to
participate in any distribution on the Trust Securities in respect of
which a record date is not otherwise provided for in this Trust
Agreement, or for the purpose of any other action, the Administrators
or Property Trustee may from time to time fix a date, not more than
90 days prior to the date of any meeting of Holders or the payment of
a distribution or other action, as the case may be, as a record date
for the determination of the identity of the Holders of record for
such purposes.
SECTION 6.8. Acts of Holders.
Any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Trust Agreement
to be given, made or taken by Holders may be embodied in and
evidenced by one or more instruments of substantially similar tenor
signed by such Holders in person or by an agent duly appointed in
writing; and, except as otherwise expressly provided herein, such
action shall become effective when such instrument or instruments are
delivered to the Property Trustee. Such instrument or instruments
(and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such
instrument or instruments. Proof of execution of any such instrument
or of a writing appointing any such agent shall be sufficient for any
purpose of this Trust Agreement and (subject to Section 8.1)
conclusive in favor of the Issuer Trustees, if made in the manner
provided in this Section.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of
such execution or by a certificate of a notary public or other
officer authorized by law to take acknowledgments of deeds,
certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity,
such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date
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of the execution of any such instrument or writing, or the authority
of the Person executing the same, may also be proved in any other
manner which any Issuer Trustee or Administrator receiving the same
deems sufficient.
The ownership of Trust Securities shall be proved by the
Securities Register.
Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Trust Security shall bind
every future Holder of the same Trust Security and the Holder of
every Trust Security issued upon the registration of transfer thereof
or in exchange therefor or in lieu thereof in respect of anything
done, omitted or suffered to be done by the Issuer Trustees, the
Administrators or the Issuer Trust in reliance thereon, whether or
not notation of such action is made upon such Trust Security.
Without limiting the foregoing, a Holder entitled hereunder to
take any action hereunder with regard to any particular Trust
Security may do so with regard to all or any part of the Liquidation
Amount of such Trust Security or by one or more duly appointed agents
each of which may do so pursuant to such appointment with regard to
all or any part of such Liquidation Amount.
If any dispute shall arise among the Holders, the
Administrators or the Issuer Trustees with respect to the
authenticity, validity or binding nature of any request, demand,
authorization, direction, consent, waiver or other Act of such Holder
or Issuer Trustee under this Article VI, then the determination of
such matter by the Property Trustee shall be conclusive with respect
to such matter.
A Holder may institute a legal proceeding directly against the
Depositor under the Guarantee Agreement to enforce its rights under
the Guarantee Agreement without first instituting a legal proceeding
against the Guarantee Trustee (as defined in the Guarantee
Agreement), the Issuer Trust, any Issuer Trustee, any Administrator
or any person or entity.
SECTION 6.9. Inspection of Records.
Upon reasonable notice to the Administrators and the Property
Trustee, the records of the Issuer Trust shall be open to inspection
by Holders during normal business hours for any purpose reasonably
related to such Holder's interest as a Holder.
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ARTICLE VII
REPRESENTATIONS AND WARRANTIES
SECTION 7.1. Representations and Warranties of the
Property Trustee and the Delaware Trustee.
The Property Trustee and the Delaware Trustee, each severally
on behalf of and as to itself, hereby represents and warrants for the
benefit of the Depositor and the Holders that:
(a) The Property Trustee is a banking corporation with trust
powers, duly organized, validly existing and in good standing under
the laws of New York, with trust power and authority to execute and
deliver, and to carry out and perform its obligations under the terms
of this Trust Agreement.
(b) The execution, delivery and performance by the Property
Trustee of this Trust Agreement has been duly authorized by all
necessary corporate action on the part of the Property Trustee; and
this Trust Agreement has been duly executed and delivered by the
Property Trustee, and 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).
(c) The execution, delivery and performance of this Trust
Agreement by the Property Trustee does not conflict with or
constitute a breach of the certificate of incorporation or by-laws of
the Property Trustee.
(d) At the Closing Date, the Property Trustee has not knowingly
created any liens or encumbrances on the Trust Securities.
(e) No consent, approval or authorization of, or registration
with or notice to, any New York State or federal banking authority is
required for the execution, delivery or performance by the Property
Trustee, of this Trust Agreement.
(f) The Delaware Trustee is duly organized, validly existing
and in good standing under the laws of the State of Delaware, with
trust power and authority to execute and deliver, and to carry out
and perform its obligations under the terms of, the Trust Agreement.
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(g) The execution, delivery and performance by the Delaware
Trustee of this Trust Agreement has been duly authorized by all
necessary corporate action on the part of the Delaware Trustee; and
this Trust Agreement has been duly executed and delivered by the
Delaware Trustee, and 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' right 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).
(h) The execution, delivery and performance of this Trust
Agreement by the Delaware Trustee does not conflict with or
constitute a breach of the certificate of incorporation or by-laws of
the Delaware Trustee.
(i) 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 Delaware Trustee,
of this Trust Agreement.
(j) The Delaware Trustee is an entity which has its principal
place of business in the State of Delaware.
SECTION 7.2. Representations and Warranties of Depositor.
The Depositor hereby represents and warrants for the benefit of
the Holders that:
(a) the Trust Securities Certificates issued at the Closing
Date on behalf of the Issuer Trust have been duly authorized and will
have been duly and validly executed, issued and delivered by the
Issuer Trustees pursuant to the terms and provisions of, and in
accordance with the requirements of, this Trust Agreement, and the
Holders will be, as of each such date, entitled to the benefits of
this Trust Agreement; and
(b) there are no taxes, fees or other governmental charges
payable by the Issuer Trust (or the Issuer Trustees on behalf of the
Issuer Trust) under the laws of the State of Delaware or any
political subdivision thereof in connection with the execution,
delivery and performance by either the Property Trustee or the
Delaware Trustee, as the case may be, of this Trust Agreement.
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ARTICLE VIII
THE ISSUER TRUSTEES; THE ADMINISTRATORS
SECTION 8.1. Certain Duties and Responsibilities.
(a) The duties and responsibilities of the Issuer Trustees and
the Administrators shall be as provided by this Trust Agreement and,
in the case of the Property Trustee, by the Trust Indenture Act.
Notwithstanding the foregoing, no provision of this Trust Agreement
shall require the Issuer Trustees or the Administrators to expend or
risk their own funds or otherwise incur any financial liability in
the performance of any of their duties hereunder, or in the exercise
of any of their rights or powers, if they shall have reasonable
grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to
it. Whether or not therein expressly so provided, every provision of
this Trust Agreement relating to the conduct or affecting the
liability of or affording protection to the Issuer Trustees or the
Administrators shall be subject to the provisions of this Section.
Nothing in this Trust Agreement shall be construed to release an
Administrator from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct. To the
extent that, at law or in equity, an Issuer Trustee or Administrator
has duties and liabilities relating to the Issuer Trust or to the
Holders, such Issuer Trustee or Administrator shall not be liable to
the Issuer Trust or to any Holder for such Issuer Trustee's or
Administrator's good faith reliance on the provisions of this Trust
Agreement. The provisions of this Trust Agreement, to the extent that
they restrict the duties and liabilities of the Issuer Trustees and
Administrators otherwise existing at law or in equity, are agreed by
the Depositor and the Holders to replace such other duties and
liabilities of the Issuer Trustees and Administrators.
(b) All payments made by the Property Trustee or a Paying Agent
in respect of the Trust Securities shall be made only from the
revenue and proceeds from the Trust Property and only to the extent
that there shall be sufficient revenue or proceeds from the Trust
Property to enable the Property Trustee or a Paying Agent to make
payments in accordance with the terms hereof. Each Holder, by its
acceptance of a Trust Security, agrees that it will look solely to
the revenue and proceeds from the Trust Property to the extent
legally available for distribution to it as herein provided and that
neither the Issuer Trustees nor the Administrators are personally
liable to it for any amount distributable in respect of any Trust
Security or for any other liability in respect of any Trust Security.
This Section 8.1(b) does not limit the liability of the Issuer
Trustees expressly
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set forth elsewhere in this Trust Agreement or, in the case of the
Property Trustee, in the Trust Indenture Act.
(c) The Property Trustee, before the occurrence of any Event of
Default and after the curing of all Events of Default that may have
occurred, shall undertake to perform only such duties as are
specifically set forth in this Trust Agreement (including pursuant to
Section 10.10), and no implied covenants shall be read into this
Trust Agreement against the Property Trustee. If an Event of Default
has occurred (that has not been cured or waived pursuant to Section
5.13 of the Indenture), the Property Trustee shall enforce this Trust
Agreement for the benefit of the Holders and shall exercise such of
the rights and powers vested in it by this Trust Agreement, and use
the same degree of care and skill in its exercise thereof, as a
prudent person would exercise or use under the circumstances in the
conduct of his or her own affairs.
(d) No provision of this Trust Agreement shall be construed to
relieve the Property Trustee from liability for its own negligent
action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) prior to the occurrence of any Event of Default and
after the curing or waiving of all such Events of Default that
may have occurred:
(A) the duties and obligations of the Property
Trustee shall be determined solely by the express
provisions of this Trust Agreement (including pursuant to
Section 10.10), and the Property Trustee shall not be
liable except for the performance of such duties and
obligations as are specifically set forth in this Trust
Agreement (including pursuant to Section 10.10); 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 Trust
Agreement; but in the case of any such certificates or
opinions that by any provision hereof or of the Trust
Indenture Act 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 Trust Agreement;
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(ii) the Property Trustee shall not be liable for any
error of judgment made in good faith by an authorized officer
of the Property Trustee, unless it shall be proved that the
Property Trustee was negligent in ascertaining the pertinent
facts;
(iii) the Property Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in
good faith in accordance with the direction of the Holders of
at least a Majority in Liquidation Amount of the Capital
Securities relating to the time, method and place of conducting
any proceeding for any remedy available to the Property
Trustee, or exercising any trust or power conferred upon the
Property Trustee under this Trust Agreement;
(iv) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Junior
Subordinated Debentures and the Payment Account shall be to
deal with such property in a similar manner as the Property
Trustee deals with similar property for its own account,
subject to the protections and limitations on liability
afforded to the Property Trustee under this Trust Agreement and
the Trust Indenture Act;
(v) the Property Trustee shall not be liable for any
interest on any money received by it except as it may otherwise
agree with the Depositor; and money held by the Property
Trustee need not be segregated from other funds held by it
except in relation to the Payment Account maintained by the
Property Trustee pursuant to Section 3.1 and except to the
extent otherwise required by law;
(vi) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrators or the
Depositor with their respective duties under this Trust
Agreement, nor shall the Property Trustee be liable for the
default or misconduct of any other Issuer Trustee, the
Administrators or the Depositor; and
(vii) no provision of this Trust Agreement 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 the Property Trustee 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 Trust
Agreement or adequate indemnity against such risk or liability
is not reasonably assured to it.
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(e) The Administrators shall not be responsible for monitoring
the compliance by the Issuer Trustee or the Depositor with their
respective duties under this Trust Agreement, nor shall either
Administrator be liable for the default or misconduct of any other
Administrator, the Issuer Trustees or the Depositor.
SECTION 8.2. Certain Notices.
Within five Business Days after the occurrence of any Event of
Default actually known to a Responsible Officer of the Property
Trustee, the Property Trustee shall transmit, in the manner and to
the extent provided in Section 10.8, notice of such Event of Default
to the Holders and the Administrators, unless such Event of Default
shall have been cured or waived.
Within five Business Days after the receipt of notice of the
Depositor's exercise of its right to defer the payment of interest on
the Junior Subordinated Debentures pursuant to the Indenture, the
Property Trustee shall transmit, in the manner and to the extent
provided in Section 10.8, notice of such exercise to the Holders and
the Administrators, unless such exercise shall have been revoked.
SECTION 8.3. Certain Rights of Property Trustee.
Subject to the provisions of Section 8.1:
(a) the Property Trustee may rely and shall be fully protected
in acting or refraining from acting in good faith upon any
resolution, Opinion of Counsel, certificate, written representation
of a Holder or transferee, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice, request,
consent, order, appraisal, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) any direction or act of the Depositor contemplated by
this Trust Agreement shall be sufficiently evidenced by an
Officers' Certificate;
(c) 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 re-recording, refiling or reregistration
thereof;
(d) the Property Trustee may consult with counsel of its
own choosing (which counsel may be counsel to the Depositor or
any of its Affiliates, and may include any of its employees) and
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the advice of such counsel shall be full and complete authorization
and protection in respect of any action taken suffered or omitted by
it hereunder in good faith and in reliance thereon and in accordance
with such advice, such counsel may be counsel to the Depositor or any
of its Affiliates, and may include any of its employees; the Property
Trustee shall have the right at any time to seek instructions
concerning the administration of this Trust Agreement from any court
of competent jurisdiction;
(e) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Trust
Agreement at the request or direction of any of the Holders pursuant
to this Trust Agreement, unless such Holders shall have offered to
the Property Trustee security or indemnity satisfactory to it against
the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction; provided that, nothing
contained in this Section 8.3(f) shall be taken to relieve the
Property Trustee, upon the occurrence of an Event of Default, of its
obligation to exercise the rights and powers vested in it by this
Trust Agreement;
(f) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond, debenture, note or other evidence of
indebtedness or other paper or document, unless requested in writing
to do so by one or more Holders, but the Property Trustee may make
such further inquiry or investigation into such facts or matters as
it may see fit;
(g) the Property Trustee may execute any of the trusts or
powers hereunder or perform any of its duties hereunder either
directly or by or through its agents or attorneys, provided that 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;
(h) whenever in the administration of this Trust Agreement the
Property Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder, the Property Trustee (i) may request instructions from the
Holders (which instructions may only be given by the Holders of the
same proportion in Liquidation Amount of the Trust Securities as
would be entitled to direct the Property Trustee under the terms of
the Trust Securities in respect of such remedy, right or action),
(ii) may refrain from enforcing such remedy or right or taking such
other action until such instructions are received, and (iii) shall be
fully protected in acting in accordance with such instructions; and
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(i) except as otherwise expressly provided by this Trust
Agreement, the Property Trustee shall not be under any obligation to
take any action that is discretionary under the provisions of this
Trust Agreement.
No provision of this Trust Agreement shall be deemed to impose
any duty or obligation on any Issuer Trustee or Administrator 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 any
Issuer Trustee or Administrator shall be construed to be a duty.
SECTION 8.4. Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Trust Securities
Certificates shall be taken as the statements of the Issuer Trust,
and the Issuer Trustees and the Administrators do not assume any
responsibility for their correctness. The Issuer Trustees and the
Administrators shall not be accountable for the use or application by
the Depositor of the proceeds of the Junior Subordinated Debentures.
SECTION 8.5. May Hold Securities.
Except as provided in the definition of the term "Outstanding"
in Article I, the Administrators, any Issuer Trustee or any other
agent of any Issuer Trustee or the Issuer Trust, in its individual or
any other capacity, may become the owner or pledgee of Trust
Securities and, subject to Sections 8.8 and 8.13, may otherwise deal
with the Issuer Trust with the same rights it would have if it were
not an Administrator, Issuer Trustee or such other agent.
SECTION 8.6. Compensation; Indemnity; Fees.
The Depositor, as borrower, agrees:
(a) to pay to the Issuer Trustees from time to time reasonable
compensation for all services rendered by them hereunder (which
compensation shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust);
(b) to reimburse the Issuer Trustees upon request for all
reasonable expenses, disbursements and advances incurred or made
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by the Issuer Trustees in accordance with any provision of this Trust
Agreement (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to their negligence or
willful misconduct; and
(c) to the fullest extent permitted by applicable law, to
indemnify and hold harmless (i) each Issuer Trustee, (ii) each
Administrator, (iii) any Affiliate of any Issuer Trustee, (iv) any
officer, director, shareholder, employee, representative or agent of
any Issuer Trustee, and (v) any employee or agent of the Issuer
Trust, (referred to herein as an "Indemnified Person") from and
against any loss, damage, liability, tax, penalty, expense or claim
of any kind or nature whatsoever incurred by such Indemnified Person
arising out of or in connection with the creation, operation or
dissolution of the Issuer Trust or any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the
Issuer Trust and in a manner such Indemnified Person reasonably
believed to be within the scope of authority conferred on such
Indemnified Person by this Trust Agreement, except that no
Indemnified Person shall be entitled to be indemnified in respect of
any loss, damage or claim incurred by such Indemnified Person by
reason of negligence or willful misconduct with respect to such acts
or omissions.
The provisions of this Section 8.6 shall survive the
termination of this Trust Agreement.
No Issuer Trustee may claim any lien or charge on any Trust
Property as a result of any amount due pursuant to this Section 8.6.
The Depositor, any Administrator and any Issuer 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 business of the Issuer Trust, and the Issuer Trust
and the Holders of Trust Securities shall have no rights by virtue of
this Trust Agreement 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 business of the Issuer Trust,
shall not be deemed wrongful or improper. Neither the Depositor, any
Administrator, nor any Issuer Trustee shall be obligated to present
any particular investment or other opportunity to the Issuer Trust
even if such opportunity is of a character that, if presented to the
Issuer Trust, could be taken by the Issuer Trust, and the Depositor,
any Administrator or any Issuer 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 Issuer Trustee may engage
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or be interested in any financial or other transaction with the
Depositor or any Affiliate of the Depositor, or may act as depository
for, trustee or agent for, or act on any committee or body of holders
of, securities or other obligations of the Depositor or its
Affiliates.
SECTION 8.7. Corporate Property Trustee Required;
Eligibility of Trustees and Administrators.
(a) There shall at all times be a Property Trustee hereunder
with respect to the Trust Securities. The Property Trustee shall be a
Person that is a national or state chartered bank and eligible
pursuant to the Trust Indenture Act to act as such and has a combined
capital and surplus of at least $50,000,000. If any such Person
publishes reports of condition at least annually, pursuant to law or
to the requirements of its supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of
such Person shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at
any time the Property Trustee with respect to the Trust Securities
shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the
effect hereinafter specified in this Article. At the time of
appointment, the Property Trustee must have securities rated in one
of the three highest rating categories by a nationally recognized
statistical rating organization.
(b) There shall at all times be one or more Administrators
hereunder. Each Administrator shall be either a natural person who is
at least 21 years of age or a legal entity that shall act through one
or more persons authorized to bind that entity. An employee, officer
or Affiliate of the Depositor may serve as an Administrator.
(c) There shall at all times be a Delaware Trustee. The
Delaware Trustee shall either be (i) a natural person who is at least
21 years of age and a resident of the State of Delaware or (ii) a
legal entity with its principal place of business in the State of
Delaware and that otherwise meets the requirements of applicable
Delaware law that shall act through one or more persons authorized to
bind such entity.
SECTION 8.8. Conflicting Interests.
(a) If the Property Trustee has or shall acquire a conflicting
interest within the meaning of the Trust Indenture Act, the Property
Trustee shall either eliminate such interest or resign, to the extent
and in the manner provided by, and
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subject to the provisions of, the Trust Indenture Act and this
Trust Agreement.
(b) The Guarantee Agreement and the Indenture shall be deemed
to be sufficiently described in this Trust Agreement for the purposes
of clause (i) of the first proviso contained in Section 310(b) of the
Trust Indenture Act.
SECTION 8.9. Co-Trustees and Separate Trustee.
Unless an Event of Default shall have occurred and be
continuing, at any time or times, for the purpose of meeting the
legal requirements of the Trust Indenture Act or of any jurisdiction
in which any part of the Trust Property may at the time be located,
the Property Trustee shall have power to appoint, and upon the
written request of the Property Trustee, the Depositor and the
Administrators shall for such purpose join with the Property Trustee
in the execution, delivery, and performance of all instruments and
agreements necessary or proper to appoint, one or more Persons
approved by the Property Trustee either to act as co-trustee, jointly
with the Property Trustee, of all or any part of such Trust Property,
or to the extent required by law to act as separate trustee of any
such property, in either case with such powers as may be provided in
the instrument of appointment, and to vest in such Person or Persons
in the capacity aforesaid, any property, title, right or power deemed
necessary or desirable, subject to the other provisions of this
Section. Any co-trustee or separate trustee appointed pursuant to
this Section shall either be (i) a natural person who is at least 21
years of age and a resident of the United States or (ii) a legal
entity with its principal place of business in the United States that
shall act through one or more persons authorized to bind such entity.
Should any written instrument from the Depositor be required by
any co-trustee or separate trustee so appointed for more fully
confirming to such co-trustee or separate trustee such property,
title, right, or power, any and all such instruments shall, on
request, be executed, acknowledged and delivered by the Depositor.
Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject to
the following terms, namely:
(a) The Trust Securities shall be executed by one or more
Administrators, and the Trust Securities shall be executed and
delivered and all rights, powers, duties, and obligations hereunder
in respect of the custody of securities, cash and other personal
property held by, or required to be deposited or pledged with, the
Property Trustees specified hereunder, shall
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be exercised, solely by the Property Trustee and not by such
co-trustee or separate trustee.
(b) The rights, powers, duties, and obligations hereby
conferred or imposed upon the Property Trustee in respect of any
property covered by such appointment shall be conferred or imposed
upon and exercised or performed by the Property Trustee and such
co-trustee or separate trustee jointly, as shall be provided in the
instrument appointing such co-trustee or separate trustee, except to
the extent that under any law of any jurisdiction in which any
particular act is to be performed, the Property Trustee shall be
incompetent or unqualified to perform such act, in which event such
rights, powers, duties and obligations shall be exercised and
performed by such co-trustee or separate trustee.
(c) The Property Trustee at any time, by an instrument in
writing executed by it, with the written concurrence of the
Depositor, may accept the resignation of or remove any co-trustee or
separate trustee appointed under this Section, and, in case a
Debenture Event of Default has occurred and is continuing, the
Property Trustee shall have power to accept the resignation of, or
remove, any such co-trustee or separate trustee without the
concurrence of the Depositor. Upon the written request of the
Property Trustee, the Depositor shall join with the Property Trustee
in the execution, delivery and performance of all instruments and
agreements necessary or proper to effectuate such resignation or
removal. A successor to any co-trustee or separate trustee so
resigned or removed may be appointed in the manner provided in this
Section.
(d) No co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the Property
Trustee or any other trustee hereunder.
(e) The Property Trustee shall not be liable by reason of
any act of a co-trustee or separate trustee.
(f) Any Act of Holders delivered to the Property Trustee shall
be deemed to have been delivered to each such co-trustee and separate
trustee.
SECTION 8.10. Resignation and Removal; Appointment of
Successor.
No resignation or removal of any Issuer Trustee (the "Relevant
Trustee") and no appointment of a successor Trustee pursuant to this
Article shall become effective until the acceptance of appointment by
the successor Trustee in accordance with the applicable requirements
of Section 8.11.
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Subject to the immediately preceding paragraph, a Relevant
Trustee may resign at any time by giving written notice thereof to
the Holders. The Relevant Trustee shall appoint a successor by
requesting from at least three Persons meeting the eligibility
requirements its expenses and charges to serve as the Relevant
Trustee on a form provided by the Administrators, and selecting the
Person who agrees to the lowest expenses and charges. If the
instrument of acceptance by the successor Trustee required by Section
8.11 shall not have been delivered to the Relevant Trustee within 60
days after the giving of such notice of resignation, the Relevant
Trustee may petition, at the expense of the Issuer Trust, any court
of the State of Delaware for the appointment of a successor Relevant
Trustee.
The Property Trustee or the Delaware Trustee may be removed at
any time by Act of the Holders of at least a Majority in Liquidation
Amount of the Capital Securities, delivered to the Relevant Trustee
(in its individual capacity and on behalf of the Issuer Trust) (i)
for cause (including upon the occurrence of an Event of Default
described in subparagraph (f) of the definition thereof with respect
to the Relevant Trustee), or (ii) if a Debenture Event of Default
shall have occurred and be continuing at any time.
If any Issuer Trustee shall resign, it shall appoint its
successor. If a resigning Issuer Trustee shall fail to appoint a
successor, or if an Issuer Trustee shall be removed or become
incapable of acting as Issuer Trustee, or if any vacancy shall occur
in the office of any Issuer Trustee for any cause, the Holders of the
Capital Securities, by Act of the Holders of record of not less than
25% in aggregate Liquidation Amount of the Capital Securities then
Outstanding delivered to such Relevant Trustee, shall promptly
appoint a successor Relevant Trustee or Trustees, and such successor
Issuer Trustee shall comply with the applicable requirements of
Section 8.11. If no successor Relevant Trustee shall have been so
appointed by the Holders of the Capital Securities and accepted
appointment in the manner required by Section 8.11, any Holder, on
behalf of himself and all others similarly situated, or any other
Issuer Trustee, may petition any court of competent jurisdiction for
the appointment of a successor Relevant Trustee.
The Property Trustee shall give notice of each resignation and
each removal of an Issuer Trustee and each appointment of a successor
Trustee to all Holders in the manner provided in Section 10.8 and
shall give notice to the Depositor and to the Administrators. Each
notice shall include the name of the successor Relevant Trustee and
the address of its Corporate Trust Office if it is the Property
Trustee.
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Notwithstanding the foregoing or any other provision of this
Trust Agreement, in the event any Delaware Trustee who is a natural
person dies or becomes, in the opinion of the Holders of the Common
Securities, incompetent or incapacitated, the vacancy created by such
death, incompetence or incapacity may be filled by the Property
Trustee following the procedures regarding expenses and charges set
forth above (with the successor in each case being a Person who
satisfies the eligibility requirement for Administrators or Delaware
Trustee, as the case may be, set forth in Section 8.7).
SECTION 8.11. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Relevant
Trustee, the retiring Relevant Trustee and each such successor
Relevant Trustee with respect to the Trust Securities shall execute,
acknowledge and deliver an amendment hereto wherein each successor
Relevant Trustee shall accept such appointment and which (a) shall
contain such provisions as shall be necessary or desirable to
transfer and confirm to, and to vest in, each successor Relevant
Trustee all the rights, powers, trusts and duties of the retiring
Relevant Trustee with respect to the Trust Securities and the Issuer
Trust, and (b) shall add to or change any of the provisions of this
Trust Agreement as shall be necessary to provide for or facilitate
the administration of the Issuer Trust by more than one Relevant
Trustee, it being understood that nothing herein or in such amendment
shall constitute such Relevant co-trustees and upon the execution and
delivery of such amendment the resignation or removal of the retiring
Relevant Trustee shall become effective to the extent provided
therein and each such successor Relevant Trustee, without any further
act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Relevant Trustee; but, on
request of the Issuer Trust or any successor Relevant Trustee such
retiring Relevant Trustee shall duly assign, transfer and deliver to
such successor Relevant Trustee all Trust Property, all proceeds
thereof and money held by such retiring Relevant Trustee hereunder
with respect to the Trust Securities and the Trust.
Upon request of any such successor Relevant Trustee, the Issuer
Trust shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Relevant
Trustee all such rights, powers and trusts referred to in the first
or second preceding paragraph, as the case may be.
No successor Relevant Trustee shall accept its appointment
unless at the time of such acceptance such successor Relevant Trustee
shall be qualified and eligible under this Article.
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SECTION 8.12. Merger, Conversion, Consolidation or
Succession to Business.
Any Person into which the Property Trustee or the Delaware
Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which such Relevant Trustee shall be a party, or any
Person succeeding to all or substantially all the corporate trust
business of such Relevant Trustee, shall be the successor of such
Relevant Trustee hereunder, provided that such Person 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.
SECTION 8.13. Preferential Collection of Claims Against
Depositor or Issuer Trust.
If and when the Property Trustee shall be or become a creditor
of the Depositor (or any other obligor upon the Trust Securities),
the Property Trustee shall be subject to the provisions of the Trust
Indenture Act regarding the collection of claims against the
Depositor (or any such other obligor) as is required by the Trust
Indenture Act.
SECTION 8.14. Trustee May File Proofs of Claim.
In case of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or
other similar judicial proceeding relative to the Issuer Trust or any
other obligor upon the Trust Securities or the property of the Issuer
Trust or of such other obligor, the Property Trustee (irrespective of
whether any Distributions on the Trust Securities shall then be due
and payable and irrespective of whether the Property Trustee shall
have made any demand on the Issuer 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 owning and unpaid in respect of the Trust 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 agents and
counsel) and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the
same;
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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 Trust 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.
SECTION 8.15. Reports by Property Trustee.
(a) Not later than January 31 of each year commencing with
January 31, 1998, the Property Trustee shall transmit to all Holders
in accordance with Section 10.8, and to the Depositor, a brief report
dated as of the immediately preceding November 30 with respect to:
(i) its eligibility under Section 8.7 or, in lieu thereof,
if to the best of its knowledge it has continued to be eligible
under said Section, a written statement to such effect; and
(ii) any change in the property and funds in its
possession as Property Trustee since the date of its last
report and any action taken by the Property Trustee in the
performance of its duties hereunder which it has not previously
reported and which in its opinion materially affects the Trust
Securities.
(b) In addition the Property Trustee shall transmit to Holders
such reports concerning the Property Trustee and its actions under
this Trust Agreement as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant
thereto as set forth in Section 10.10 of this Trust Agreement.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Property Trustee with the
Depositor.
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SECTION 8.16. Reports to the Property Trustee.
The Depositor and the Administrators on behalf of the Issuer
Trust shall provide to the Property Trustee such documents, reports
and information as required by Section 314 of the Trust Indenture Act
and the compliance certificate required by Section 314(a) of the
Trust Indenture Act in the form, in the manner and at the times
required by Section 314 of the Trust Indenture Act, as set forth in
Section 10.10 of this Trust Agreement. The Depositor and the
Administrators shall annually file with the Property Trustee a
certificate specifying whether such Person is in compliance with all
the terms and covenants applicable to such Person hereunder.
SECTION 8.17. Evidence of Compliance with Conditions
Precedent.
Each of the Depositor and the Administrators on behalf of the
Issuer Trust shall provide to the Property Trustee such evidence of
compliance with any conditions precedent, if any, provided for in
this Trust Agreement that relate to any of the matters set forth in
Section 314(c) of the Trust Indenture Act as set forth in Section
10.10 of this Trust Agreement. Any certificate or opinion required to
be given by an officer pursuant to Section 314(c)(1) of the Trust
Indenture Act shall be given in the form of an Officers' Certificate.
SECTION 8.18. Number of Issuer Trustees.
(a) The number of Issuer Trustees shall be two. The Property
Trustee and the Delaware Trustee may be the same Person, in which
case the number of Issuer Trustees may be one.
(b) If an Issuer Trustee ceases to hold office for any reason,
a vacancy shall occur. The vacancy shall be filled with an Issuer
Trustee appointed in accordance with Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of an Issuer Trustee
shall not operate to annul the Issuer Trust.
SECTION 8.19. Delegation of Power.
(a) Any Administrator may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of
21 his or her power for the purpose of executing any documents
contemplated in Section 2.7(a) or making any governmental filing; and
(b) The Administrators shall have power to delegate from time
to time to such of their number the doing of such things
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and the execution of such instruments either in the name of the
Issuer Trust or the names of the Administrators or otherwise as the
Administrators may deem expedient, to the extent such delegation is
not prohibited by applicable law or contrary to the provisions of
this Trust Agreement.
SECTION 8.20. Appointment of Administrators.
(a) The Administrators shall be appointed by the Holders of a
Majority in Liquidation Amount of the Common Securities and may be
removed by the Holders of a Majority in Liquidation Amount of the
Common Securities or may resign at any time. Upon any resignation or
removal, the Depositor shall appoint a successor Administrator. Each
Administrator shall execute this Trust Agreement thereby agreeing to
comply with, and be legally bound by, all of the terms, conditions
and provisions of this Trust Agreement. If at any time there is no
Administrator, the Property Trustee or any Holder who has been a
Holder of Trust Securities for at least six months may petition any
court of competent jurisdiction for the appointment of one or more
Administrators.
(b) Whenever a vacancy in the number of Administrators shall
occur, until such vacancy is filled by the appointment of an
Administrator in accordance with this Section 8.20, the
Administrators in office, regardless of their number (and
notwithstanding any other provision of this Agreement), shall have
all the powers granted to the Administrators and shall discharge all
the duties imposed upon the Administrators by this Trust Agreement.
(c) Notwithstanding the foregoing, or any other provision of
this Trust Agreement, in the event any Administrator or a Delaware
Trustee who is a natural person dies or becomes, in the opinion of
the Holders of a Majority in Liquidation Amount of the Common
Securities, incompetent, or incapacitated, the vacancy created by
such death, incompetence or incapacity may be filled by the remaining
Administrators, if there were at least two of them prior to such
vacancy, and by the Depositor, if there were not two such
Administrators immediately prior to such vacancy (with the successor
in each case being a Person who satisfies the eligibility requirement
for Administrators or Delaware Trustee, as the case may be, set forth
in Section 8.7).
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ARTICLE IX
DISSOLUTION, LIQUIDATION AND MERGER
SECTION 9.1. Dissolution Upon Expiration Date.
Unless earlier dissolved, the Issuer Trust shall automatically
dissolve on June 1, 2028 (the "Expiration Date"), and thereafter the
Trust Property shall be distributed in accordance with Section 9.4.
SECTION 9.2. Early Termination.
The first to occur of any of the following events is an "Early
Termination Event":
(a) the occurrence of the appointment of a receiver or other
similar official in any liquidation, insolvency or similar proceeding
with respect to the Depositor or all or substantially all of its
property, or a court or other governmental agency shall enter a
decree or order and such decree or order shall remain unstayed and
undischarged for a period of 60 days, unless the Depositor shall
transfer the Common Securities as provided by Section 5.11, in which
case this provision shall refer instead to any such successor Holder
of the Common Securities;
(b) the written direction to the Property Trustee from the
Holder of the Common Securities at any time to dissolve the Issuer
Trust and to distribute the Junior Subordinated Debentures to Holders
in exchange for the Capital Securities (which direction, subject to
Section 9.4(a), is optional and wholly within the discretion of the
Holders of the Common Securities);
(c) the redemption of all of the Capital Securities in
connection with the redemption of all the Junior Subordinated
Debentures; and
(d) the entry of an order for dissolution of the Issuer
Trust by a court of competent jurisdiction.
SECTION 9.3. Termination.
As soon as is practicable after the occurrence of an event
referred to in Section 9.1 or 9.2, and upon the completion of the
winding up and liquidation of the Issuer Trust, the Administrators
and the Issuer Trustees (each of whom is hereby authorized to take
such action) shall file a certificate of cancellation with the
Secretary of State of the State of Delaware terminating the Trust
and, upon such filing, the respective obligations and
responsibilities of the Issuer
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Trustees, the Administrators and the Issuer Trust created and
continued hereby shall terminate.
SECTION 9.4. Liquidation.
(a) If an Early Termination Event specified in clause (a), (b)
or (d) of Section 9.2 occurs or upon the Expiration Date, the Issuer
Trust shall be wound up and liquidated by the Property Trustee as
expeditiously as the Property Trustee determines to be possible by
distributing, after paying or making reasonable provision to pay all
claims and obligations of the Issuer Trust in accordance with Section
3808(e) of the Delaware Business Trust Act, to each Holder a Like
Amount of Junior Subordinated Debentures, subject to Section 9.4(d).
Notice of liquidation shall be given by the Property Trustee by
first-class mail, postage prepaid, mailed not later than 15 nor more
than 45 days prior to the Liquidation Date to each Holder of Trust
Securities at such Holder's address appearing in the Securities
Register. All notices of liquidation shall:
(i) state the Liquidation Date;
(ii) state that, from and after the Liquidation Date, the
Trust Securities will no longer be deemed to be Outstanding and any
Trust Securities Certificates not surrendered for exchange will be
deemed to represent a Like Amount of Junior Subordinated Debentures;
and
(iii) provide such information with respect to the
mechanics by which Holders may exchange Trust Securities Certificates
for Junior Subordinated Debentures, or if Section 9.4(d) applies
receive a Liquidation Distribution, as the Administrators or the
Property Trustee shall deem appropriate.
(b) Except where Section 9.2(c) or 9.4(d) applies, in order to
effect the liquidation of the Issuer Trust and distribution of the
Junior Subordinated Debentures to Holders, the Property Trustee shall
establish a record date for such distribution (which shall be not
more than 30 days prior to the Liquidation Date) and, either itself
acting as exchange agent or through the appointment of a separate
exchange agent, shall establish such procedures as it shall deem
appropriate to effect the distribution of Junior Subordinated
Debentures in exchange for the Outstanding Trust Securities
Certificates.
(c) Except where Section 9.2(c) or 9.4(d) applies, after the
Liquidation Date, (i) the Trust Securities will no longer be deemed
to be Outstanding, (ii) the Clearing Agency for the Capital
Securities or its nominee, as the registered holder of the Global
Capital Securities Certificate, shall receive a registered global
certificate or certificates representing the
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Junior Subordinated Debentures to be delivered upon such distribution
with respect to Capital Securities held by the Clearing Agency or its
nominee, and, (iii) any Trust Securities Certificates not held by the
Clearing Agency for the Capital Securities or its nominee as
specified in clause (ii) above will be deemed to represent Junior
Subordinated Debentures having a principal amount equal to the stated
Liquidation Amount of the Trust Securities represented thereby and
bearing accrued and unpaid interest in an amount equal to the
accumulated and unpaid Distributions on such Trust Securities until
such certificates are presented to the Securities Registrar for
transfer or reissuance.
(d) If, notwithstanding the other provisions of this Section
9.4, whether because of an order for dissolution entered by a court
of competent jurisdiction or otherwise, distribution of the Junior
Subordinated Debentures is not practical, or if any Early Termination
Event specified in clause (c) of Section 9.2 occurs, the Issuer Trust
shall be dissolved and wound up and the Trust Property shall be
liquidated by the Property Trustee in such manner as the Property
Trustee determines. In such event, on the date of the dissolution of
the Issuer Trust, Holders will be entitled to receive out of the
assets of the Issuer Trust available for distribution to Holders,
after paying or making reasonable provision to pay all claims and
obligations of the Issuer Trust in accordance with Section 3808(e) of
the Delaware Business Trust Act, an amount equal to the aggregate of
Liquidation Amount per Trust Security plus accumulated and unpaid
Distributions thereon to the date of payment (such amount being the
"Liquidation Distribution"). If, upon any such dissolution, the
Liquidation Distribution can be paid only in part because the Issuer
Trust has insufficient assets available to pay in full the aggregate
Liquidation Distribution, then, subject to the next succeeding
sentence, the amounts payable by the Issuer Trust on the Trust
Securities shall be paid on a pro rata basis (based upon Liquidation
Amounts). The Holders of the Common Securities will be entitled to
receive Liquidation Distributions upon any such dissolution pro rata
(determined as aforesaid) with Holders of Capital Securities, except
that, if a Debenture Event of Default has occurred and is continuing,
the Capital Securities shall have a priority over the Common
Securities as provided in Section 4.3.
SECTION 9.5. Mergers, Consolidations, Amalgamations or
Replacements of the Issuer Trust.
The Issuer 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 entity,
except pursuant to this Section 9.5. At the request of the Holders of
the Common Securities, and with the consent of
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the Holders of at least a Majority in Liquidation Amount of the
Capital Securities, the Issuer Trust may merge with or into,
consolidate, amalgamate, or be replaced by or convey, transfer or
lease its properties and assets substantially as an entirety to a
trust organized as such under the laws of any State; provided,
however, that (i) such successor entity either (a) expressly assumes
all of the obligations of the Issuer Trust with respect to the
Capital 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 have the same priority as the Capital Securities with
respect to distributions and payments upon liquidation, redemption
and otherwise, (ii) a trustee of such successor entity possessing the
same powers and duties as the Property Trustee is appointed to hold
the Junior Subordinated Debentures, (iii) 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, (iv) 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, (v) such successor entity has a purpose substantially
identical to that of the Issuer Trust, (vi) prior to such merger,
consolidation, amalgamation, replacement, conveyance, transfer or
lease, the Issuer Trustee has received an Opinion of Counsel from
independent counsel 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, and (b)
following such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease, neither the Issuer Trust nor such
successor entity will be required to register as an "investment
company" under the Investment Company Act and (vii) the Depositor or
any permitted transferee to whom it has transferred the Common
Securities hereunder own all of the Common Securities of such
successor entity and guarantees the obligations of such successor
entity under the Successor Securities at least to the extent provided
by the Guarantee Agreement. Notwithstanding the foregoing, the Issuer
Trust shall not, except with the consent of holders of 100% in
Liquidation Amount of the Capital Securities, consolidate,
amalgamate, merge with or into, or be replaced by or convey, transfer
or lease its properties and assets substantially as an entirety to
any other entity or permit any other entity to consolidate,
amalgamate, merge with or into, or replace it if such consolidation,
amalgamation, merger, replacement, conveyance, transfer or lease
would cause the
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Issuer Trust or the successor entity to be taxable as a corporation
for United States Federal income tax purposes.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. Limitation of Rights of Holders.
Except as set forth in Section 9.2, the death or incapacity of
any person having an interest, beneficial or otherwise, in Trust
Securities shall not operate to terminate this Trust Agreement, nor
entitle the legal representatives or heirs of such person or any
Holder for such person, to claim an accounting, take any action or
bring any proceeding in any court for a partition or winding-up of
the arrangements contemplated hereby, nor otherwise affect the
rights, obligations and liabilities of the parties hereto or any of
them. Any merger or similar agreement shall be executed by the
Administrators on behalf of the Trust.
SECTION 10.2. Amendment.
(a) This Trust Agreement may be amended from time to time by
the Property Trustee and the Holders of a Majority in Liquidation
Amount of the Common Securities, without the consent of any Holder of
the Capital Securities (i) to cure any ambiguity, correct or
supplement any provision herein which may be inconsistent with any
other provision herein, or to make any other provisions with respect
to matters or questions arising under this Trust Agreement, provided,
however, that such amendment shall not adversely affect in any
material respect the interests of any Holder or (ii) to modify,
eliminate or add to any provisions of this Trust Agreement to such
extent as shall be necessary to ensure that the Issuer Trust will not
be taxable as a corporation for United States Federal income tax
purposes at any time that any Trust Securities are Outstanding or to
ensure that the Issuer Trust will not be required to register as an
investment company under the Investment Company Act.
(b) Except as provided in Section 10.2(c) hereof, any provision
of this Trust Agreement may be amended by the Property Trustee and
the Holders of a Majority in Liquidation Amount of the Common
Securities with (i) the consent of Holders of at least a Majority in
Liquidation Amount of the Capital Securities and (ii) receipt by the
Issuer Trustees of an Opinion of Counsel to the effect that such
amendment or the exercise of any power granted to the Issuer Trustees
in accordance with such amendment will not cause the Issuer Trust to
be taxable as a corporation for United States federal income tax
purposes or affect the
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Issuer Trust's exemption from status of an "investment company" under
the Investment Company Act.
(c) In addition to and notwithstanding any other provision in
this Trust Agreement, without the consent of each affected Holder
(such consent being obtained in accordance with Section 6.3 or 6.6
hereof), this Trust Agreement may not be amended to (i) change the
amount or timing of any Distribution on the Trust Securities or
otherwise adversely affect the amount of any Distribution required to
be made in respect of the Trust Securities as of a specified date or
(ii) restrict the right of a Holder to institute suit for the
enforcement of any such payment on or after such date.
(d) Notwithstanding any other provisions of this Trust
Agreement, no Issuer Trustee shall enter into or consent to any
amendment to this Trust Agreement which would cause the Issuer Trust
to fail or cease to qualify for the exemption from status as an
"investment company" under the Investment Company Act or be taxable
as a corporation for United States Federal income tax purposes.
(e) Notwithstanding anything in this Trust Agreement to the
contrary, without the consent of the Depositor and the
Administrators, this Trust Agreement may not be amended in a manner
which imposes any additional obligation on the Depositor or the
Administrators.
(f) In the event that any amendment to this Trust Agreement is
made, the Administrators or the Property Trustee shall promptly
provide to the Depositor a copy of such amendment.
(g) Neither the Property Trustee nor the Delaware Trustee shall
be required to enter into any amendment to this Trust Agreement which
affects its own rights, duties or immunities under this Trust
Agreement. The Property Trustee shall be entitled to receive an
Opinion of Counsel and an Officers' Certificate stating that any
amendment to this Trust Agreement is in compliance with this Trust
Agreement.
(h) Any amendments to this Trust Agreement shall become
effective when notice of such amendment is given to the holders of
the Trust Securities.
SECTION 10.3. Separability.
In case any provision in this Trust Agreement or in the Trust
Securities Certificates shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the
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remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 10.4. Governing Law.
THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF
THE HOLDERS, THE ISSUER TRUST, THE DEPOSITOR, THE ISSUER TRUSTEES AND
THE ADMINISTRATORS SHALL GOVERNED BY AND INTERPRETED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF DELAWARE AND ALL RIGHTS AND REMEDIES
SHALL BE GOVERNED BY SUCH LAWS WITHOUT REGARD TO THE PRINCIPLES OF
CONFLICT OF LAWS OF THE STATE OF DELAWARE OR ANY OTHER JURISDICTION
THAT WOULD CALL FOR THE APPLICATION OF THE LAW OF ANY JURISDICTION
OTHER THAN THE STATE OF DELAWARE; PROVIDED, HOWEVER, THAT THERE SHALL
NOT BE APPLICABLE TO THE HOLDERS, THE ISSUER TRUST, THE DEPOSITOR,
THE ISSUER TRUSTEES, THE ADMINISTRATORS OR THIS TRUST AGREEMENT ANY
PROVISION OF THE LAWS (STATUTORY OR COMMON) OF THE STATE OF DELAWARE
PERTAINING TO TRUSTS THAT RELATE TO OR REGULATE, IN A MANNER
INCONSISTENT WITH THE TERMS HEREOF (A) THE FILING WITH ANY COURT OR
GOVERNMENTAL BODY OR AGENCY OF TRUSTEE ACCOUNTS OR SCHEDULES OF
TRUSTEE FEES AND CHARGES, (B) AFFIRMATIVE REQUIREMENTS TO POST BONDS
FOR TRUSTEES, OFFICERS, AGENTS OR EMPLOYEES OF A TRUST, (C) THE
NECESSITY FOR OBTAINING COURT OR OTHER GOVERNMENTAL APPROVAL
CONCERNING THE ACQUISITION, HOLDING OR DISPOSITION OF REAL OR
PERSONAL PROPERTY, (D) FEES OR OTHER SUMS PAYABLE TO TRUSTEES,
OFFICERS, AGENTS OR EMPLOYEES OF A TRUST, (E) THE ALLOCATION OF
RECEIPTS AND EXPENDITURES TO INCOME OR PRINCIPAL, (F) RESTRICTIONS OR
LIMITATIONS ON THE PERMISSIBLE NATURE, AMOUNT OR CONCENTRATION OF
TRUST INVESTMENTS OR REQUIREMENTS RELATING TO THE TITLING, STORAGE OR
OTHER MANNER OF HOLDING OR INVESTING TRUST ASSETS OR (G) THE
ESTABLISHMENT OF FIDUCIARY OR OTHER STANDARDS OF RESPONSIBILITY OR
LIMITATIONS ON THE ACTS OR POWERS OF TRUSTEES THAT ARE INCONSISTENT
WITH THE LIMITATIONS OR LIABILITIES OR AUTHORITIES AND POWERS OF THE
ISSUER TRUSTEES OR THE ADMINISTRATOR AS SET FORTH OR REFERENCED IN
THIS TRUST AGREEMENT. SECTION 3540 OF TITLE 12 OF THE DELAWARE CODE
SHALL NOT APPLY TO THE ISSUER TRUST.
SECTION 10.5. Payments Due on Non-Business Day.
If the date fixed for any payment on any Trust Security shall
be a day that is not a Business Day, then such payment need not be
made on such date but may be made on the next succeeding day that is
a Business Day (except as otherwise provided in Sections 4.2(d)),
with the same force and effect as though made on the date fixed for
such payment, and no Distributions shall accumulate on such unpaid
amount for the period after such date.
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SECTION 10.6. Successors.
This Trust Agreement shall be binding upon and shall inure to
the benefit of any successor to the Depositor, the Issuer Trust, the
Administrators and any Issuer Trustee, including any successor by
operation of law. Except in connection with a consolidation, merger
or sale involving the Depositor that is permitted under Article VIII
of the Indenture and pursuant to which the assignee agrees in writing
to perform the Depositor's obligations hereunder, the Depositor shall
not assign its obligations hereunder.
SECTION 10.7. Headings.
The Article and Section headings are for convenience only and
shall not affect the construction of this Trust Agreement.
SECTION 10.8. Reports, Notices and Demands.
Any report, notice, demand or other communication that by any
provision of this Trust Agreement is required or permitted to be
given or served to or upon any Holder or the Depositor may be given
or served in writing by deposit thereof, first class postage prepaid,
in the United States mail, hand delivery or facsimile transmission,
in each case, addressed, (a) in the case of a Holder of Capital
Securities, to such Holder as such Holder's name and address may
appear on the Securities Register; and (b) in the case of the Holder
of Common Securities or the Depositor, to First Empire State
Corporation, One M&T Plaza, Buffalo, New York 14240, Attention:
Office of the Secretary, facsimile no.: (716) 842-5376 or to such
other address as may be specified in a written notice by the
Depositor to the Property Trustee. Such notice, demand or other
communication to or upon a Holder shall be deemed to have been
sufficiently given or made, for all purposes, upon hand delivery,
mailing or transmission. Such notice, demand or other communication
to or upon the Depositor shall be deemed to have been sufficiently
given or made only upon actual receipt of the writing by the
Depositor.
Any notice, demand or other communication which by any
provision of this Trust Agreement is required or permitted to be
given or served to or upon the Issuer Trust, the Property Trustee,
the Delaware Trustee, the Administrators, or the Issuer Trust shall
be given in writing addressed (until another address is published by
the Issuer Trust) as follows: (a) with respect to the Property
Trustee to Bankers Trust Company, Four Albany Street, 4th Floor, New
York, NY 10006, Attention: Corporate Trust and Agency Group Corporate
Market Services; (b) with respect to the Delaware Trustee to Bankers
Trust (Delaware), 1001 Jefferson Street, Suite 550, Wilmington,
Delaware 19801,
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Attention: Lisa Wilkins; and (c) with respect to the Administrators,
to them at the address above for notices to the Depositor, marked
"Attention: Office of the Secretary". Such notice, demand or other
communication to or upon the Issuer Trust or the Property Trustee
shall be deemed to have been sufficiently given or made only upon
actual receipt of the writing by the Issuer Trust, the Property
Trustee, or such Administrator.
SECTION 10.9 Agreement Not to Petition.
Each of the Issuer Trustees, the Administrators and the
Depositor agree for the benefit of the Holders that, until at least
one year and one day after the Issuer Trust has been terminated in
accordance with Article IX, they shall not file, or join in the
filing of, a petition against the Issuer Trust under any bankruptcy,
insolvency, reorganization or other similar law (including, without
limitation, the United States Bankruptcy Code) (collectively,
"Bankruptcy Laws") or otherwise join in the commencement of any
proceeding against the Issuer Trust under any Bankruptcy Law. In the
event the Depositor takes action in violation of this Section 10.9,
the Property Trustee agrees, for the benefit of Holders, that at the
expense of the Depositor, it shall file an answer with the bankruptcy
court or otherwise properly contest the filing of such petition by
the Depositor against the Issuer Trust or the commencement of such
action and raise the defense that the Depositor has agreed in writing
not to take such action and should be estopped and precluded
therefrom and such other defenses, if any, as counsel for the Issuer
Trustee or the Issuer Trust may assert. If any Issuer Trustee or
Administrator takes action in violation of this Section 10.9, the
Depositor agrees, for the benefit of the Holders, that at the expense
of the Depositor, it shall file an answer with the bankruptcy court
or otherwise properly contest the filing of such petition by such
Person against the Depositor or the commencement of such action and
raise the defense that such Person has agreed in writing not to take
such action and should be estopped and precluded therefrom and such
other defenses, if any, as counsel for the Issuer Trustee or the
Issuer Trust may assert. The provisions of this Section 10.9 shall
survive the termination of this Trust Agreement.
SECTION 10.10. Trust Indenture Act; Conflict with Trust
Indenture Act.
(a) Trust Indenture Act; Application. (i) This Trust Agreement
is subject to the provisions of the Trust Indenture Act that are
required to be a part of this Trust Agreement and shall, to the
extent applicable, be governed by such provisions; (ii) if and to the
extent that any provision of this Trust Agreement limits, qualifies
or conflicts with the duties imposed
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by ss.ss. 310 to 317, inclusive, of the Trust Indenture Act, such
imposed duties shall control; (iii) for purposes of this Trust
Agreement, the Property Trustee, to the extent permitted by
applicable law and/or the rules and regulations of the Commission,
shall be the only Issuer Trustee which is a trustee for the purposes
of the Trust Indenture Act; and (iv) the application of the Trust
Indenture Act to this Trust Agreement shall not affect the nature of
the Capital Securities and the Common Securities as equity securities
representing undivided beneficial interests in the assets of the
Issuer Trust.
(b) Lists of Holders of Capital Securities. (i) Each of the
Depositor and the Administrators on behalf of the Trust shall provide
the Property Trustee with such information as is required under ss.
312(a) of the Trust Indenture Act at the times and in the manner
provided in ss. 312(a) and (ii) the Property Trustee shall company
with its obligations under ss.ss. 310(b), 311 and 312(b) of the Trust
Indenture Act.
(c) Reports by the Property Trustee. Within 60 days after
November 30 of each year, the Property Trustee shall provide to the
Holders of the Trust Securities such reports as are required by ss.
313 of the Trust Indenture Act, if any, in the form, in the manner
and at the times provided by ss. 313 of the Trust Indenture Act. The
Property Trustee shall also comply with the requirements of ss.
313(d) of the Trust Indenture Act.
(d) Periodic Reports to Property Trustee. Each of the Depositor
and the Administrators on behalf of the Issuer Trust shall provide to
the Property Trustee, the Commission and the Holders of the Trust
Securities, as applicable, such documents, reports and information as
required by ss. 314(a)(1) - (3) (if any) of the Trust Indenture Act
and the compliance certificates required by ss. 314(a)(4) and (c) of
the Trust Indenture Act (provided that any certificate to be provided
pursuant to ss. 314(a)(4) of the Trust Indenture Act shall be
provided within 120 days of the end of each fiscal year of the Issuer
Trust.
(e) Evidence of Compliance with Conditions Precedent. Each of
the Depositor and the Administrators on behalf of the Issuer Trust
shall provide to the Property Trustee such evidence of compliance
with any conditions precedent, if any, provided for in this Trust
Agreement which relate to any of the matters set forth in ss. 314(c)
of the Trust Indenture Act. Any certificate or opinion required to be
given pursuant to ss. 314(c) shall comply with ss. 314(e) of the
Trust Indenture Act.
(f) Disclosure of Information. The disclosure of information as
to the names and addresses of the Holders of Trust Securities in
accordance with ss. 312 of the Trust Indenture Act, regardless of the
source from which such information was
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derived, shall not be deemed to be a violation of any existing law or
any law hereafter enacted which does not specifically refer to ss.
312 of the Trust Indenture Act, nor shall the Property Trustee be
held accountable by reason of mailing any material pursuant to a
request made under ss. 312(b) of the Trust Indenture Act.
SECTION 10.11. Acceptance of Terms of Trust Agreement,
Guarantee and Indenture.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST
THEREIN BY OR ON BEHALF OF A HOLDER OR ANY BENEFICIAL OWNER, WITHOUT
ANY SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE
THE UNCONDITIONAL ACCEPTANCE BY THE HOLDER AND ALL OTHERS HAVING A
BENEFICIAL INTEREST IN SUCH TRUST SECURITY OF ALL THE TERMS AND
PROVISIONS OF THIS TRUST AGREEMENT, THE GUARANTEE AGREEMENT AND THE
INDENTURE, AND THE AGREEMENT TO THE SUBORDINATION PROVISIONS AND
OTHER TERMS OF THE GUARANTEE AGREEMENT AND THE INDENTURE, AND SHALL
CONSTITUTE THE AGREEMENT OF THE ISSUER TRUST, SUCH HOLDER AND SUCH
OTHERS THAT THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT SHALL BE
BINDING,
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OPERATIVE AND EFFECTIVE AS BETWEEN THE ISSUER TRUST AND SUCH HOLDER
AND SUCH OTHERS.
FIRST EMPIRE STATE CORPORATION,
as Depositor
By:
-----------------------------
Name:
Title:
BANKERS TRUST COMPANY,
as Property Trustee, and
not in its individual capacity
By:
-----------------------------
Name:
Title:
BANKERS TRUST (DELAWARE),
as Delaware Trustee, and not
in its individual capacity
By:
-----------------------------
Name:
Title:
Agreed to and Accepted by,
-----------------------------
Name:
Title: Administrator
-----------------------------
Name:
Title: Administrator
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Exhibit A
CERTIFICATE OF TRUST
Exhibit B
FORM OF CERTIFICATE DEPOSITARY AGREEMENT
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Exhibit C
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT TO THE
DEPOSITOR OR AN AFFILIATE OF THE DEPOSITOR
IN COMPLIANCE WITH APPLICABLE LAW AND
SECTION 5.11 OF THE TRUST AGREEMENT
Certificate Number Number of Common Securities
C-__
Certificate Evidencing Common Securities
of
First Empire Capital Trust II
8.277% Common Securities
(liquidation amount $1,000 per Common Security)
First Empire Capital Trust II, a statutory business trust
formed under the laws of the State of Delaware (the "Issuer
Trust"), hereby certifies that First Empire State Corporation (the
"Holder") is the registered owner of _________ (_____) common
securities of the Issuer Trust representing undivided beneficial
interests in the Issuer Trust and has designated the 8.277% Common
Securities (liquidation amount $1,000 per Common Security) (the
"Common Securities"). Except in accordance with Section 5.11 of
the Trust Agreement (as defined below) the Common Securities are
not transferable and any attempted transfer hereof other than in
accordance therewith shall be void. The designations, rights,
privileges, restrictions, preferences and other terms and
provisions of the Common Securities are set forth in, and this
certificate and the Common Securities represented hereby are
issued and shall in all respects be subject to the terms and
provisions of, the Amended and Restated Trust Agreement of the
Issuer Trust, dated as of June 6, 1997, as the same may be amended
from time to time (the "Trust Agreement") among First Empire State
Corporation, as Depositor, Bankers Trust Company, as Property
Trustee, Bankers Trust (Delaware), as Delaware Trustee, and the
Holders of Trust Securities, including the designation of the
terms of the Common Securities as set forth therein. The Issuer
Trust will furnish a copy of the
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Trust Agreement to the Holder without charge upon written request
to the Issuer Trust at its principal place of business or
registered office.
Upon receipt of this certificate, the Holder is bound by
the Trust Agreement and is entitled to the benefits thereunder.
Terms used but not defined herein have the meanings set
forth in the Trust Agreement.
IN WITNESS WHEREOF, one of the Administrators of the Issuer
Trust has executed this certificate this 6th day of June, 1997.
FIRST EMPIRE CAPITAL TRUST II
By:
-----------------------------
Name:
Administrator
COUNTERSIGNED AND REGISTERED:
BANKERS TRUST COMPANY,
as Securities Registrar
By: ________________________
Name:
Authorized Officer
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Exhibit D
[IF THE CAPITAL SECURITIES CERTIFICATE IS TO BE A GLOBAL
CAPITAL SECURITIES CERTIFICATE, INSERT -- This Capital Securities
Certificate is a Global Capital Securities Certificate within the
meaning of the Trust Agreement hereinafter referred to and is
registered in the name of a Depositary or a nominee of a
Depositary. This Capital Security Certificate is exchangeable for
Capital Securities Certificates registered in the name of a person
other than the Depositary or its nominee only in the limited
circumstances described in the Trust Agreement and may not be
transferred except as a whole 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, except in the limited
circumstances described in the Trust Agreement.
Unless this Capital Security Certificate is presented by an
authorized representative of The Depository Trust Company, a New
York Corporation ("DTC"), to First Empire Capital Trust II or its
agent for registration of transfer, exchange or payment, and any
Capital Security Certificate issued is registered in the name of
such nominee as is requested by an authorized representative of
DTC (and any payment is made to such entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO A PERSON IS WRONGFUL
inasmuch as the registered owner hereof, has an interest herein.]
NO EMPLOYEE BENEFIT OR OTHER PLAN OR INDIVIDUAL RETIREMENT
ACCOUNT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") (EACH, A
"PLAN"), NO ENTITY WHOSE UNDERLYING ASSETS INCLUDE "PLAN ASSETS"
BY REASON OF ANY PLAN'S INVESTMENT IN THE ENTITY (A "PLAN ASSET
ENTITY"), AND NO PERSON INVESTING "PLAN ASSETS" OF ANY PLAN, MAY
ACQUIRE OR HOLD THIS CAPITAL SECURITIES CERTIFICATE OR ANY
INTEREST HEREIN, UNLESS SUCH PURCHASE OR HOLDING IS COVERED BY THE
EXEMPTIVE RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF LABOR
PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 96-23, 95-60,
91-38, 90-1 OR 84-14 OR ANOTHER APPLICABLE EXEMPTION WITH RESPECT
TO SUCH PURCHASE OR HOLDING AND, IN THE CASE OF ANY PURCHASER OR
HOLDER RELYING ON ANY EXEMPTION OTHER THAN PTCE 96-23, 95-60,
91-38, 90-1 OR 84-14, HAS COMPLIED
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WITH ANY REQUEST BY THE DEPOSITOR OR THE ISSUER TRUST FOR AN
OPINION OF COUNSEL OR OTHER EVIDENCE WITH RESPECT TO THE
APPLICABILITY OF SUCH EXEMPTION. ANY PURCHASER OR HOLDER OF THIS
CAPITAL SECURITIES CERTIFICATE OR ANY INTEREST HEREIN THAT IS A
PLAN ASSET ENTITY OR IS PURCHASING SUCH SECURITIES ON BEHALF OF OR
WITH "PLAN ASSETS" OF ANY PLAN WILL BE DEEMED TO HAVE REPRESENTED
BY ITS PURCHASE AND HOLDING HEREOF THAT (A) THE PURCHASE AND
HOLDING OF THE CAPITAL SECURITIES IS COVERED BY THE EXEMPTIVE
RELIEF PROVIDED BY PTCE 96-23, 95-60, 91-38, 90-1 OR 84-14 OR
ANOTHER APPLICABLE EXEMPTION, (B) THE COMPANY AND THE
ADMINISTRATORS ARE NOT "FIDUCIARIES" WITHIN THE MEANING OF SECTION
3(21) OF ERISA AND THE REGULATIONS THEREUNDER, WITH RESPECT TO
SUCH PERSON'S INTEREST IN THE CAPITAL SECURITIES OR THE JUNIOR
SUBORDINATED DEBENTURES, AND (C) IN PURCHASING THE CAPITAL
SECURITIES SUCH PERSON APPROVES THE PURCHASE OF THE JUNIOR
SUBORDINATED DEBENTURES AND THE APPOINTMENT OF THE ISSUER
TRUSTEES.
Certificate Number Number of Capital Securities
P-__ ---------------
$---------------
aggregate liquidation amount
CUSIP NO._________________
Certificate Evidencing Capital Securities
of
First Empire Capital Trust II
8.277% Capital Securities
(liquidation amount $1,000 per Capital Security)
First Empire Capital Trust II, a statutory business trust
formed under the laws of the State of Delaware (the "Issuer Trust"),
hereby certifies that ____________________ (the "Holder") is the
registered owner of $______________ in aggregate liquidation amount
of capital securities of the Trust representing a preferred undivided
beneficial interest in the assets of the Issuer Trust and has
designated the First Empire Capital Trust II 8.277% Capital
Securities (liquidation amount $1,000 per Capital Security) (the
"Capital Securities"). The Capital Securities are transferable on the
books and records of the Issuer Trust, in person or by a duly
authorized attorney, upon surrender of this certificate
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duly endorsed and in proper form for transfer as provided in
Section 5.5 of the Trust Agreement (as defined below). The
designations, rights, privileges, restrictions, preferences and
other terms and provisions of the Capital Securities are set forth
in, and this certificate and the Capital Securities represented
hereby are issued and shall in all respects be subject to the
terms and provisions of, the Amended and Restated Trust Agreement
of the Issuer Trust, dated as of June 6, 1997, as the same may be
amended from time to time (the "Trust Agreement"), among First
Empire State Corporation, as Depositor, Bankers Trust Company, as
Property Trustee, Bankers Trust (Delaware), as Delaware Trustee,
and the Holders of Trust Securities, including the designation of
the terms of the Capital Securities as set forth therein. The
Holder is entitled to the benefits of the Guarantee Agreement
entered into by First Empire State Corporation, a New York
corporation, and Bankers Trust Company, as guarantee trustee,
dated as of June 6, 1997 (the "Guarantee Agreement"), to the
extent provided therein. The Issuer Trust will furnish a copy of
the Issuer Trust Agreement and the Guarantee Agreement to the
Holder without charge upon written request to the Issuer Trust at
its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by
the Trust Agreement and is entitled to the benefits thereunder.
Terms used but not defined herein have the meanings set
forth in the Trust Agreement.
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IN WITNESS WHEREOF, one of the Administrators of the Issuer
Trust has executed this certificate this 6th day of June, 1997.
FIRST EMPIRE CAPITAL TRUST II
By:
-----------------------------
Name:
Administrator
COUNTERSIGNED AND REGISTERED:
BANKERS TRUST COMPANY,
as Securities Registrar
By: ________________________
Name:
Authorized Officer
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Capital Security to:
--------------------------------------------------------------------
(Insert assignee's social security or tax
identification number)
--------------------------------------------------------------------
--------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints _______________________________
--------------------------------------------------------------------
agent to transfer this Capital Security Certificate on the books of
the Issuer Trust. The agent may substitute another to act for him or
her.
Date:__________________
Signature:
--------------------------------------------
(Sign exactly as your name appears on
the other side of this Capital Security
Certificate)
The signature(s) should be guaranteed by an eligible guarantor
institution (banks, stockbrokers, savings and loan associations
and credit unions with membership in an approved signature
guarantee medallion program), pursuant to S.E.C. Rule 17Ad-15.
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