FIRST PREFERRED CAPITAL TRUST II
AMENDED AND RESTATED
TRUST AGREEMENT
AMONG
FIRST BANKS, INC., AS DEPOSITOR
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION, AS PROPERTY TRUSTEE
WILMINGTON TRUST COMPANY, AS DELAWARE TRUSTEE,
AND
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
DATED AS OF _________, 2000
TABLE OF CONTENTS
PAGE
ARTICLE I - DEFINED TERMS. . . . . . . . . . . . . . . . . . . . . . 2
Section 101. Definitions. . . . . . . . . . . . . . . . . . . . 2
ARTICLE II - ESTABLISHMENT OF THE TRUST. . . . . . . . . . . . . . . 11
Section 201. Name . . . . . . . . . . . . . . . . . . . . . . . 11
Section 202. Office of the Delaware Trustee; Principal
Place of Business. . . . . . . . . . . . . . . . . 11
Section 203. Initial Contribution of Trust Property;
Organizational Expenses. . . . . . . . . . . . . . 11
Section 204. Issuance of the Preferred Securities . . . . . . . 11
Section 205. Issuance of the Common Securities;
Subscription and Purchase of Debentures. . . . . . 12
Section 206. Declaration of Trust . . . . . . . . . . . . . . . 12
Section 207. Authorization to Enter into Certain
Transactions . . . . . . . . . . . . . . . . . . . 13
Section 208. Assets of Trust. . . . . . . . . . . . . . . . . . 16
Section 209. Title to Trust Property. . . . . . . . . . . . . . 16
ARTICLE III - PAYMENT ACCOUNT. . . . . . . . . . . . . . . . . . . . 17
Section 301. Payment Account. . . . . . . . . . . . . . . . . . 17
ARTICLE IV - DISTRIBUTIONS; REDEMPTION . . . . . . . . . . . . . . . 17
Section 401. Distributions. . . . . . . . . . . . . . . . . . . 18
Section 402. Redemption . . . . . . . . . . . . . . . . . . . . 18
Section 403. Subordination of Common Securities . . . . . . . . 20
Section 404. Payment Procedures . . . . . . . . . . . . . . . . 21
Section 405. Tax Returns and Reports. . . . . . . . . . . . . . 21
Section 406. Payment of Taxes, Duties, etc. of the
Trust. . . . . . . . . . . . . . . . . . . . . . . 21
Section 407. Payments Under Indenture . . . . . . . . . . . . . 22
ARTICLE V - TRUST SECURITIES CERTIFICATES. . . . . . . . . . . . . . 22
Section 501. Initial Ownership. . . . . . . . . . . . . . . . . 22
Section 502. The Trust Securities Certificates. . . . . . . . . 22
Section 503. Execution, Authentication and Delivery of
Trust Securities Certificates. . . . . . . . . . . 22
Section 503A. Global Preferred Security. . . . . . . . . . . . . 23
Section 504. Registration of Transfer and Exchange of
Preferred Securities Certificates. . . . . . . . . 24
Section 505. Mutilated, Destroyed, Lost or Stolen Trust
Securities Certificates. . . . . . . . . . . . . . 25
Section 506. Persons Deemed Securityholders . . . . . . . . . . 26
Section 507. Access to List of Securityholders' Names
and Addresses. . . . . . . . . . . . . . . . . . . 26
(i)
Section 508. Maintenance of Office or Agency. . . . . . . . . . 27
Section 509. Appointment of Paying Agent. . . . . . . . . . . . 27
Section 510. Ownership of Common Securities by
Depositor. . . . . . . . . . . . . . . . . . . . . 28
Section 511. Preferred Securities Certificates. . . . . . . . . 28
Section 512. Notices to Clearing Agency . . . . . . . . . . . . 28
Section 513. Rights of Securityholders. . . . . . . . . . . . . 28
ARTICLE VI - ACTS OF SECURITYHOLDERS; MEETINGS; VOTING . . . . . . . 29
Section 601. Limitations on Voting Rights . . . . . . . . . . . 29
Section 602. Notice of Meetings . . . . . . . . . . . . . . . . 30
Section 603. Meetings of Preferred Securityholders. . . . . . . 30
Section 604. Voting Rights. . . . . . . . . . . . . . . . . . . 31
Section 605. Proxies, etc.. . . . . . . . . . . . . . . . . . . 31
Section 606. Securityholder Action by Written Consent . . . . . 31
Section 607. Record Date for Voting and Other Purposes. . . . . 32
Section 608. Acts of Securityholders. . . . . . . . . . . . . . 32
Section 609. Inspection of Records. . . . . . . . . . . . . . . 33
ARTICLE VII - REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . 33
Section 701. Representations and Warranties of the Bank
and the Property Trustee . . . . . . . . . . . . . 33
Section 702. Representations and Warranties of the
Delaware Bank and the Delaware Trustee . . . . . . 34
Section 703. Representations and Warranties of the
Depositor. . . . . . . . . . . . . . . . . . . . . 35
ARTICLE VIII - TRUSTEES. . . . . . . . . . . . . . . . . . . . . . . 36
Section 801. Certain Duties and Responsibilities. . . . . . . . 36
Section 802. Certain Notices. . . . . . . . . . . . . . . . . . 37
Section 803. Certain Rights of Property Trustee . . . . . . . . 38
Section 804. Not Responsible for Recitals or Issuance
of Securities. . . . . . . . . . . . . . . . . . . 40
Section 805. May Hold Securities. . . . . . . . . . . . . . . . 40
Section 806. Compensation; Indemnity; Fees. . . . . . . . . . . 40
Section 807. Corporate Property Trustee Required;
Eligibility of Trustees. . . . . . . . . . . . . . 41
Section 808. Conflicting Interests. . . . . . . . . . . . . . . 41
Section 809. Co-Trustees and Separate Trustee . . . . . . . . . 42
Section 810. Resignation and Removal; Appointment of
Successor. . . . . . . . . . . . . . . . . . . . . 43
Section 811. Acceptance of Appointment by Successor . . . . . . 44
Section 812. Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . . . . . . 45
Section 813. Preferential Collection of Claims Against
Depositor or Trust . . . . . . . . . . . . . . . . 45
Section 814. Reports by Property Trustee. . . . . . . . . . . . 45
Section 815. Reports to the Property Trustee. . . . . . . . . . 46
Section 816. Evidence of Compliance with Conditions
Precedent. . . . . . . . . . . . . . . . . . . . . 46
Section 817. Number of Trustees . . . . . . . . . . . . . . . . 46
(ii)
Section 818. Delegation of Power. . . . . . . . . . . . . . . . 46
Section 819. Voting . . . . . . . . . . . . . . . . . . . . . . 47
ARTICLE IX - TERMINATION, LIQUIDATION AND MERGER . . . . . . . . . . 47
Section 901. Termination Upon Expiration Date . . . . . . . . . 47
Section 902. Early Termination. . . . . . . . . . . . . . . . . 47
Section 903. Termination. . . . . . . . . . . . . . . . . . . . 48
Section 904. Liquidation. . . . . . . . . . . . . . . . . . . . 48
Section 905. Mergers, Consolidations, Amalgamations or
Replacements of the Trust. . . . . . . . . . . . . 49
ARTICLE X - MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . 50
Section 1001. Limitation of Rights of Securityholders. . . . . . 50
Section 1002. Amendment. . . . . . . . . . . . . . . . . . . . . 51
Section 1003. Separability . . . . . . . . . . . . . . . . . . . 52
Section 1004. Governing Law. . . . . . . . . . . . . . . . . . . 52
Section 1005. Payments Due on Non-Business Day . . . . . . . . . 52
Section 1006. Successors . . . . . . . . . . . . . . . . . . . . 53
Section 1007. Headings . . . . . . . . . . . . . . . . . . . . . 53
Section 1008. Reports, Notices and Demands . . . . . . . . . . . 53
Section 1009. Agreement Not to Petition. . . . . . . . . . . . . 53
Section 1010. Trust Indenture Act; Conflict with Trust
Indenture Act. . . . . . . . . . . . . . . . . . . 54
Section 1011. Acceptance of Terms of Trust Agreement,
Guarantee and Indenture. . . . . . . . . . . . . . 54
Signatures. . . . . . . . . . . . . . . . . . . . . . . . 56
Exhibit A Certificate of Trust
Exhibit B Form of Common Securities Certificate
Exhibit C Form of Expense Agreement
Exhibit D Form of Preferred Securities Certificate
Exhibit E Certificate Depository Agreement
(iii)
CROSS-REFERENCE TABLE
Section of Section of
Trust Indenture Act Amended and Restated
of 1939, as amended Trust Agreement
- ------------------- ---------------
310(a)(1). . . . . . . . . . . . . . . . . . . . . . . . .807
310(a)(2). . . . . . . . . . . . . . . . . . . . . . . . .807
310(a)(3). . . . . . . . . . . . . . . . . . . . . . . . .807
310(a)(4). . . . . . . . . . . . . . . . . . . . . 207(a)(ii)
310(b) . . . . . . . . . . . . . . . . . . . . . . . . . .808
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . .813
311(b) . . . . . . . . . . . . . . . . . . . . . . . . . .813
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . .507
312(b) . . . . . . . . . . . . . . . . . . . . . . . . . .507
312(c) . . . . . . . . . . . . . . . . . . . . . . . . . .507
313(a) . . . . . . . . . . . . . . . . . . . . . . . . 814(a)
313(a)(4). . . . . . . . . . . . . . . . . . . . . . . 814(b)
313(b) . . . . . . . . . . . . . . . . . . . . . . . . 814(b)
313(c) . . . . . . . . . . . . . . . . . . . . . . . . . 1008
313(d) . . . . . . . . . . . . . . . . . . . . . . . . 814(c)
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . .815
314(b) . . . . . . . . . . . . . . . . . . . . Not Applicable
314(c)(1). . . . . . . . . . . . . . . . . . . . . . . . .816
314(c)(2). . . . . . . . . . . . . . . . . . . . . . . . .816
314(c)(3). . . . . . . . . . . . . . . . . . . Not Applicable
314(d) . . . . . . . . . . . . . . . . . . . . Not Applicable
314(e) . . . . . . . . . . . . . . . . . . . . . . . 101, 816
315(a) . . . . . . . . . . . . . . . . . . . . 801(a), 803(a)
315(b) . . . . . . . . . . . . . . . . . . . . . . .802, 1008
315(c) . . . . . . . . . . . . . . . . . . . . . . . . 801(a)
315(d) . . . . . . . . . . . . . . . . . . . . . . . 801, 803
316(a)(2). . . . . . . . . . . . . . . . . . . Not Applicable
316(b) . . . . . . . . . . . . . . . . . . . . Not Applicable
316(c) . . . . . . . . . . . . . . . . . . . . . . . . . .607
317(a)(1). . . . . . . . . . . . . . . . . . . Not Applicable
317(a)(2). . . . . . . . . . . . . . . . . . . Not Applicable
317(b) . . . . . . . . . . . . . . . . . . . . . . . . . .509
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . 1010
Note: This Cross-Reference Table does not constitute part of this
Agreement and shall not affect the interpretation of any of its
terms or provisions.
(iv)
AMENDED AND RESTATED TRUST AGREEMENT
AMENDED AND RESTATED TRUST AGREEMENT, dated as of _________, 2000,
among (i) FIRST BANKS, INC., a Missouri corporation (including any
successors or assigns, the "Depositor"), (ii) STATE STREET BANK AND
TRUST COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, a national banking
association duly organized and existing under the laws of the United
States of America, as property trustee (the "Property Trustee" and,
in its separate corporate capacity and not in its capacity as Property
Trustee, the "Bank"), (iii) WILMINGTON TRUST COMPANY, a Delaware banking
corporation duly organized and existing under the laws of the State of
Delaware, as Delaware trustee (the "Delaware Trustee," and, in its
separate corporate capacity and not in its capacity as Delaware Trustee,
the "Delaware Bank"), (iv) ALLEN H. BLAKE, an individual, FRANK H.
SANFILIPPO, an individual, and LISA VANSICKLE, an individual, each of
whose address is c/o First Banks, Inc., 11901 Olive Boulevard, St. Louis,
Missouri 63141 (each an "Administrative Trustee" and collectively the
"Administrative Trustees") (the Property Trustee, the Delaware Trustee
and the Administrative Trustees referred to collectively as the
"Trustees"), and (v) the several Holders (as hereinafter defined).
RECITALS
WHEREAS, the Depositor, the Delaware Trustee, Allen H. Blake,
Frank H. Sanfilippo and Lisa Vansickle, each as an Administrative
Trustee, have heretofore duly declared and established a business trust
pursuant to the Delaware Business Trust Act by entering into that
certain Trust Agreement, dated as of September 8, 2000 (the "Original
Trust Agreement"), and by the execution and filing by the Delaware
Trustee, the Depositor and the Administrative Trustees with the
Secretary of State of the State of Delaware of the Certificate of Trust,
filed on September 12, 2000, the form of which is attached as Exhibit A;
and
WHEREAS, the Depositor, the Delaware Trustee, the Property Trustee
and the Administrative Trustees desire to amend and restate the Original
Trust Agreement in its entirety as set forth herein to provide for,
among other things, (i) the issuance of the Common Securities (as
defined herein) by the Trust (as defined herein) to the Depositor;
(ii) the issuance and sale of the Preferred Securities (as defined
herein) by the Trust pursuant to the Underwriting Agreement (as defined
herein); (iii) the acquisition by the Trust from the Depositor of all of
the right, title and interest in the Debentures (as defined herein); and
(iv) the appointment of the Trustees;
NOW THEREFORE, in consideration of the agreements and obligations
set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, each party,
for the benefit of the other parties and for the benefit of the
Securityholders (as defined herein), hereby amends and restates the
Original Trust Agreement in its entirety and agrees as follows:
ARTICLE I
DEFINED TERMS
SECTION 101. DEFINITIONS.
For all purposes of this Trust Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article I have the meanings
assigned to them in this Article I and include the plural as well as the
singular;
(b) all other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(c) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case
may be, of this Trust Agreement; and
(d) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Trust Agreement as a whole and not to
any particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 608.
"Additional Amount" means, with respect to Trust Securities of a
given Liquidation Amount and/or a given period, the amount of additional
interest accrued on interest in arrears and paid by the Depositor on a
Like Amount of Debentures for such period.
"Additional Payments" has the meaning specified in Section 1.1 of
the Indenture.
"Administrative Trustee" means each of Allen H. Blake, Frank H.
Sanfilippo and Lisa Vansickle, solely in his or her capacity as
Administrative Trustee of the Trust formed and continued hereunder and
not in his or her individual capacity, or such Administrative Trustee's
successor in interest in such capacity, or any successor trustee appointed
as herein provided.
"Affiliate" means, with respect to a specified Person, (a) any
Person directly or indirectly owning, controlling or holding with power
to vote 10% or more of the outstanding voting securities or other
ownership interests of the specified Person; (b) any Person 10% or more of
whose outstanding voting securities or other ownership interests are
directly or indirectly owned, controlled or held with power to vote by
the specified Person; (c) any Person directly or indirectly controlling,
controlled by, or under common control with the specified Person; (d) a
partnership in which the specified Person is a general partner; (e) any
officer or director of the specified Person; and (f) if the specified
Person is an individual, any entity of which the specified Person is an
officer, director or general partner.
2
"Authenticating Agent" means an authenticating agent with respect
to the Preferred Securities appointed by the Property Trustee pursuant
to Section 503.
"Bank" has the meaning specified in the Preamble to this Trust
Agreement.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having
jurisdiction in the premises adjudging such Person a bankrupt or
insolvent, or approving as properly filed a petition seeking liquidation
or reorganization of or in respect of such Person under the United
States Bankruptcy Code of 1978, as amended, or any other similar
applicable federal or state law, and the continuance of any such decree
or order unvacated and unstayed for a period of 90 days; or the
commencement of an involuntary case under the United States Bankruptcy
Code of 1978, as amended, in respect of such Person, which shall
continue undismissed for a period of 90 days or entry of an order for
relief in such case; or the entry of a decree or order of a court having
jurisdiction in the premises for the appointment on the ground of
insolvency or bankruptcy of a receiver, custodian, liquidator, trustee
or assignee in bankruptcy or insolvency of such Person or of its
property, or for the winding up or liquidation of its affairs, and such
decree or order shall have remained in force unvacated and unstayed for
a period of 90 days; or
(b) the institution by such Person of proceedings to be
adjudicated a voluntary bankrupt, or the consent by such Person to the
filing of a bankruptcy proceeding against it, or the filing by such
Person of a petition or answer or consent seeking liquidation or
reorganization under the United States Bankruptcy Code of 1978, as
amended, or other similar applicable Federal or State law, or the
consent by such Person to the filing of any such petition or to the
appointment on the ground of insolvency or bankruptcy of a receiver or
custodian or liquidator or trustee or assignee in bankruptcy or
insolvency of such Person or of its property, or a general assignment by
such Person for the benefit of creditors.
"Bankruptcy Laws" has the meaning specified in Section 1009.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Depositor to have been duly
adopted by the Depositor's Board of Directors, or such committee of the
Board of Directors or officers of the Depositor to which authority to
act on behalf of the Board of Directors has been delegated, and to be in
full force and effect on the date of such certification, and delivered
to the appropriate Trustee.
"Business Day" means a day other than a Saturday or Sunday, a day
on which banking institutions in The City of New York are authorized or
required by law, executive order or regulation to remain closed, or a
day on which the Property Trustee's Corporate Trust Office or the
Corporate Trust Office of the Debenture Trustee is closed for business.
3
"Certificate Depositary Agreement" means the agreement among
Depositor, Trust and DTC, as the initial Clearing Agency, dated as of
the Closing Date, substantially in the form attached as Exhibit E as the
same may be amended and supplemented from time to time.
"Certificate of Trust" means the certificate of trust filed with
the Secretary of State of the State of Delaware with respect to the
Trust, as amended or restated from time to time.
"Change in 1940 Act Law" shall have the meaning set forth in the
definition of "Investment Company Event."
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Securities Exchange Act of 1934,
as amended. DTC shall be the initial Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank or
other financial institution or other Person for whom from time to time a
Clearing Agency effects book-entry transfers and pledges of securities
deposited with the Clearing Agency.
"Closing Date" means the date of execution and delivery of this
Trust Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any
time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"Common Security" means an undivided beneficial interest in the
assets of the Trust, having a Liquidation Amount of $25 and having the
rights provided therefor in this Trust Agreement, including the right to
receive Distributions and a Liquidation Distribution as provided herein.
"Common Securities Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached as
Exhibit B.
"Common Securityholder" means First Banks, Inc.
"Company" means First Banks Inc.
"Corporate Trust Office" means the office at which, at any
particular time, the corporate trust business of the Property Trustee or
the Debenture Trustee, as the case may be, shall be principally
administered, which office at the date hereof, in each such case, is
located at 225 Asylum Street, Goodwin Square, Hartford, Connecticut,
Attention: Corporate Trust Department.
"Debenture Event of Default" means an "Event of Default" as
defined in Section 7.1 of the Indenture.
4
"Debenture Redemption Date" means, with respect to any Debentures
to be redeemed under the Indenture, the date fixed for redemption under
the Indenture.
"Debenture Tax Event" means a "Tax Event" as specified in Section
1.1 of the Indenture.
"Debenture Trustee" means State Street Bank and Trust Company
of Connecticut, National Association, a national banking association
organized under the laws of the United States of America, and any
successor thereto, as trustee under the Indenture.
"Debentures" means the $51,546,400 (or $59,278,375 if
the Underwriters exercise their Option (as such terms are defined in the
Underwriting Agreement)) aggregate principal amount of the Depositor's
____% Subordinated Debentures due 2030, issued pursuant to the
Indenture.
"Definitive Preferred Securities Certificates" means the Preferred
Securities Certificates issued in certificated, fully registered form as
provided in Section 511.
"Delaware Bank" has the meaning specified in the Preamble to this
Trust Agreement.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Delaware Code Sections 3801 et seq., as it may be
amended from time to time.
"Delaware Trustee" means the commercial bank or trust company
identified as the "Delaware Trustee" in the Preamble to this Trust
Agreement, solely in its capacity as Delaware Trustee of the Trust
continued hereunder and not in its individual capacity, or its
successor in interest in such capacity, or any successor trustee
appointed as herein provided.
"Depositary" means DTC or any successor thereto.
"Depositor" has the meaning specified in the Preamble to this
Trust Agreement.
"Distribution Date" has the meaning specified in Section 401(a).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 401.
"DTC" means The Depository Trust Company.
"Early Termination Event" has the meaning specified in Section 902.
"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
5
or pursuant to any judgment, decree or order of any court or any order,
rule or regulation of any administrative or governmental body):
(a) the occurrence of a Debenture Event of Default; or
(b) default by the Trust or the Property Trustee in the payment
of any Distribution when it becomes due and payable, and continuation of
such default for a period of 30 days; or
(c) default by the Trust or the Property Trustee in the payment
of any Redemption Price of any Trust Security when it becomes due and
payable; or
(d) default in the performance, or breach, in any material
respect, of any covenant or warranty of the Trustees in this Trust
Agreement (other than a covenant or warranty a default in the
performance of which or the breach of which is dealt with in clause (b)
or (c), above) and continuation of such default or breach for a period
of 60 days after there has been given, by registered or certified mail,
to the defaulting Trustee or Trustees by the Holders of at least 25% in
aggregate Liquidation Amount of the Outstanding Preferred Securities a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder; or
(e) the occurrence of a Bankruptcy Event with respect to the
Property Trustee and the failure by the Depositor to appoint a successor
Property Trustee within 60 days thereof.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Expense Agreement" means the Agreement as to Expenses and
Liabilities between the Depositor and the Trust, substantially in the
form attached as Exhibit C, as amended from time to time.
"Expiration Date" has the meaning specified in Section 901.
"Extension Period" has the meaning specified in Section 4.1 of
the Indenture.
"Global Preferred Securities Certificate" means a Preferred
Securities Certificate evidencing ownership of Global Preferred
Securities.
"Global Preferred Security" means a Preferred Security, the
ownership and transfer of which shall be made through book entries by a
Clearing Agency as described herein.
"Guarantee" means the Preferred Securities Guarantee Agreement
executed and delivered by the Depositor and State Street Bank and Trust
Company of Connecticut, National Association, as trustee, contemporaneously
with the
6
execution and delivery of this Trust Agreement, for the benefit of the
Preferred Securityholders, as amended from time to time.
"Indenture" means the Indenture, dated as of _________, 2000,
between the Depositor and the Debenture Trustee, as trustee, as amended
or supplemented from time to time pertaining to the Debentures of the
Depositor.
"Investment Company Act," means the Investment Company Act of
1940, as amended, as in effect at the date of execution of this
instrument.
"Investment Company Event" means the receipt by the Trust and the
Depositor of an Opinion of Counsel, rendered by a law firm having a
recognized national tax and securities law practice within a reasonable
period of time after the applicable occurrence, to the effect that, as a
result of the occurrence of a change in law or regulation or a change in
interpretation or application of law or regulation by any legislative
body, court, governmental agency or regulatory authority (a "Change in
1940 Act Law"), the Trust is or shall be considered an "investment
company" that is required to be registered under the Investment Company
Act, which Change in 1940 Act Law becomes effective on or after the date
of original issuance of the Preferred Securities under this Trust
Agreement.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed
of trust, adverse ownership interest, hypothecation, assignment,
security interest or preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of Trust
Securities, Trust Securities having an aggregate Liquidation Amount
equal to the aggregate principal amount of Debentures to be
contemporaneously redeemed in accordance with the Indenture and the
proceeds of which shall be used to pay the Redemption Price of such
Trust Securities; and (b) with respect to a distribution of Debentures
to Holders of Trust Securities in connection with a termination or
liquidation of the Trust, Debentures having a principal amount equal to
the Liquidation Amount of the Trust Securities of the Holder to whom
such Debentures are distributed. Each Debenture distributed pursuant to
clause (b) above shall carry with it accrued interest in an amount equal
to the accrued and unpaid interest then due on such Debentures.
"Liquidation Amount" means the stated amount of $25 per Trust
Security.
"Liquidation Date" means the date on which Debentures are to be
distributed to Holders of Trust Securities in connection with a
termination and liquidation of the Trust pursuant to Section 904(a).
"Liquidation Distribution" has the meaning specified in
Section 904(d).
"Officers' Certificate" means a certificate signed by the
President or a Vice President and by the Treasurer or an Assistant
Treasurer or the Controller or an Assistant Controller or the Secretary
7
or an Assistant Secretary, of the Depositor, and delivered to the
appropriate Trustee. One of the officers signing an Officers'
Certificate given pursuant to Section 816 shall be the principal
executive, financial or accounting officer of the Depositor. Any
Officers' Certificate delivered with respect to compliance with a
condition or covenant provided for in this Trust Agreement shall
include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions
relating thereto;
(b) a brief statement of the nature and scope of the examination
or investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) a statement that each such officer has made such examination
or investigation as, in such officer's opinion, is necessary to enable
such officer to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Opinion of Counsel" means an opinion in writing of independent,
outside legal counsel, who may be counsel for the Trust, the Property
Trustee, the Delaware Trustee or the Depositor and who shall be
reasonably acceptable to the Property Trustee.
"Original Trust Agreement" has the meaning specified in the
Recitals to this Trust Agreement.
"Outstanding", when used with respect to Preferred Securities,
means, as of the date of determination, all Preferred Securities
theretofore executed and delivered under this Trust Agreement, except:
(a) Preferred Securities theretofore canceled by the Property
Trustee or delivered to the Property Trustee for cancellation;
(b) Preferred Securities for whose payment or redemption money
in the necessary amount has been theretofore deposited with the Property
Trustee or any Paying Agent for the Holders of such Preferred
Securities; provided that, if such Preferred Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this
Trust Agreement; and
(c) Preferred Securities which have been paid or in exchange for
or in lieu of which other Preferred Securities have been executed and
delivered pursuant to Sections 504, 505, 511 and 513; provided, however,
that in determining whether the Holders of the requisite Liquidation
Amount of the Outstanding Preferred Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder,
Preferred Securities owned by the Depositor, any Trustee or
8
any Affiliate of the Depositor or any Trustee shall be disregarded and
deemed not to be Outstanding, except that (i) in determining whether any
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Preferred
Securities that such Trustee knows to be so owned shall be so
disregarded; and (ii) the foregoing shall not apply at any time when all
of the outstanding Preferred Securities are owned by the Depositor, one
or more of the Trustees and/or any such Affiliate. Preferred Securities
so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the
Administrative Trustees the pledgee's right so to act with respect to
such Preferred Securities and the pledgee is not the Depositor or any
other Obligor upon the Preferred Securities or a Person directly or
indirectly controlling or controlled by or under direct or indirect
common control with the Depositor or any Affiliate of the Depositor.
"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 509 and shall initially be the Bank.
"Payment Account" means a segregated non-interest-bearing
corporate trust account maintained by the Property Trustee with the Bank
in its trust department for the benefit of the Securityholders in which
all amounts paid in respect of the Debentures shall be held and from
which the Property Trustee shall make payments to the Securityholders in
accordance with Sections 401 and 402.
"Person" means any individual, corporation, partnership, joint
venture, trust, limited liability company or corporation, unincorporated
organization or government or any agency or political subdivision
thereof.
"Preferred Securities Certificate", means a certificate evidencing
ownership of Preferred Securities, substantially in the form attached as
Exhibit D.
"Preferred Security" means an undivided beneficial interest in the
assets of the Trust, having a Liquidation Amount of $25 and having the
rights provided therefor in this Trust Agreement, including the right to
receive Distributions and a Liquidation Distribution as provided herein.
"Preferred Securityholder" means a Holder of a Preferred Security.
"Property Trustee" means the commercial bank or trust company
identified as the "Property Trustee," in the Preamble to this Trust
Agreement solely in its capacity as Property Trustee of the Trust
heretofore formed and continued hereunder and not in its individual
capacity, or its successor in interest in such capacity, or any
successor property trustee appointed as herein provided.
"Redemption Date" means, with respect to any Trust Security to be
redeemed, the date fixed for such redemption by or pursuant to this
Trust Agreement; provided that each Debenture Redemption Date and the
stated maturity of the Debentures shall be a Redemption Date for a Like
Amount of Trust Securities.
9
"Redemption Price" means, with respect to any Trust Security, the
Liquidation Amount of such Trust Security, plus accumulated and unpaid
Distributions to the Redemption Date, allocated on a pro rata basis
(based on Liquidation Amounts) among the Trust Securities.
"Relevant Trustee" shall have the meaning specified in Section 810.
"Securities Register" and "Securities Registrar" have the
respective meanings specified in Section 504.
"Securityholder" or "Holder" means a Person in whose name a Trust
Security or Securities is registered in the Securities Register; any
such Person is a beneficial owner within the meaning of the Delaware
Business Trust Act.
"Trust" means the Delaware business trust created and continued
hereby and identified on the cover page to this Trust Agreement.
"Trust Agreement" means this Amended and Restated Trust Agreement,
as the same may be modified, amended or supplemented in accordance with
the applicable provisions hereof, including all exhibits hereto,
including, for all purposes of this Trust Agreement and any such
modification, amendment or supplement, the provisions of the Trust
Indenture Act that are deemed to be a part of and govern this Trust
Agreement and any such modification, amendment or supplement,
respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, as in force at the date as of which this instrument was
executed; provided, however, that in the event the Trust Indenture Act
of 1939, as amended, is amended after such date, "Trust Indenture Act"
means, to the extent required by any such amendment, the Trust Indenture
Act of 1939 as so amended.
"Trust Property" means (a) the Debentures; (b) the rights of the
Property Trustee under the Guarantee; (c) any cash on deposit in, or
owing to, the Payment Account; and (d) all proceeds and rights in
respect of the foregoing and any other property and assets for the time
being held or deemed to be held by the Property Trustee pursuant to this
Trust Agreement.
"Trust Security" means any one of the Common Securities or the
Preferred Securities.
"Trust Securities Certificate" means any one of the Common
Securities Certificates or the Preferred Securities Certificates.
"Trustees" means, collectively, the Property Trustee, the Delaware
Trustee and the Administrative Trustees.
"Underwriting Agreement" means the Underwriting Agreement, dated
as of _________, 2000, among the Trust, the Depositor and the
Underwriters named therein.
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ARTICLE II
ESTABLISHMENT OF THE TRUST
SECTION 201. NAME.
The Trust continued hereby shall be known as "FIRST PREFERRED
CAPITAL TRUST II," as such name may be modified from time to time by
the Administrative Trustees following written notice to the Holders
of Trust Securities and the other Trustees, in which name the Trustees
may engage in the transactions contemplated hereby, make and execute
contracts and other instruments on behalf of the Trust and sue
and be sued.
SECTION 202. OFFICE OF THE DELAWARE TRUSTEE; PRINCIPAL PLACE OF
BUSINESS.
The address of the Delaware Trustee in the State of Delaware is
c/o Wilmington Trust Company, Rodney Square North, 1100 North Market
Street, Wilmington, Delaware 19890-0001, Attention: Corporate Trust
Administration, or such other address in the State of Delaware as the
Delaware Trustee may designate by written notice to the Securityholders
and the Depositor. The principal executive office of the Trust is c/o
First Banks, Inc., 135 North Meramec Avenue, St. Louis, Missouri 63105.
SECTION 203. INITIAL CONTRIBUTION OF TRUST PROPERTY;
ORGANIZATIONAL EXPENSES.
The Trustees acknowledge receipt in trust from the Depositor in
connection with the Original Trust Agreement of the sum of $10, which
constituted the initial Trust Property. The Depositor shall pay
organizational expenses of the Trust as they arise or shall, upon
request of any Trustee, promptly reimburse such Trustee for any such
expenses paid by such Trustee. The Depositor shall make no claim upon
the Trust Property for the payment of such expenses.
SECTION 204. ISSUANCE OF THE PREFERRED SECURITIES.
On _________, 2000, the Depositor and an Administrative Trustee,
on behalf of the Trust and pursuant to the Original Trust Agreement,
executed and delivered the Underwriting Agreement. Contemporaneously
with the execution and delivery of this Trust Agreement, an
Administrative Trustee, on behalf of the Trust, shall execute in
accordance with Section 502 and deliver in accordance with the
Underwriting Agreement, Preferred Securities Certificates, registered in
the name of the Persons entitled thereto, in an aggregate amount of
2,000,000 Preferred Securities having an aggregate Liquidation Amount
of $50,000,000 against receipt of the aggregate purchase price of
such Preferred Securities of $50,000,000, which amount such Administrative
Trustee shall promptly deliver to the Property Trustee. If the Underwriters
exercise their Option and there is an Option Closing Date (as defined in
the Underwriting Agreement), then an Administrative Trustee, on behalf of
the Trust, shall execute in accordance with Section 502, and deliver in
accordance with the Underwriting Agreement, additional Preferred Securities
Certificates, registered in the name of
11
the Persons entitled thereto in an aggregate amount of up to 300,000
Preferred Securities having an aggregate Liquidation Amount of up
to $7,500,000 against receipt of the aggregate purchase price of
such Preferred Securities equal to the product of $25 multiplied by the
number of Preferred Securities purchased pursuant to the Option, which
amount such Administrative Trustee shall promptly deliver to the
Property Trustee.
SECTION 205. ISSUANCE OF THE COMMON SECURITIES; SUBSCRIPTION AND
PURCHASE OF DEBENTURES.
(a) Contemporaneously with the execution and delivery of this
Trust Agreement, an Administrative Trustee, on behalf of the Trust,
shall execute in accordance with Section 502 and deliver to the
Depositor Common Securities Certificates registered in the name of the
Depositor, in an aggregate amount of 61,856 Common Securities having
an aggregate Liquidation Amount of $1,546,400 against payment by the
Depositor of such amount. Contemporaneously therewith, an
Administrative Trustee, on behalf of the Trust, shall subscribe to and
purchase from the Depositor Debentures, registered in the name of the
Property Trustee on behalf of the Trust and having an aggregate
principal amount equal to $51,546,400 and, in satisfaction of the
purchase price for such Debentures, the Property Trustee, on behalf of
the Trust, shall deliver to the Depositor the sum of $51,546,400.
(b) If the Underwriters exercise the Option and there is an
Option Closing Date, then an Administrative Trustee, on behalf of the
Trust, shall execute in accordance with Section 502, and deliver to the
Depositor, Common Securities Certificates, registered in the name of the
Depositor, in an aggregate amount of up to 9,279 Common Securities
having an aggregate Liquidation Amount of up to $231,975 against
payment by the Depositor of an amount equal to the product of $25
multiplied by the number of additional Common Securities purchased by
the Depositor. Contemporaneously therewith, an Administrative Trustee,
on behalf of the Trust, shall subscribe to and purchase from the
Depositor, additional Debentures, registered in the name of the Property
Trustee on behalf of the Trust and having an aggregate principal amount
of up to $7,731,975, and, in satisfaction of the purchase price of
such Debentures, the Property Trustee, on behalf of the Trust, shall
deliver to the Depositor up to $7,731,975, such aggregate amount equal
to the sum of the amounts received from the Depositor pursuant to the
first sentence of this Section 205(b) and from one of the Administrative
Trustees pursuant to the last sentence of Section 204.
SECTION 206. DECLARATION OF TRUST.
The exclusive purposes and functions of the Trust are (a) to issue
and sell Trust Securities and use the proceeds from such sale to acquire
the Debentures; and (b) to engage in those activities necessary,
advisable or incidental thereto. The Depositor hereby appoints the
Trustees as trustees of the Trust, to have all the rights, powers and
duties to the extent set forth herein, and the Trustees hereby accept
such appointment. The Property Trustee hereby declares that it shall
hold the Trust Property in trust upon and subject to the conditions set
forth herein for the benefit of the Securityholders. The Administrative
Trustees shall have all rights, powers and duties set forth
12
herein and in accordance with applicable law with respect to
accomplishing the purposes of the Trust. The Delaware Trustee shall not
be entitled to exercise any powers, nor shall the Delaware Trustee have
any of the duties and responsibilities, of the Property Trustee or the
Administrative Trustees set forth herein. The Delaware Trustee shall be
one of the Trustees of the Trust for the sole and limited purpose of
fulfilling the requirements of Section 3807 of the Delaware Business
Trust Act.
SECTION 207. AUTHORIZATION TO ENTER INTO CERTAIN TRANSACTIONS.
(a) The Trustees shall conduct the affairs of the Trust in
accordance with the terms of this Trust Agreement. Subject to the
limitations set forth in paragraph (b) of this Section 207 and
Article VIII, and in accordance with the following provisions (i) and
(ii), the Administrative Trustees shall have the authority to enter into
all transactions and agreements determined by the Administrative
Trustees to be appropriate in exercising the authority, express or
implied, otherwise granted to the Administrative Trustees under this
Trust Agreement, and to perform all acts in furtherance thereof,
including without limitation, the following:
(i) As among the Trustees, each Administrative Trustee,
acting singly or jointly, shall have the power and authority to act on
behalf of the Trust with respect to the following matters:
(A) the issuance and sale of the Trust Securities and
compliance with the Underwriting Agreement in
connection therewith;
(B) to cause the Trust to enter into, and to
execute, deliver and perform on behalf of the
Trust, the Expense Agreement and such other
agreements or documents as may be necessary or
desirable in connection with the purposes and
function of the Trust;
(C) assisting in the registration of the Preferred
Securities under the Securities Act of 1933, as
amended, and under state securities or blue sky
laws, and the qualification of this Trust
Agreement as a trust indenture under the Trust
Indenture Act;
(D) assisting in the listing of the Preferred
Securities upon The Nasdaq National Market(SM) or
such securities exchange or exchanges as shall
be determined by the Depositor, the registration
of the Preferred Securities under the Exchange Act,
the compliance with the listing requirements of The
Nasdaq National Market(SM) or the applicable
securities exchanges and the preparation and filing
of all periodic and other documents pursuant to the
foregoing;
13
(E) the sending of notices (other than notices of
default) and other information regarding the
Trust Securities and the Debentures to the
Securityholders in accordance with this Trust
Agreement;
(F) the appointment of a Paying Agent,
Authenticating Agent and Securities Registrar in
accordance with this Trust Agreement;
(G) to the extent provided in this Trust Agreement,
the winding up of the affairs of and
liquidation of the Trust and the preparation,
execution and filing of the certificate of
cancellation with the Secretary of State of the
State of Delaware;
(H) the taking of all action that may be necessary
or appropriate for the preservation and the
continuation of the Trust's valid existence,
rights, franchises and privileges as a statutory
business trust under the laws of the State of
Delaware and of each other jurisdiction in which
such existence is necessary to protect the
limited liability of the Preferred
Securityholders or to enable the Trust to effect
the purposes for which the Trust was created;
and
(I) the taking of any action incidental to the
foregoing as the Administrative Trustees may
from time to time determine is necessary or
advisable to give effect to the terms of this
Trust Agreement for the benefit of the
Securityholders (without consideration of the
effect of any such action on any particular
Securityholder).
(ii) As among the Trustees, the Property Trustee shall have
the power, duty and authority to act on behalf of the Trust with respect
to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Debentures;
(C) the collection of interest, principal and any
other payments made in respect of the Debentures
in the Payment Account;
(D) the distribution of amounts owed to the
Securityholders in respect of the Trust
Securities in accordance with the terms of this
Trust Agreement;
(E) the exercise of all of the rights, powers and
privileges of a holder of the Debentures;
14
(F) the sending of notices of default and other
information regarding the Trust Securities and
the Debentures to the Securityholders in
accordance with this Trust Agreement;
(G) the distribution of the Trust Property in
accordance with the terms of this Trust
Agreement;
(H) to the extent provided in this Trust Agreement,
the winding up of the affairs of and liquidation
of the Trust;
(I) after an Event of Default, the taking of any
action incidental to the foregoing as the
Property Trustee may from time to time determine
is necessary or advisable to give effect to the
terms of this Trust Agreement and protect and
conserve the Trust Property for the benefit of
the Securityholders (without consideration of
the effect of any such action on any particular
Securityholder);
(J) registering transfers of the Trust Securities in
accordance with this Trust Agreement; and
(K) except as otherwise provided in this Section
207(a)(ii), the Property Trustee shall have none
of the duties, liabilities, powers or the
authority of the Administrative Trustees set
forth in Section 207(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust
(or the Trustees acting on behalf of the Trust) shall not undertake any
business, activities or transaction except as expressly provided herein
or contemplated hereby. In particular, the Trustees shall not
(i) acquire any investments or engage in any activities not authorized
by this Trust Agreement; (ii) sell, assign, transfer, exchange,
mortgage, pledge, set-off or otherwise dispose of any of the Trust
Property or interests therein, including to Securityholders, except as
expressly provided herein; (iii) take any action that would cause the
Trust to fail or cease to qualify as a "grantor trust" for United States
federal income tax purposes; (iv) incur any indebtedness for borrowed
money or issue any other debt; or (v) take or consent to any action that
would result in the placement of a Lien on any of the Trust Property.
The Administrative Trustees shall defend all claims and demands of all
Persons at any time claiming any Lien on any of the Trust Property
adverse to the interest of the Trust or the Securityholders in their
capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred
Securities, the Depositor shall have the right and responsibility to
assist the Trust with respect to, or effect on behalf of the Trust, the
following (and any actions taken by the Depositor in furtherance of the
following prior to the date of this Trust Agreement are hereby ratified
and confirmed in all respects):
15
(i) the preparation and filing by the Trust with the
Commission and the execution on behalf of the Trust of a registration
statement on the appropriate form in relation to the Preferred
Securities, the Debentures and the Guarantee, including any amendments
thereto;
(ii) the determination of the states in which to take
appropriate action to qualify or, register for sale all or part of the
Preferred Securities and to do any and all such acts, other than actions
which must be taken by or on behalf of the Trust, and advise the
Trustees of actions they must take on behalf of the Trust, and prepare
for execution and filing any documents to be executed and filed by the
Trust or on behalf of the Trust, as the Depositor deems necessary or
advisable in order to comply with the applicable laws of any such
states;
(iii) the preparation for filing by the Trust and execution
on behalf of the Trust of an application to The Nasdaq National Market(SM)
or a national stock exchange or other organization for listing upon
notice of issuance of any Preferred Securities and to file or cause an
Administrative Trustee to file thereafter with such exchange or
organization such notifications and documents as may be necessary from
time to time;
(iv) the preparation for filing by the Trust with the
Commission and the execution on behalf of the Trust of a registration
statement on Form 8-A relating to the registration of the Preferred
Securities under Section 12(b) or 12(g) of the Exchange Act, including
any amendments thereto;
(v) the negotiation of the terms of, and the execution and
delivery of, the Underwriting Agreement providing for the sale of the
Preferred Securities; and
(vi) the taking of any other actions necessary or desirable
to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the
Administrative Trustees are authorized and directed to conduct the
affairs of the Trust and to operate the Trust so that the Trust shall not
be deemed to be an "investment company" required to be registered under
the Investment Company Act, shall be classified as a "grantor trust" and
not as an association taxable as a corporation for United States federal
income tax purposes and so that the Debentures shall be treated as
indebtedness of the Depositor for United States federal income tax purposes.
In this connection, subject to Section 1002, the Depositor and the
Administrative Trustees are authorized to take any action, and the
Administrative Trustees are authorized to direct the Property Trustee in
writing to take any action not inconsistent with applicable law or this
Trust Agreement, that each of the Depositor and the Trustees determines
in their discretion to be necessary or desirable for such purposes. The
Property Trustee shall take any action so directed by one or more of the
Administrative Trustees.
SECTION 208. ASSETS OF TRUST.
The assets of the Trust shall consist of the Trust Property.
16
SECTION 209. TITLE TO TRUST PROPERTY.
Legal title to all Trust Property shall be vested at all times in
the Property Trustee (in its capacity as such) and shall be held and
administered by the Property Trustee for the benefit of the
Securityholders in accordance with this Trust Agreement.
ARTICLE III
PAYMENT ACCOUNT
SECTION 301. PAYMENT ACCOUNT.
(a) On or prior to the Closing Date, the Property Trustee shall
establish the Payment Account. The Property Trustee and any agent of
the Property Trustee shall have exclusive control and sole right of
withdrawal with respect to the Payment Account for the purpose of making
deposits and withdrawals from the Payment Account in accordance with
this Trust Agreement. All monies and other property deposited or held
from time to time in the Payment Account shall be held by the Property
Trustee in the Payment Account for the exclusive benefit of the
Securityholders and for distribution as herein provided, including (and
subject to) any priority of payments provided for herein.
(b) The Property Trustee shall deposit in the Payment Account,
promptly upon receipt, all payments of principal of or interest on, and
any other payments or proceeds with respect to, the Debentures. Amounts
held in the Payment Account shall not be invested by the Property
Trustee pending distribution thereof.
ARTICLE IV
DISTRIBUTIONS; REDEMPTION
SECTION 401. DISTRIBUTIONS.
(a) Distributions on the Trust Securities shall be cumulative,
and shall accumulate whether or not there are funds of the Trust
available for the payment of Distributions. Distributions shall
accumulate from _________, 2000, and, except during any Extension
Period with respect to the Debentures, shall be payable quarterly
in arrears on March 31, June 30, September 30 and December 31 of
each year, commencing on December 31, 2000. If any date on which a
Distribution is otherwise payable on the Trust Securities is not a
Business Day, then the payment of such Distribution shall be made on the
next succeeding day that is a Business Day (and without any interest or
other payment in respect of any such delay) with the same force and
effect as if made on such date (each date on which distributions are
payable in accordance with this Section 401(a), a "Distribution Date").
17
(b) The Trust Securities represent undivided beneficial
interests in the Trust Property. The Distributions on the Trust
Securities shall be payable at a rate of ____% per annum of the
Liquidation Amount of the Trust Securities. The amount of Distributions
payable for any full period shall be computed on the basis of a 360-day
year of twelve 30-day months. The amount of Distributions for any
partial period shall be computed on the basis of the number of days
elapsed in a 360-day year of twelve 30 day months. During any Extension
Period with respect to the Debentures, Distributions on the Preferred
Securities shall be deferred for a period equal to the Extension Period.
(c) Distributions on the Trust Securities shall be made by the
Property Trustee solely from the Payment Account and shall be payable on
each Distribution Date only to the extent that the Trust has funds then
on hand and immediately available by 12:30 p.m. on each Distribution
Date in the Payment Account for the payment of such Distributions.
(d) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders thereof as they appear
on the Securities Register for the Trust Securities on the relevant
record date, which shall be the 15th day of March, June, September or
December for Distributions payable on the last calendar day of the
respective month; provided, however, that for any Trust Securities held
in global form, Distributions shall be payable to the Holder thereof as
of one Business Day immediately preceding the Distribution Date.
SECTION 402. REDEMPTION.
(a) On each Debenture Redemption Date and on the maturity of the
Debentures, the Trust shall be required to redeem a Like Amount of
Trust Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property Trustee
by first-class mail, postage prepaid, mailed not less than 30 nor more
than 60 days prior to the Redemption Date to each Holder of Trust
Securities to be redeemed, at such Holder's address appearing in the
Securities Register. The Property Trustee shall have no responsibility
for the accuracy of any CUSIP number contained in such notice. All
notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the CUSIP number;
18
(iv) if less than all the Outstanding Trust Securities are
to be redeemed, the identification and the aggregate Liquidation Amount
of the particular Trust Securities to be redeemed;
(v) that, on the Redemption Date, the Redemption Price
shall become due and payable upon each such Trust Security to be
redeemed and that Distributions thereon shall cease to accumulate on and
after said date, except as provided in Section _____; and
(iv) the place or places at which Trust Securities are to be
surrendered for the payment of the Redemption Price.
(c) The Trust Securities redeemed on each Redemption Date shall
be redeemed at the Redemption Price with the proceeds from the
contemporaneous redemption of Debentures. Redemptions of the Trust
Securities shall be made and the Redemption Price shall be payable on
each Redemption Date only to the extent that the Trust has immediately
available funds then on hand and available in the Payment Account for
the payment of such Redemption Price.
(d) If the Property Trustee gives a notice of redemption in
respect of any Preferred Securities, then, by 12:00 noon, New York City
time, on the Redemption Date, subject to Section 402(c), the Property
Trustee, subject to Section 402(c), shall, with respect to Preferred
Securities held in global form, deposit with the Clearing Agency for
such Preferred Securities, to the extent available therefor, funds
sufficient to pay the applicable Redemption Price and will give such
Clearing Agency irrevocable instructions and authority to pay the
Redemption Price to the Holders of the Preferred Securities. With
respect to Trust Securities that are not held in global form, the
Property Trustee, subject to Section 402(c), shall deposit with the
Paying Agent funds sufficient to pay the applicable Redemption Price and
shall give the Paying Agent irrevocable instructions and authority to
pay the Redemption Price to the Holders thereof upon surrender of their
Preferred Securities Certificates. Notwithstanding the foregoing,
Distributions payable on or prior to the Redemption Date for any Trust
Securities called for redemption shall be payable to the Holders of such
Trust Securities as they appear on the Securities Register for the Trust
Securities on the relevant record dates for the related Distribution
Dates. If notice of redemption shall have been given and funds deposited
as required, then upon the date of such deposit, (i) all rights of
Securityholders holding Trust Securities so called for redemption shall
cease, except the right of such Securityholders to receive the
Redemption Price, but without interest, and (ii) such Securities shall
cease to be Outstanding. In the event that any date on which any Redemption
Price is payable is not a Business Day, then payment of the Redemption Price
payable on such date shall be made on the next succeeding day that is a
Business Day (and without any interest or other payment in respect of
any such delay) with the same
19
force and effect as if made on such date. In the event that payment of
the Redemption Price in respect of any Trust Securities called for
redemption is improperly withheld or refused and not paid either by the
Trust or by the Depositor pursuant to the Guarantee, Distributions on
such Trust Securities shall continue to accumulate, at the then
applicable rate, from the Redemption Date originally established by the
Trust for such Trust Securities to the date such Redemption Price is
actually paid, in which case the actual payment date shall be the date
fixed for redemption for purposes of calculating the Redemption Price.
(e) Payment of the Redemption Price on the Trust Securities
shall be made to the record holders thereof as they appear on the
Securities Register for the Trust Securities on the relevant record
date, which shall be the date 15 days prior to the relevant Redemption
Date; provided, however, that for any Trust Securities held in global form,
Distributions shall be payable to the Holder thereof as of one Business
Day immediately preceding the Distribution Date.
(f) Subject to Section 403(a), if less than all the Outstanding
Trust Securities are to be redeemed on a Redemption Date, then the
aggregate Liquidation Amount of Trust Securities to be redeemed shall be
allocated on a pro rata basis (based on Liquidation Amounts) among the
Common Securities and the Preferred Securities. The particular
Preferred Securities to be redeemed shall be selected not more than 60
days prior to the Redemption Date by the Property Trustee from the
Outstanding Preferred Securities not previously called for redemption,
by such method (including, without limitation, by lot) as the Property
Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to such Liquidation
Amount or an integral multiple of such Liquidation Amount in excess
thereof) of the Liquidation Amount of Preferred Securities of a denomination
larger than the Liquidation Amount; provided, however, that in the event
the redemption relates only to Preferred Securities purchased and held by
the Depositor being redeemed in exchange for a Like Amount of Debentures,
the Property Trustee shall select those particular Preferred Securities
for redemption. The Property Trustee shall promptly notify the Securities
Registrar in writing of the Preferred Securities selected for redemption and,
in the case of any Preferred Securities selected for partial redemption,
the Liquidation Amount thereof to be redeemed, it being understood that, in
the case of Preferred Securities registered in the name of and held of record
by the Clearing Agency or its nominee, the distribution of the proceeds of
such redemption will be made in accordance with the procedures of the Clearing
Agency or its nominee. For all purposes of this Trust Agreement, unless the
context otherwise requires, all provisions relating to the redemption of
Preferred Securities shall relate, in the case of any Preferred Securities
redeemed or to be redeemed only in part, to the portion of the Liquidation
Amount of Preferred Securities which has been or is to be redeemed, it being
understood that, in the case of Preferred Securities registered in the name
of and held of record by the Clearing Agency or its nominee, the distribution
of the proceeds of such redemption will be made in accordance with the
procedures of the Clearing Agency or its nominee.
SECTION 403. SUBORDINATION OF COMMON SECURITIES.
(a) Payment of Distributions (including Additional Amounts, if
applicable) on, and the Redemption Price of, the Trust Securities, as
applicable, shall be made, subject to Section 402(f), pro rata among the
Common Securities and the Preferred Securities based on the Liquidation
Amount of the Trust Securities; provided, however, that if on any
Distribution Date or Redemption Date any Event of Default resulting from
a Debenture Event of Default shall have occurred and be continuing, no
payment of any Distribution (including Additional Amounts, if
applicable) on, or Redemption Price of, any Common Security, and no
other payment on account of the redemption, liquidation or other
acquisition of Common Securities, shall be made unless payment in full
in cash of all accumulated and unpaid Distributions (including
Additional Amounts, if applicable) on all Outstanding Preferred
Securities for all Distribution periods terminating on or prior thereto,
or in the case of payment of the Redemption Price the full amount of
such Redemption Price on all Outstanding Preferred Securities then
called for redemption, shall have been made or provided for,
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and all funds immediately available to the Property Trustee shall first
be applied to the payment in full in cash of all Distributions
(including Additional Amounts, if applicable) on, or the Redemption
Price of, Preferred Securities then due and payable.
(b) In the case of the occurrence of any Event of Default
resulting from a Debenture Event of Default, the Common Securityholders
shall be deemed to have waived any right to act with respect to any such
Event of Default under this Trust Agreement until the effect of all such
Events of Default with respect to the Preferred Securities shall have
been cured, waived or otherwise eliminated. Until any such Event of
Default under this Trust Agreement with respect to the Preferred
Securities shall have been so cured, waived or otherwise eliminated, the
Property Trustee shall act solely on behalf of the Preferred
Securityholders and not the Common Securityholder, and only the
Preferred Securityholders shall have the right to direct the Property
Trustee to act on their behalf.
SECTION 404. PAYMENT PROCEDURES.
Payments of Distributions (including Additional Amounts, if
applicable) in respect of the Preferred Securities shall be made by
check mailed to the address of the Person entitled thereto as such
address shall appear on the Securities Register or, if the Preferred
Securities are held by a Clearing Agency, such Distributions shall be
made to the Clearing Agency in immediately available funds, which will
credit the relevant accounts on the applicable Distribution Dates.
Payments in respect of the Common Securities shall be made in such
manner as shall be mutually agreed between the Property Trustee and the
Common Securityholder.
SECTION 405. TAX RETURNS AND REPORTS.
The Administrative Trustees shall prepare (or cause to be
prepared), at the Depositor's expense, and file all United States
federal, state and local tax and information returns and reports
required to be filed by or in respect of the Trust. In this regard, the
Administrative Trustees shall (a) prepare and file (or cause to be
prepared and filed) the appropriate Internal Revenue Service forms
required to be filed in respect of the Trust in each taxable year of the
Trust; and (b) prepare and furnish (or cause to be prepared and
furnished) to each Securityholder the appropriate Internal Revenue
Service forms required to be furnished to such Securityholder or the
information required to be provided on such forms. The Administrative
Trustees shall provide the Depositor with a copy of all such returns and
reports promptly after such filing or furnishing. The Property Trustee
shall comply with United States federal withholding and backup
withholding tax laws and information reporting requirements with respect
to any payments to Securityholders under the Trust Securities.
SECTION 406. PAYMENT OF TAXES, DUTIES, ETC. OF THE TRUST.
Upon receipt under the Debentures of Additional Payments, the
Property Trustee, at the direction of an Administrative Trustee or
the Depositor, shall
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promptly pay any taxes, duties or governmental charges of whatsoever
nature (other than withholding taxes) imposed on the Trust by the United
States or any other taxing authority.
SECTION 407. PAYMENTS UNDER INDENTURE.
Any amount payable hereunder to any Preferred Securityholder shall
be reduced by the amount of any corresponding payment such Holder has
directly received under the Indenture pursuant to Section 513(b) or (c)
hereof.
ARTICLE V
TRUST SECURITIES CERTIFICATES
SECTION 501. INITIAL OWNERSHIP.
Upon the creation of the Trust and the contribution by the
Depositor pursuant to Section 203 and until the issuance of the Trust
Securities, and at any time during which no Trust Securities are
Outstanding, the Depositor shall be the sole beneficial owner of the
Trust.
SECTION 502. THE TRUST SECURITIES CERTIFICATES.
The Preferred Securities Certificates shall be issued in minimum
denominations of the Liquidation Amount and integral multiples of the
Liquidation Amount in excess thereof, and the Common Securities
Certificates shall be issued in denominations of the Liquidation Amount
and multiples thereof (which may, in the case of the Common Securities,
include fractional amounts). The Trust Securities Certificates shall be
executed on behalf of the Trust by manual or facsimile signature of at
least one Administrative Trustee. Trust Securities Certificates bearing
the manual or facsimile signatures of individuals who were, at the time
when such signatures shall have been affixed, authorized to sign on
behalf of the Trust, shall be validly issued and entitled to the
benefits of this Trust Agreement, notwithstanding that such individuals
or any of them shall have ceased to be so authorized prior to the
delivery of such Trust Securities Certificates or did not hold such
offices at the date of delivery of such Trust Securities Certificates.
A transferee of a Trust Securities Certificate shall become a
Securityholder, and shall be entitled to the rights and subject to the
obligations of a Securityholder hereunder, upon due registration of such
Trust Securities Certificate in such transferee's name pursuant to
Sections 504, 511 and 513.
SECTION 503. EXECUTION, AUTHENTICATION AND DELIVERY OF TRUST
SECURITIES CERTIFICATES.
(a) On the Closing Date and, if applicable, the Option Closing
Date, the Administrative Trustees shall cause Trust Securities
Certificates, in an aggregate Liquidation Amount as provided in
Sections 204 and 205, to be executed on behalf of the Trust by at least
one of the Administrative Trustees and delivered to or upon the written
order of the Depositor, signed by its Chief Executive
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Officer, President, any Vice President, the Treasurer or any Assistant
Treasurer without further corporate action by the Depositor, in
authorized denominations.
(b) A Preferred Securities Certificate shall not be valid until
authenticated by the manual signature of an authorized signatory of the
Property Trustee. The signature shall be conclusive evidence that the
Preferred Securities Certificate has been authenticated under this Trust
Agreement. Each Preferred Security Certificate shall be dated the date
of its authentication.
Upon the written order of the Trust signed by one of the
Administrative Trustees, the Property Trustee shall authenticate and make
available for delivery the Preferred Securities Certificates.
The Property Trustee may appoint an Authenticating Agent
acceptable to the Trust to authenticate the Preferred Securities. An
Authenticating Agent may authenticate the Preferred Securities whenever
the Property Trustee may do so. Each reference in this Trust Agreement
to authentication by the Property Trustee includes authentication by
such agent. An Authenticating Agent has the same rights as the Property
Trustee to deal with the Company or the Trust.
SECTION 503A. GLOBAL PREFERRED SECURITY.
(a) Any Global Preferred Security issued under this Trust
Agreement shall be registered in the name of the nominee of the Clearing
Agency and delivered to such custodian therefor, and such Global
Preferred Security shall constitute a single Preferred Security for all
purposes of this Trust Agreement.
(b) Notwithstanding any other provision in this Trust Agreement,
no Global Preferred Security may be exchanged for Preferred Securities
registered in the names of persons other than the Depositary or its
nominee unless (i) the Depositary notifies the Property Trustee that it
is unwilling or unable to continue as a depositary for such Global
Preferred Securities and the Depositor is unable to locate a qualified
successor depositary, (ii) the Depositor executes and delivers to the
Property Trustee a written order stating that it elects to terminate
the book-entry system through the Depositary or (iii) there shall have
occurred and be continuing a Debenture Event of Default.
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(c) Every Preferred Security executed, authenticated and
delivered upon registration of transfer of, or in exchange for or in
lieu of, a Global Preferred Security or any portion thereof, whether
pursuant to this Article V or otherwise, shall be executed,
authenticated and delivered in the form of, and shall be, a Global
Preferred Security, unless such Global Preferred Security is registered
in the name of a Person other than the Clearing Agency for such Global
Preferred Security or a nominee thereof.
(d) The Clearing Agency or its nominee, as the registered owner
of a Global Preferred Security, shall be considered the Holder of the
Preferred Securities represented by such Global Preferred Security for
all purposes under this Trust Agreement and the Preferred Securities,
and owners of beneficial interests in such Global Preferred Security
shall hold such interests pursuant to the Applicable Procedures and,
except as otherwise provided herein, shall not be entitled to receive
physical delivery of any such Preferred Securities in definitive form
and shall not be considered the Holders thereof under this Trust
Agreement. Accordingly, any such owner's beneficial interest in the
Global Preferred Securities shall be shown only on, and the transfer of
such interest shall be effected only through, records maintained by the
Clearing Agency or its nominee. Neither the Property Trustee, the
Securities Registrar nor the Depositor shall have any liability in
respect of any transfers effected by the Clearing Agency.
(e) The rights of owners of beneficial interests in a Global
Preferred Security shall be exercised only through the Clearing Agency
and shall be limited to those established by law and agreements between
such owners and the Clearing Agency.
SECTION 504. REGISTRATION OF TRANSFER AND EXCHANGE OF PREFERRED
SECURITIES CERTIFICATES.
(a) The Depositor shall keep or cause to be kept, at the office
or agency maintained pursuant to Section 508, a register or registers
for the purpose of registering Trust Securities Certificates and,
subject to the provisions of Section 503A, transfers and exchanges of
Preferred Securities Certificates (herein referred to as the "Securities
Register") in which the registrar designated by the Depositor (the
"Securities Registrar"), subject to such reasonable regulations as it
may prescribe, shall provide for the registration of Preferred
Securities Certificates and Common Securities Certificates (subject to
Section 510 in the case of the Common Securities Certificates) and
registration of transfers and exchanges of Preferred Securities
Certificates as herein provided. The Property Trustee shall be the
initial Securities Registrar.
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(b) Subject to the provisions of Section 503A, upon surrender for
registration of transfer of any Preferred Securities Certificate at the
office or agency maintained pursuant to Section 508, the Administrative
Trustees or any one of them shall execute and deliver, in the name of
the designated transferee or transferees, one or more new Preferred
Securities Certificates in authorized denominations of a like aggregate
Liquidation Amount dated the date of execution by such Administrative
Trustee or Trustees. The Securities Registrar shall not be required to
register the transfer of any Preferred Securities that have been called
for redemption. At the option of a Holder, Preferred Securities
Certificates may be exchanged for other Preferred Securities
Certificates in authorized denominations of the same class and of a like
aggregate Liquidation Amount upon surrender of the Preferred Securities
Certificates to be exchanged at the office or agency maintained pursuant
to Section 508.
(c) Every Preferred Securities Certificate presented or
surrendered for registration of transfer or exchange, subject to the
provisions of Section 503A, shall be accompanied by a written instrument
of transfer in form satisfactory to the Property Trustee and the
Securities Registrar duly executed by the Holder or his attorney duly
authorized in writing. Each Preferred Securities Certificate
surrendered for registration of transfer or exchange shall be canceled
and subsequently disposed of by the Property Trustee in accordance with
its customary practice. The Trust shall not be required to (i) issue,
register the transfer of, or exchange any Preferred Securities during a
period beginning at the opening of business 15 calendar days before the
date of mailing of a notice of redemption of any Preferred Securities
called for redemption and ending at the close of business on the day of
such mailing; or (ii) register the transfer of or exchange any Preferred
Securities so selected for redemption, in whole or in part, except the
unredeemed portion of any such Preferred Securities being redeemed in
part.
(d) No service charge shall be made for any registration of
transfer or exchange of Preferred Securities Certificates, subject to
the provisions of Section 503A, but the Securities Registrar may require
payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer or exchange of Preferred
Securities Certificates.
(e) Preferred Securities may only be transferred, in whole or in
part, in accordance with the terms and conditions set forth in this
Trust Agreement. Any transfer or purported transfer of any Preferred
Security not made in accordance with this Trust Agreement shall be null
and void. A Preferred Security that is not a Global Preferred Security
may be transferred, in whole or in part, to a Person who takes delivery
in the form of another Preferred Security that is not a Global Preferred
Security as provided in Section 504(a). A beneficial interest in a
Global Preferred Security may be exchanged for a Preferred Security that
is not a Global Preferred Security only as provided in Section 503A.
SECTION 505. MUTILATED, DESTROYED, LOST OR STOLEN TRUST
SECURITIES CERTIFICATES.
If (a) any mutilated Trust Securities Certificate shall be
surrendered to the Securities Registrar, or if the Securities Registrar
shall receive evidence to its satisfaction of the destruction,
25
loss or theft of any Trust Securities Certificate, and (b) there shall
be delivered to the Securities Registrar and the Administrative Trustees
such security or indemnity as may be required by them to save each of
them harmless, then in the absence of notice that such Trust Securities
Certificate shall have been acquired by a bona fide purchaser, the
Administrative Trustees, or any one of them, on behalf of the Trust
shall execute and make available for delivery, in exchange for or in
lieu of any such mutilated, destroyed, lost or stolen Trust Securities
Certificate, a new Trust Securities Certificate of like class, tenor and
denomination. In connection with the issuance of any new Trust
Securities Certificate under this Section 505, the Administrative
Trustees or the Securities Registrar may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in connection therewith. Any duplicate Trust Securities
Certificate issued pursuant to this Section 505 shall constitute
conclusive evidence of an undivided beneficial interest in the assets of
the Trust, as if originally issued, whether or not the lost, stolen or
destroyed Trust Securities Certificate shall be found at any time.
SECTION 506. PERSONS DEEMED SECURITYHOLDERS.
The Trustees, the Paying Agent and the Securities Registrar shall
treat the Person in whose name any Trust Securities Certificate shall be
registered in the Securities Register as the owner of such Trust
Securities Certificate for the purpose of receiving Distributions and
for all other purposes whatsoever, and neither the Trustees nor the
Securities Registrar shall be bound by any notice to the contrary.
SECTION 507. ACCESS TO LIST OF SECURITYHOLDERS' NAMES AND
ADDRESSES.
At any time when the Property Trustee is not also acting as the
Securities Registrar, the Administrative Trustees or the Depositor shall
furnish or cause to be furnished to the Property Trustee (a) within five
Business Days after March 15, June 15, September 15, and December 15 in
each year, a list, in such form as the Property Trustee may reasonably
require, of the names and addresses of the Securityholders as of the most
recent record date; and (b) promptly after receipt by any Administrative
Trustee or the Depositor of a request therefor from the Property Trustee
in order to enable the Property Trustee to discharge its obligations under
this Trust Agreement, in each case to the extent such information is in
the possession or control of the Administrative Trustees or the Depositor
and is not identical to a previously supplied list or has not otherwise
been received by the Property Trustee in its capacity as Securities
Registrar. The rights of Securityholders to communicate with other
Securityholders with respect to their rights under this Trust Agreement
or under the Trust Securities and the corresponding rights of the
Trustee shall be as provided in the Trust Indenture Act. Each Holder,
by receiving and holding a Trust Securities Certificate, and each owner
shall be deemed to have agreed not to hold the Depositor, the Property
Trustee or the Administrative Trustees accountable by reason of the
disclosure of its name and address, regardless of the source from which
such information was derived.
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SECTION 508. MAINTENANCE OF OFFICE OR AGENCY.
The Administrative Trustees shall maintain or cause to be
maintained in The City of New York or other location designated by the
Administrative Trustees, an office or offices or agency or agencies
where Preferred Securities Certificates may be surrendered for
registration of transfer or exchange and where notices and demands to or
upon the Trustees in respect of the Trust Securities Certificates may be
served. The Administrative Trustees initially designate the Corporate
Trust Office of the Property Trustee, 225 Asylum Street, Goodwin Square,
Hartford, Connecticut 06103, as the principal corporate trust office for
such purposes. The Administrative Trustees shall give prompt written
notice to the Depositor and to the Securityholders of any change in the
location of the Securities Register or any such office or agency.
SECTION 509. APPOINTMENT OF PAYING AGENT.
The Property Trustee shall be the initial Paying Agent, and
any co-paying agent chosen by the Property Trustee must be acceptable
to the Administrative Trustees and the Depositor. The Paying
Agent shall make Distributions to Securityholders from the Payment
Account and shall report the amounts of such Distributions to the
Property Trustee and the Administrative Trustees. Any Paying Agent
shall have the revocable power to withdraw funds from the Payment
Account for the purpose of making the Distributions referred to above.
The Administrative Trustees may revoke such power and remove the Paying
Agent if such Trustees determine in their sole discretion that the
Paying Agent shall have failed to perform its obligations under this
Trust Agreement in any material respect. The Paying Agent shall
initially be the Property Trustee, and any co-paying agent chosen by the
Property Trustee must be acceptable to the Administrative Trustees and
the Depositor. Any Person acting as Paying Agent shall be permitted to
resign as Paying Agent upon 30 days' written notice to the
Administrative Trustees, the Property Trustee and the Depositor. In the
event that the Property Trustee shall no longer be the Paying Agent or a
successor Paying Agent shall resign or its authority to act be revoked,
the Administrative Trustees shall appoint a successor (which shall be a
bank or trust company) that is acceptable to the Property Trustee and
the Depositor to act as Paying Agent. The Administrative Trustees shall
cause such successor Paying Agent or any additional Paying Agent
appointed by the Administrative Trustees to execute and deliver to the
Trustees an instrument in which such successor Paying Agent or
additional Paying Agent shall agree with the Trustees that as Paying
Agent, such successor Paying Agent or additional Paying Agent shall hold
all sums, if any, held by it for payment to the Securityholders in trust
for the benefit of the Securityholders entitled thereto until such sums
shall be paid to such Securityholders. The Paying Agent shall return
all unclaimed funds to the Property Trustee and, upon removal of a
Paying Agent, such Paying Agent shall also return all funds in its
possession to the Property Trustee. The provisions of Sections 801, 803
and 806 shall apply to the Property Trustee also in its role as Paying
Agent, for so long as the Property Trustee shall act as Paying Agent
and, to the extent applicable, to any other paying agent appointed
hereunder. Any reference in this Agreement to the Paying Agent shall
include any co-paying agent unless the context requires otherwise.
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SECTION 510. OWNERSHIP OF COMMON SECURITIES BY DEPOSITOR.
On the Closing Date, the Depositor shall acquire and retain
beneficial and record ownership of the Common Securities. To the
fullest extent permitted by law, any attempted transfer of the Common
Securities (other than a transfer in connection with a merger or
consolidation of the Depositor into another corporation pursuant to
Section 12.1 of the Indenture) shall be void. The Administrative
Trustees shall cause each Common Securities Certificate issued to the
Depositor to contain a legend stating "THIS CERTIFICATE IS NOT
TRANSFERABLE."
SECTION 511. PREFERRED SECURITIES CERTIFICATES.
(a) Upon their original issuance, Preferred Securities
Certificates shall be issued in the form of one or more fully registered
Global Preferred Securities Certificates which will be deposited with or
on behalf of the Clearing Agency and registered in the name of the
Clearing Agency's nominee. Unless and until it is exchangeable in whole
or in part for the Preferred Securities in definitive form, a global
security may not be transferred except as a whole by the Clearing Agency
to a nominee of the Clearing Agency or by a nominee of the Clearing
Agency to the Clearing Agency or another nominee of the Clearing Agency
or by the Clearing Agency or any such nominee to a successor of such
Clearing Agency or a nominee of such successor.
(b) A single Common Securities Certificate representing the
Common Securities shall be issued to the Depositor in the form of a
definitive Common Securities Certificate.
SECTION 512. NOTICES TO CLEARING AGENCIES.
To the extent that a notice or other communication to the Holders
is required under this Trust Agreement, for so long as Preferred
Securities are represented by a Global Preferred Securities Certificate,
the Trustees shall give all such notices and communications specified
herein to be given to the Clearing Agency, and shall have no obligation
to provide notice to the owners of the beneficial interest in the Global
Preferred Securities.
SECTION 513. RIGHTS OF SECURITYHOLDERS.
(a) The legal title to the Trust Property is vested exclusively
in the Property Trustee (in its capacity as such) in accordance with
Section 209, and the Securityholders shall not have any right or title
therein other than the undivided beneficial interest in the assets of
the Trust conferred by their Trust Securities, and they shall have no
right to call for any partition or division of property, profits or
rights of the Trust except as described below. The Trust Securities
shall be personal property giving only the rights specifically set forth
therein and in this Trust Agreement. The Trust Securities shall have no
preemptive or similar rights. When issued and delivered to Preferred
Securityholders against payment of the purchase price therefor, the
Preferred Securities shall be fully paid and nonassessable interests in
the Trust. The Preferred Securityholders, in their capacities as such,
shall be entitled to the same limitation of personal liability extended
to stockholders of
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private corporations for profit organized under the General Corporation
Law of the State of Delaware.
(b) For so long as any Preferred Securities remain Outstanding,
if, upon a Debenture Event of Default, the Debenture Trustee fails or
the holders of not less than 25% in principal amount of the outstanding
Debentures fail to declare the principal of all of the Debentures to be
immediately due and payable, the Holders of at least 25% in Liquidation
Amount of the Preferred Securities then Outstanding shall have such
right by a notice in writing to the Depositor and the Debenture Trustee;
and upon any such declaration such principal amount of and the accrued
interest on all of the Debentures shall become immediately due and
payable, provided that the payment of principal and interest on such
Debentures shall remain subordinated to the extent provided in the
Indenture.
(c) For so long as any Preferred Securities remain Outstanding,
upon a Debenture Event of Default arising from the failure to pay
interest or principal on the Debentures, the Holders of any Preferred
Securities then Outstanding shall, to the fullest extent permitted by
law, have the right to directly institute proceedings for enforcement of
payment to such Holders of principal of or interest on the Debentures
having a principal amount equal to the Liquidation Amount of the
Preferred Securities of such Holders.
ARTICLE VI
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
SECTION 601. LIMITATIONS ON VOTING RIGHTS.
(a) Except as provided in this Section 601, in Sections 513, 810
and 1002 and in the Indenture and as otherwise required by law, no
Preferred Securityholder shall have any right to vote or in any manner
otherwise control the administration, operation and management of the
Trust or the obligations of the parties hereto, nor shall anything
herein set forth, or contained in the terms of the Trust Securities
Certificates, be construed so as to constitute the Securityholders from
time to time as partners or members of an association.
(b) So long as any Debentures are held by the Property Trustee,
the Trustees shall not (i) direct the time, method and place of
conducting any proceeding for any remedy available to the Debenture
Trustee, or executing any trust or power conferred on the Debenture
Trustee with respect to such Debentures; (ii) waive any past default
which is waivable under Article VII of the Indenture; (iii) exercise any
right to rescind or annul a declaration that the principal of all the
Debentures shall be due and payable; or (iv) consent to any amendment,
modification or termination of the Indenture or the Debentures, where
such consent shall be required, without, in each case, obtaining the
prior approval of the Holders of at least a majority in Liquidation
Amount of all Outstanding Preferred Securities; provided, however, that
where a consent under the Indenture would require the consent of each
holder of outstanding Debentures affected thereby, no such consent shall
be given by the Property Trustee without the prior written consent of
each Preferred Securityholder. The Trustees
29
shall not revoke any action previously authorized or approved by a vote
of the Preferred Securityholders, except by a subsequent vote of the
Preferred Securityholders. The Property Trustee shall notify each
Preferred Securityholder of any notice of default received from the
Debenture Trustee with respect to the Debentures. In addition to
obtaining the foregoing approvals of the Preferred Securityholders,
prior to taking any of the foregoing actions, the Trustees shall, at the
expense of the Depositor, obtain an Opinion of Counsel experienced in
such matters to the effect that the Trust shall continue to be
classified as a grantor trust and not as an association taxable as a
corporation for United States federal income tax purposes on account of
such action.
(c) If any proposed amendment to the Trust Agreement provides
for, or the Trustees otherwise propose to effect, (i) any action that
would adversely affect in any material respect the powers, preferences
or special rights of the Preferred Securities, whether by way of
amendment to the Trust Agreement or otherwise; or (ii) the dissolution,
winding-up or termination of the Trust, other than pursuant to the terms
of this Trust Agreement, then the Holders of Outstanding Preferred
Securities as a class shall be entitled to vote on such amendment or
proposal and such amendment or proposal shall not be effective except
with the approval of the Holders of, with respect to matters described
in (i) above, at least 66 2/3% in Liquidation Amount of the Outstanding
Preferred Securities and with respect to matters described in (ii)
above, at least a majority in Liquidation Amount of the Outstanding
Preferred Securities. No amendment to this Trust Agreement may be made
if, as a result of such amendment, the Trust would cease to be
classified as a grantor trust or would be classified as an association
taxable as a corporation for United States federal income tax purposes.
SECTION 602. NOTICE OF MEETINGS.
Notice of all meetings of the Preferred Securityholders, stating
the time, place and purpose of the meeting, shall be given by the
Property Trustee pursuant to Section 1008 to each Preferred
Securityholder of record, at his registered address, at least 15 days
and not more than 90 days before the meeting. At any such meeting, any
business properly before the meeting may be so considered whether or not
stated in the notice of the meeting. Any adjourned meeting may be held
as adjourned without further notice.
SECTION 603. MEETINGS OF PREFERRED SECURITYHOLDERS.
(a) No annual meeting of Securityholders is required to be held.
The Administrative Trustees, however, shall call a meeting of
Securityholders to vote on any matter in respect of which Preferred
Securityholders are entitled to vote upon the written request of the
Preferred Securityholders of 25% of the Outstanding Preferred Securities
(based upon their aggregate Liquidation Amount) and the Administrative
Trustees or the Property Trustee may, at any time in their discretion,
call a meeting of Preferred Securityholders to vote on any matters as to
which the Preferred Securityholders are entitled to vote.
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(b) Preferred Securityholders of record of 50% of the Outstanding
Preferred Securities (based upon their aggregate Liquidation Amount),
present in person or by proxy, shall constitute a quorum at any meeting
of Securityholders.
(c) If a quorum is present at a meeting, an affirmative vote by
the Preferred Securityholders of record present, in person or by proxy,
holding more than a majority of the Preferred Securities (based upon
their aggregate Liquidation Amount) held by the Preferred
Securityholders of record present, either in person or by proxy, at such
meeting shall constitute the action of the Securityholders, unless this
Trust Agreement requires a greater number of affirmative votes.
SECTION 604. VOTING RIGHTS.
Securityholders shall be entitled to one vote for each $25 of
Liquidation Amount represented by their Trust Securities (with any
fractional multiple thereof rounded up or down as the case may be to the
closest integral multiple) in respect of any matter as to which such
Securityholders are entitled to vote.
SECTION 605. PROXIES, ETC.
At any meeting of Securityholders, any Securityholder entitled to
vote thereat may vote by proxy, provided that no proxy shall be voted at
any meeting unless it shall have been placed on file with the
Administrative Trustees, or with such other officer or agent of the
Trust as the Administrative Trustees may direct, for verification prior
to the time at which such vote shall be taken. Only Holders shall be
entitled to vote. When Trust Securities are held jointly by several
persons, any one of them may vote at any meeting in person or by proxy
in respect of such Trust Securities, but if more than one of them shall
be present at such meeting in person or by proxy, and such joint owners
or their proxies so present disagree as to any vote to be cast, such
vote shall not be received in respect of such Trust Securities. A proxy
purporting to be executed by or on behalf of a Securityholder shall be
deemed valid unless challenged at or prior to its exercise, and, the
burden of proving invalidity shall rest on the challenger. No proxy
shall be valid more than three years after its date of execution.
SECTION 606. SECURITYHOLDER ACTION BY WRITTEN CONSENT.
Any action which may be taken by Securityholders at a meeting may
be taken without a meeting if Securityholders holding more than a
majority of all Outstanding Trust Securities (based upon their aggregate
Liquidation Amount) entitled to vote in respect of such action (or such
larger proportion thereof as shall be required by any express provision
of this Trust Agreement) shall consent to the action in writing (based
upon their aggregate Liquidation Amount).
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SECTION 607. RECORD DATE FOR VOTING AND OTHER PURPOSES.
For the purposes of determining the Securityholders who are
entitled to notice of and to vote at any meeting or by written consent,
or to participate in any Distribution on the Trust Securities in respect
of which a record date is not otherwise provided for in this Trust
Agreement, or for the purpose of any other action, the Administrative
Trustees or the Property Trustee may from time to time fix a date, not
more than 90 days prior to the date of any meeting of Securityholders or
the payment of Distribution or other action, as the case may be, as a
record date for the determination of the identity of the Securityholders
of record for such purposes.
SECTION 608. ACTS OF SECURITYHOLDERS.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Trust
Agreement to be given, made or taken by Securityholders may be embodied
in and evidenced by one or more instruments of substantially similar
tenor signed by such Securityholders in person or by an agent duly
appointed in writing; and, except as otherwise expressly provided
herein, such action shall become effective when such instrument or
instruments are delivered to an Administrative Trustee. Such instrument
or instruments (and the action embodied therein and evidenced thereby)
are herein sometimes referred to as the "Act" of the Securityholders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Trust Agreement and (subject to Section 801)
conclusive in favor of the Trustees, if made in the manner provided in
this Section 608.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of
such execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer acting in a
capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority. The
fact and date of the execution of any such instrument or writing, or the
authority of the Person executing the same, may also be proved in any
other manner which any Trustee receiving the same deems sufficient.
(c) The ownership of Preferred Securities shall be proved by the
Securities Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Securityholder of any Trust Security
shall bind every future Securityholder of the same Trust Security and
the Securityholder of every Trust Security issued upon the registration
of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustees
or the Trust in reliance thereon, whether or not notation of such action
is made upon such Trust Security.
(e) Without limiting the foregoing, a Securityholder entitled
hereunder to take any action hereunder with regard to any particular
Trust Security may do so with regard to all or any part of the
Liquidation Amount of such Trust Security or by one or more duly
appointed agents, each of
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which may do so pursuant to such appointment with regard to all or any
part of such liquidation amount.
(f) A Securityholder may institute a legal proceeding directly
against the Depositor under the Guarantee to enforce its rights under
the Guarantee without first instituting a legal proceeding against the
Guarantee Trustee (as defined in the Guarantee), the Trust or any
Person.
SECTION 609. INSPECTION OF RECORDS.
Upon reasonable notice to the Administrative Trustees and the
Property Trustee, the records of the Trust shall be open to inspection
at the principal executive office of the Trust (as indicated in Section
202) by Holders of the Trust Securities during normal business hours for
any purpose reasonably related to such Securityholder's interest as a
Securityholder.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
SECTION 701. REPRESENTATIONS AND WARRANTIES OF THE BANK AND THE
PROPERTY TRUSTEE.
The Bank and the Property Trustee, each severally on behalf of and
as to itself, as of the date hereof, and each successor Property Trustee
at the time of the successor Property Trustee's acceptance of its
appointment as Property Trustee hereunder (the term "Bank" being used to
refer to such successor Property Trustee in its separate corporate
capacity) hereby represents and warrants (as applicable) for the benefit
of the Depositor and the Securityholders that:
(a) the Bank is a national banking association duly organized,
validly existing and in good standing under the laws of the United States
of America;
(b) the Bank has full corporate power, authority and legal right
to execute, deliver and perform its obligations under this Trust
Agreement and has taken all necessary action to authorize the execution,
delivery and performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed and
delivered by the Property Trustee and constitutes the valid and legally
binding agreement of the Property Trustee enforceable against it in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles;
(d) the execution, delivery and performance by the Property
Trustee of this Trust Agreement has been duly authorized by all
necessary corporate or other action on the part of the Property Trustee
and does not require any approval of stockholders of the Bank, and such
execution, delivery and performance shall not (i) violate the Bank's
charter or by-laws; (ii) violate any provision
33
of, or constitute, with or without notice or lapse of time, a default
under, or result in the creation or imposition of, any Lien on any
properties included in the Trust Property pursuant to the provisions of,
any indenture, mortgage, credit agreement, license or other agreement or
instrument to which the Property Trustee or the Bank is a party or by
which it is bound; or (iii) violate any law, governmental rule or
regulation of the United States or the State of Connecticut, as
the case may be, governing the banking or trust powers of the Bank or
the Property Trustee (as appropriate in context) or any order, judgment
or decree applicable to the Property Trustee or the Bank;
(e) neither the authorization, execution or delivery by the
Property Trustee of this Trust Agreement nor the consummation of any of
the transactions by the Property Trustee contemplated herein or therein
requires the consent or approval of, the giving of notice to, the
registration with or the taking of any other action with respect to any
governmental authority or agency under any existing federal law
governing the banking or trust powers of the Bank or the Property
Trustee, as the case may be, under the laws of the United States or the
State of Connecticut;
(f) there are no proceedings pending or, to the best of the
Property Trustee's knowledge, threatened against or affecting the Bank
or the Property Trustee in any court or before any governmental
authority, agency or arbitration board or tribunal which, individually
or in the aggregate, would materially and adversely affect the Trust or
would question the right, power and authority of the Property Trustee to
enter into or perform its obligations as one of the Trustees under this
Trust Agreement; and
(g) the Property Trustee is a Person eligible pursuant to the
Trust Indenture Act to act as such and has (or the obligations of which
are guaranteed by an entity having) a combined capital and surplus of
at least $50,000,000.
SECTION 702. REPRESENTATIONS AND WARRANTIES OF THE DELAWARE BANK
AND THE DELAWARE TRUSTEE.
The Delaware Bank and the Delaware Trustee, each severally on
behalf of and as to itself, as of the date hereof, and each successor
Delaware Trustee at the time of the successor Delaware Trustee's
acceptance of appointment as Delaware Trustee hereunder (the term
"Delaware Bank" being used to refer to such successor Delaware Trustee
in its separate corporate capacity), hereby represents and warrants (as
applicable) for the benefit of the Depositor and the Securityholders
that:
(a) the Delaware Bank is a Delaware banking corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware;
(b) the Delaware Bank has full corporate power, authority and
legal right to execute, deliver and perform its obligations under this
Trust Agreement and has taken all necessary action to authorize the
execution, delivery and performance by it of this Trust Agreement;
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(c) this Trust Agreement has been duly authorized, executed and
delivered by the Delaware Trustee and constitutes the valid and legally
binding agreement of the Delaware Trustee enforceable against it in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors, rights and to general
equity principles;
(d) the execution, delivery and performance by the Delaware
Trustee of this Trust Agreement has been duly authorized by all
necessary corporate or other action on the part of the Delaware Trustee
and does not require any approval of stockholders of the Delaware Bank,
and such execution, delivery and performance shall not (i) violate the
Delaware Bank's charter or by-laws; (ii) violate any provision of, or
constitute, with or without notice or lapse of time, a default under, or
result in the creation or imposition of, any Lien on any properties
included in the Trust Property pursuant to the provisions of, any
indenture, mortgage, credit agreement, license or other agreement or
instrument to which the Delaware Bank or the Delaware Trustee is a party
or by which it is bound; or (iii) violate any law, governmental rule or
regulation of the United States or the State of Delaware, as the case
may be, governing the banking or trust powers of the Delaware Bank or
the Delaware Trustee (as appropriate in context) or any order, judgment
or decree applicable to the Delaware Bank or the Delaware Trustee;
(e) neither the authorization, execution or delivery by the
Delaware Trustee of this Trust Agreement nor the consummation of any of
the transactions by the Delaware Trustee contemplated herein or therein
requires the consent or approval of, the giving of notice to, the
registration with or the taking of any other action with respect to any
governmental authority or agency under any existing federal law
governing the banking or trust powers of the Delaware Bank or the
Delaware Trustee, as the case may be, under the laws of the United
States or the State of Delaware; and
(f) there are no proceedings pending or, to the best of the
Delaware Trustee's knowledge, threatened against or affecting the
Delaware Bank or the Delaware Trustee in any court or before any
governmental authority, agency or arbitration board or tribunal which,
individually or in the aggregate, would materially and adversely affect
the Trust or would question the right, power and authority of the
Delaware Trustee to enter into or perform its obligations as one of the
Trustees under this Trust Agreement.
SECTION 703. REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR.
The Depositor hereby represents and warrants for the benefit of
the Securityholders that:
(a) the Trust Securities Certificates issued on the Closing Date
or the Option Closing Date, if applicable, on behalf of the Trust have
been duly authorized and shall have been duly and validly executed,
issued and delivered by the Administrative Trustees pursuant to the
terms and provisions of, and in accordance with the requirements of,
this Trust Agreement, and the Securityholders shall be, as of such date,
entitled to the benefits of this Trust Agreement; and
35
(b) there are no taxes, fees or other governmental charges
payable by the Trust (or the Trustees on behalf of the Trust) under the
laws of the State of Delaware or any political subdivision thereof in
connection with the execution, delivery and performance by the Bank, the
Property Trustee or the Delaware Trustee, as the case may be, of this
Trust Agreement.
ARTICLE VIII
TRUSTEES
SECTION 801. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) The duties and responsibilities of the Trustees shall be as
provided by this Trust Agreement and, in the case of the Property
Trustee, by the Trust Indenture Act. Notwithstanding the foregoing, no
provision of this Trust Agreement shall require the Trustees to expend
or risk their own funds or otherwise incur any financial liability in
the performance of any of their duties hereunder, or in the exercise of
any of their rights or powers, if they shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. No
Administrative Trustee nor the Delaware Trustee shall be liable for its
act or omissions hereunder except as a result of its own gross
negligence or willful misconduct. The Property Trustee's liability
shall be determined under the Trust Indenture Act. Whether or not
therein expressly so provided, every provision of this Trust Agreement
relating to the conduct or affecting the liability of or affording
protection to the Trustees shall be subject to the provisions of this
Section 801. To the extent that, at law or in equity, the Delaware
Trustee or an Administrative Trustee has duties (including fiduciary
duties) and liabilities relating thereto to the Trust or to the
Securityholders, the Delaware Trustee or such Administrative Trustee
shall not be liable to the Trust or to any Securityholder for such
Trustee's good faith reliance on the provisions of this Trust Agreement.
The provisions of this Trust Agreement, to the extent that they restrict
the duties and liabilities of the Delaware Trustee or the Administrative
Trustees otherwise existing at law or in equity, are agreed by the
Depositor and the Securityholders to replace such other duties and
liabilities of the Delaware Trustee or the Administrative Trustees, as
the case may be.
(b) All payments made by the Property Trustee or a Paying Agent
in respect of the Trust Securities shall be made only from the revenue
and proceeds from the Trust Property and only to the extent that there
shall be sufficient revenue or proceeds from the Trust Property to
enable the Property Trustee or a Paying Agent to make payments in
accordance with the terms hereof. With respect to the relationship of
each Securityholder and the Trustees, each Securityholder, by its
acceptance of a Trust Security, agrees that it shall look solely to the
revenue and proceeds from the Trust Property to the extent legally
available for distribution to it as herein provided and that the
Trustees are not personally liable to it for any amount distributable in
respect of any Trust Security or for any other liability in respect of
any Trust Security. This Section 801(b) does not limit the liability of
the Trustees expressly set forth elsewhere in this Trust Agreement or,
in the case of the Property Trustee, in the Trust Indenture Act.
36
(c) No provision of this Trust Agreement shall be construed to
relieve the Property Trustee from liability for its own negligent
action, its own negligent failure to act, or its own willful misconduct,
except that:
(i) the Property Trustee shall not be liable for any error
of judgment made in good faith by an authorized officer of the Property
Trustee, unless it shall be proved that the Property Trustee was
negligent in ascertaining the pertinent facts;
(ii) the Property Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a majority
in Liquidation Amount of the Trust Securities relating to the time,
method and place of conducting any proceeding for any remedy available
to the Property Trustee, or exercising any trust or power conferred upon
the Property Trustee under this Trust Agreement;
(iii) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Debentures and
the Payment Account shall be to deal with such property in a similar
manner as the Property Trustee deals with similar property for its own
account, subject to the protections and limitations on liability
afforded to the Property Trustee under this Trust Agreement and the
Trust Indenture Act;
(iv) the Property Trustee shall not be liable for any
interest on any money received by it except as it may otherwise agree
with the Depositor and money held by the Property Trustee need not be
segregated from other funds held by it except in relation to the Payment
Account maintained by the Property Trustee pursuant to Section 301 and
except to the extent otherwise required by law; and
(v) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrative Trustees or the
Depositor with their respective duties under this Trust Agreement, nor
shall the Property Trustee be liable for the negligence, default or
misconduct of the Administrative Trustees or the Depositor.
SECTION 802. CERTAIN NOTICES.
(a) Within 5 Business Days after the occurrence of any Event of
Default actually known to the Property Trustee, the Property Trustee
shall transmit, in the manner and to the extent provided in
Section 1008, notice of such Event of Default to the Securityholders,
the Administrative Trustees and the Depositor, unless such Event of
Default shall have been cured or waived. For purposes of this Section
802 the term "Event of Default" means any event that is, or after notice
or lapse of time or both would become, an Event of Default.
(b) The Administrative Trustees shall transmit to the
Securityholders, in the manner and to the extent provided in
Section 1008, notice of the Depositor's election to begin or further
extend an Extension Payment Period on the Debentures (unless
such election shall have been
37
revoked) and of any election by the Depositor to accelerate the Maturity
Date of the Debentures within the time specified for transmitting such
notice to the holders of the Debentures pursuant to the Indenture as
originally executed.
SECTION 803. CERTAIN RIGHTS OF PROPERTY TRUSTEE.
Subject to the provisions of Section 801:
(a) the Property Trustee may rely and shall be protected in
acting or refraining from acting in good faith upon any resolution,
Opinion of Counsel, certificate, written representation of a Holder or
transferee, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) if (i) in performing its duties under this Trust Agreement
the Property Trustee is required to decide between alternative courses
of action; or (ii) in construing any of the provisions of this Trust
Agreement the Property Trustee finds the same ambiguous or inconsistent
with other provisions contained herein; or (iii) the Property Trustee is
unsure of the application of any provision of this Trust Agreement,
then, except as to any matter as to which the Preferred Securityholders
are entitled to vote under the terms of this Trust Agreement, the
Property Trustee shall deliver a notice to the Depositor requesting
written instructions of the Depositor as to the course of action to be
taken, and the Property Trustee shall take such action, or refrain from
taking such action, as the Property Trustee shall be instructed in
writing to take, or to refrain from taking, by the Depositor; provided,
however, that if the Property Trustee does not receive such instructions
of the Depositor within 10 Business Days after it has delivered such
notice, or such reasonably shorter period of time set forth in such
notice (which to the extent practicable shall not be less than 2
Business Days), it may, but shall be under no duty to, take or refrain
from taking such action not inconsistent with this Trust Agreement as it
shall deem advisable and in the best interests of the Securityholders,
in which event the Property Trustee shall have no liability except for
its own bad faith, negligence or willful misconduct;
(c) any direction or act of the Depositor or the Administrative
Trustees contemplated by this Trust Agreement shall be sufficiently
evidenced by an Officers' Certificate;
(d) whenever in the administration of this Trust Agreement, the
Property Trustee shall deem it desirable that a matter be established
before undertaking, suffering or omitting any action hereunder, the
Property Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part, request and
conclusively rely upon an Officer's Certificate which, upon receipt of
such request, shall be promptly delivered by the Depositor or the
Administrative Trustees;
38
(e) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any
financing or continuation statement or, except as provided in Section
405, any filing under tax or securities laws) or any rerecording,
refiling or reregistration thereof;
(f) the Property Trustee may consult with counsel of its choice
(which counsel may be counsel to the Depositor or any of its
Affiliates), and the advice of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon and, in
accordance with such advice, such counsel may be counsel to the
Depositor or any of its Affiliates, and may include any of its
employees; the Property Trustee shall have the right at any time to seek
instructions concerning the administration of this Trust Agreement from
any court of competent jurisdiction;
(g) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Trust
Agreement at the request or direction of any of the Securityholders
pursuant to this Trust Agreement, unless such Securityholders shall have
offered to the Property Trustee reasonable security or indemnity against
the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction; nothing contained herein shall,
however, relieve the Property Trustee of the obligation, upon the occurrence
of any Event of Default (that has not been waived) to exercise such of the
rights and powers vested in it by the Trust Agreement, and to use the same
degree of care and skill in their exercise as a prudent man would exercise
or use under the circumstances in the conduct of his own affairs;
(h) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond, debenture, note or other evidence of
indebtedness or other paper or document, unless requested in writing to
do so by one or more Securityholders, but the Property Trustee may make
such further inquiry or investigation into such facts or matters as it
may see fit;
(i) the Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through its agents or attorneys, provided that the Property Trustee
shall be responsible for its own negligence or recklessness with respect
to selection of any agent or attorney appointed by it hereunder;
(j) whenever in the administration of this Trust Agreement the
Property Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder, the Property Trustee (i) may request instructions from the
Holders of the Trust Securities which instructions may only be given by
the Holders of the same proportion in Liquidation Amount of the Trust
Securities as would be entitled to direct the Property Trustee under the
terms of the Trust Securities in respect of such remedy, right or
action; (ii) may refrain from enforcing such remedy or right or taking
such other action until such instructions are received; and (iii) shall
be protected in acting in accordance with such instructions; and
(k) except as otherwise expressly provided by this Trust
Agreement, the Property Trustee shall not be under any obligation to
take any action that is discretionary under the provisions of this Trust
Agreement. No provision of this Trust Agreement shall be deemed to
impose any duty or obligation on the Property Trustee to perform any act
or acts or exercise any right, power, duty or
39
obligation conferred or imposed on it, in any jurisdiction in which it
shall be illegal, or in which the Property Trustee shall be unqualified
or incompetent in accordance with applicable law, to perform any such
act or acts, or to exercise any such right, power, duty or obligation.
No permissive power or authority available to the Property Trustee shall
be construed to be a duty.
SECTION 804. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES.
The Recitals contained herein and in the Trust Securities
Certificates shall be taken as the statements of the Trust, and the
Trustees do not assume any responsibility for their correctness. The
Trustees shall not be accountable for the use or application by the
Depositor of the proceeds of the Debentures.
SECTION 805. MAY HOLD SECURITIES.
Any Trustee or any other agent of any Trustee or the Trust, in its
individual or any other capacity, may become the owner or pledgee of
Trust Securities and, subject to Sections 808 and 813 and except as
provided in the definition of the term "Outstanding" in Article I, may
otherwise deal with the Trust with the same rights it would have if it
were not a Trustee or such other agent.
SECTION 806. COMPENSATION; INDEMNITY; FEES.
The Depositor agrees:
(a) to pay to the Trustees from time to time reasonable
compensation for all services rendered by them hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse
the Trustees upon request for all reasonable expenses, disbursements and
advances incurred or made by the Trustees in accordance with any
provision of this Trust Agreement (including the reasonable compensation
and the expenses and disbursements of its agents and counsel), except
any such expense, disbursement or advance as may be attributable to such
Trustee's negligence, bad faith or willful misconduct (or, in the case
of the Administrative Trustees or the Delaware Trustee, any such
expense, disbursement or advance as may be attributable to its, his or
her gross negligence, bad faith or willful misconduct); and
(c) to indemnify each of the Trustees or any predecessor Trustee
for, and to hold the Trustees harmless against, any loss, damage,
claims, liability, penalty or expense of any kind or nature whatsoever,
arising out of or in connection with the acceptance or administration
of this Trust Agreement, including the costs and expenses of defending
itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder, except any such
expense, disbursement or advance as may be attributable to such Trustee's
negligence, bad faith or willful misconduct (or, in the case of the
Administrative Trustees
40
or the Delaware Trustee, any such expense, disbursement or advance as
may be attributable to its, his or her gross negligence, bad faith or
willful misconduct).
No Trustee may claim any Lien or charge on Trust Property as a
result of any amount due pursuant to this Section 806.
SECTION 807. CORPORATE PROPERTY TRUSTEE REQUIRED; ELIGIBILITY OF
TRUSTEES.
(a) There shall at all times be a Property Trustee hereunder
with respect to the Trust Securities. The Property Trustee shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as
such and has (or the obligations of which are guaranteed by an entity
having) a combined capital and surplus of at least $50,000,000. If
any such Person publishes reports of condition at least annually,
pursuant to law or to the requirements of its supervising or examining
authority, then for the purposes of this Section 807, the combined
capital and surplus of such Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition
so published. If at any time the Property Trustee with respect to the
Trust Securities shall cease to be eligible in accordance with the
provisions of this Section 807, it shall resign immediately in the
manner and with the effect hereinafter specified in this Article VIII.
(b) There shall at all times be one or more Administrative
Trustees hereunder with respect to the Trust Securities. Each
Administrative Trustee shall be either a natural person who is at least
21 years of age or a legal entity that shall act through one or more
persons authorized to bind that entity.
(c) There shall at all times be a Delaware Trustee with respect
to the Trust Securities. The Delaware Trustee shall either be (i) a
natural person who is at least 21 years of age and a resident of the
State of Delaware; or (ii) a legal entity with its principal place of
business in the State of Delaware and that otherwise meets the
requirements of applicable Delaware law that shall act through one or
more persons authorized to bind such entity.
SECTION 808. CONFLICTING INTERESTS.
If the Property Trustee has or shall acquire a conflicting
interest within the meaning of the Trust Indenture Act, the Property
Trustee shall either eliminate such interest or resign, to the extent
and in the manner provided by, and subject to the provisions of, the
Trust Indenture Act and this Trust Agreement.
SECTION 809. CO-TRUSTEES AND SEPARATE TRUSTEE.
(a) Unless a Debenture Event of Default shall have occurred and
be continuing, at any time or times, for the purpose of meeting the
legal requirements of the Trust Indenture Act or of any jurisdiction in
which any part of the Trust Property may at the time be located, the
Depositor shall have power to appoint, and upon the written request of
the Property Trustee, the Depositor shall for such purpose join with the
Property Trustee in the execution, delivery and performance of all
41
instruments and agreements necessary or proper to appoint, one or more
Persons approved by the Property Trustee either to act as co-trustee,
jointly with the Property Trustee, of all or any part of such Trust
Property, or to the extent required by law to act as separate trustee of
any such property, in either case with such powers as may be provided in
the instrument of appointment, and to vest in such Person or Persons in
the capacity aforesaid, any property, title, right or power deemed
necessary or desirable, subject to the other provisions of this Section
809. If the Depositor does not join in such appointment within 15 days
after the receipt by it of a request so to do, or in case a Debenture
Event of Default has occurred and is continuing, the Property Trustee
alone shall have power to make such appointment. Any co-trustee or
separate trustee appointed pursuant to this Section 809 shall either be
(i) a natural person who is at least 21 years of age and a resident of
the United States; or (ii) a legal entity with its principal place of
business in the United States that shall act through one or more persons
authorized to bind such entity.
(b) Should any written instrument from the Depositor be required
by any co-trustee or separate trustee so appointed for more fully
confirming to such co-trustee or separate trustee such property, title,
right, or power, any and all such instruments shall, on request, be
executed, acknowledged, and delivered by the Depositor.
(c) Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject to the
following terms, namely:
(i) The Trust Securities shall be executed and delivered
and all rights, powers, duties and obligations hereunder in respect of
the custody of securities, cash and other personal property held by, or
required to be deposited or pledged with, the Trustees specified
hereunder, shall be exercised, solely by such Trustees and not by such
co-trustee or separate trustee.
(ii) The rights, powers, duties and obligations hereby
conferred or imposed upon the Property Trustee in respect of any
property covered by such appointment shall be conferred or imposed upon
and exercised or performed by the Property Trustee or by the Property
Trustee and such co-trustee or separate trustee jointly, as shall be
provided in the instrument appointing such co-trustee or separate
trustee, except to the extent that under any law of any jurisdiction in
which any particular act is to be performed, the Property Trustee shall
be incompetent or unqualified to perform such act, in which event such
rights, powers, duties and obligations shall be exercised and performed
by such co-trustee or separate trustee.
(iii) The Property Trustee at any time, by an instrument in
writing executed by it, with the written concurrence of the Depositor,
may accept the resignation of or remove any co-trustee or separate
trustee appointed under this Section 809, and, in case a Debenture Event
of Default has occurred and is continuing, the Property Trustee shall
have the power to accept the resignation of, or remove, any such
co-trustee or separate trustee without the concurrence of the Depositor.
Upon the written request of the Property Trustee, the Depositor shall
join with the Property Trustee in the execution, delivery and
performance of all instruments and agreements necessary or proper to
effectuate such resignation or removal. A successor to any co-trustee
or
42
separate trustee so resigned or removed may be appointed in the manner
provided in this Section 809.
(iv) No co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the Property
Trustee or any other trustee hereunder.
(v) The Property Trustee shall not be liable by reason of
any act of a co-trustee or separate trustee.
(vi) Any Act of Holders delivered to the Property Trustee
shall be deemed to have been delivered to each such co-trustee and
separate trustee.
SECTION 810. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of any Trustee (the "Relevant
Trustee") and no appointment of a successor Trustee pursuant to this
Article VIII shall become effective until the acceptance of appointment
by the successor Trustee in accordance with the applicable requirements
of Section 811.
(b) Subject to the immediately preceding paragraph, the Relevant
Trustee may resign at any time with respect to the Trust Securities by
giving written notice thereof to the Securityholders. If the instrument
of acceptance by the successor Trustee required by Section 811 shall not
have been delivered to the Relevant Trustee within 30 days after the
giving of such notice of resignation, the Relevant Trustee may petition,
at the expense of the Depositor, any court of competent jurisdiction for
the appointment of a successor Relevant Trustee with respect to the
Trust Securities.
(c) Unless a Debenture Event of Default shall have occurred and
be continuing, any Trustee may be removed at any time by Act of the
Common Securityholder. If a Debenture Event of Default shall have
occurred and be continuing, the Property Trustee or the Delaware
Trustee, or both of them, may be removed at such time by Act of the
Holders of a majority in Liquidation Amount of the Preferred Securities,
delivered to the Relevant Trustee (in its individual capacity and on
behalf of the Trust). An Administrative Trustee may be removed by the
Common Securityholder at any time.
(d) If any Trustee shall resign, be removed or become incapable
of acting as Trustee, or if a vacancy shall occur in the office of any
Trustee for any cause, at a time when no Debenture Event of Default
shall have occurred and be continuing, the Common Securityholder, by Act
of the Common Securityholder delivered to the retiring Trustee, shall
promptly appoint a successor Trustee or Trustees with respect to the
Trust Securities and the Trust, and the successor Trustee shall comply
with the applicable requirements of Section 811. If the Property Trustee
or the Delaware Trustee shall resign, be removed or become incapable of
continuing to act as the Property Trustee or the Delaware Trustee, as
the case may be, at a time when a Debenture Event of Default shall have
occurred and is continuing, the Preferred Securityholders, by Act of the
Securityholders of a
43
majority in Liquidation Amount of the Preferred Securities then
Outstanding delivered to the retiring Relevant Trustee, shall promptly
appoint a successor Relevant Trustee or Trustees with respect to the
Trust Securities and the Trust, and such successor Trustee shall comply
with the applicable requirements of Section 811. If an Administrative
Trustee shall resign, be removed or become incapable of acting as
Administrative Trustee, at a time when a Debenture Event of Default
shall have occurred and be continuing, the Common Securityholder, by Act
of the Common Securityholder delivered to an Administrative Trustee,
shall promptly appoint a successor Administrative Trustee or
Administrative Trustees with respect to the Trust Securities and the
Trust, and such successor Administrative Trustee or Administrative
Trustees shall comply with the applicable requirements of Section 811.
If no successor Relevant Trustee with respect to the Trust Securities
shall have been so appointed by the Common Securityholder or the
Preferred Securityholders and accepted appointment in the manner
required by Section 811, any Securityholder who has been a
Securityholder of Trust Securities on behalf of himself and all others
similarly situated may petition a court of competent jurisdiction for
the appointment Trustee with respect to the Trust Securities.
(e) The Property Trustee shall give notice of each resignation
and each removal of a Trustee and each appointment of a successor
Trustee to all Securityholders in the manner provided in Section 1008
and shall give notice to the Depositor. Each notice shall include the
name of the successor Relevant Trustee and the address of its Corporate
Trust Office if it is the Property Trustee.
(f) Notwithstanding the foregoing or any other provision of this
Trust Agreement, in the event any Administrative Trustee or a Delaware
Trustee who is a natural person dies or becomes, in the opinion of the
Depositor, incompetent or incapacitated, the vacancy created by such
death, incompetence or incapacity may be filled by (a) the unanimous act
of remaining Administrative Trustees if there are at least two of them;
or (b) otherwise by the Depositor (with the successor in each case being
a Person who satisfies the eligibility requirement for Administrative
Trustees set forth in Section 807).
SECTION 811. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Relevant
Trustee with respect to the Trust Securities and the Trust, the retiring
Relevant Trustee and each successor Relevant Trustee with respect to the
Trust Securities shall execute and deliver an instrument hereto wherein
each successor Relevant Trustee shall accept such appointment and which
shall contain such provisions as shall be necessary or desirable to
transfer and confirm to, and to vest in, each successor Relevant Trustee
all the rights, powers, trusts and duties of the retiring Relevant
Trustee with respect to the Trust Securities and the Trust and upon the
execution and delivery of such instrument the resignation or removal of
the retiring Relevant Trustee shall become effective to the extent
provided therein and each such successor Relevant Trustee, without any
further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Relevant Trustee with
respect to the Trust Securities and the Trust; but, on request of the
Trust or any successor Relevant Trustee such retiring Relevant Trustee
shall duly assign, transfer and deliver to such successor
44
Relevant Trustee all Trust Property, all proceeds thereof and money held
by such retiring Relevant Trustee hereunder with respect to the Trust
Securities and the Trust.
(b) Upon request of any such successor Relevant Trustee, the
Trust shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Relevant Trustee all such
rights, powers and trusts referred to in the immediately preceding
paragraph, as the case may be.
(c) No successor Relevant Trustee shall accept its appointment
unless at the time of such acceptance such successor Relevant Trustee
shall be qualified and eligible under this Article VIII.
SECTION 812. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS.
Any Person into which the Property Trustee, the Delaware Trustee
or any Administrative Trustee may be merged or converted or with which
it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which such Relevant Trustee shall be a
party, or any corporation succeeding to all or substantially all the
corporate trust business of such Relevant Trustee, shall be the
successor of such Relevant Trustee hereunder, provided such Person shall
be otherwise qualified and eligible under this Article VIII, without the
execution or filing of any paper or any further act on the part of any
of the parties hereto.
SECTION 813. PREFERENTIAL COLLECTION OF CLAIMS AGAINST DEPOSITOR
OR TRUST.
If and when the Property Trustee or the Delaware Trustee shall be
or become a creditor of the Depositor or the Trust (or any other obligor
upon the Debentures or the Trust Securities), the Property Trustee or
the Delaware Trustee, as the case may be, shall be subject to and shall
take all actions necessary in order to comply with the provisions of the
Trust Indenture Act regarding the collection of claims against the
Depositor or Trust (or any such other obligor).
SECTION 814. REPORTS BY PROPERTY TRUSTEE.
(a) The Property Trustee shall transmit to the Securityholders
such reports concerning the Property Trustee, its actions under this
Trust Agreement and the property and funds in its possession in its
capacity as the Property Trustee as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant
thereto.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Property Trustee with The
Nasdaq National Market(SM) and each national securities exchange or other
organization upon which the Trust Securities are listed, and also with
the Commission and the Depositor.
45
SECTION 815. REPORTS TO THE PROPERTY TRUSTEE.
The Depositor and the Administrative Trustees on behalf of the
Trust shall provide to the Property Trustee such documents, reports and
information as required by Section 314 of the Trust Indenture Act (if
any) and the compliance certificate required by Section 314(a) of the
Trust Indenture Act in the form, in the manner and at the times required
by Section 314 of the Trust Indenture Act.
SECTION 816. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
Each of the Depositor and the Administrative Trustees on behalf of
the Trust shall provide to the Property Trustee such evidence of
compliance with any conditions precedent, if any, provided for in this
Trust Agreement that relate to any of the matters set forth in
Section 314(c) of the Trust Indenture Act. Any certificate or opinion
required to be given by an officer pursuant to Section 314(c)(1) of the
Trust Indenture Act shall be given in the form of an Officers'
Certificate.
SECTION 817. NUMBER OF TRUSTEES.
(a) The number of Trustees shall be five, provided that the
Common Securityholder by written instrument may increase or decrease the
number of Administrative Trustees. The Property Trustee and the
Delaware Trustee may be the same Person.
(b) If an Administrative Trustee ceases to hold office for any reason
and the number of Administrative Trustees is not reduced pursuant to
Section 817(a), or if the number of Trustees is increased pursuant to
Section 817(a), a vacancy shall occur. The vacancy shall be filled with
a Trustee appointed in accordance with Section 810.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not
operate to annul the Trust. Whenever a vacancy in the number of
Administrative Trustees shall occur, until such vacancy is filled by the
appointment of an Administrative Trustee in accordance with Section 810,
the Administrative Trustees in office, regardless of their number (and
notwithstanding any other provision of this Agreement), shall have all
the powers granted to the Administrative Trustees and shall discharge
all the duties imposed upon the Administrative Trustees by this Trust
Agreement.
SECTION 818. DELEGATION OF POWER.
(a) Any Administrative Trustee may, by power of attorney
consistent with applicable law, delegate to any other natural person
over the age of 21 his or her power for the purpose of executing any
documents contemplated in Section 207(a); and
(b) The Administrative Trustees shall have power to delegate
from time to time to such of their number or to the Depositor the doing
of such things and the execution of such instruments
46
either in the name of the Trust or the names of the Administrative
Trustees or otherwise as the Administrative Trustees may deem expedient,
to the extent such delegation is not prohibited by applicable law or
contrary to the provisions of the Trust, as set forth herein.
SECTION 819. VOTING.
Except as otherwise provided in this Trust Agreement, the consent
or approval of the Administrative Trustees shall require consent or
approval by not less than a majority of the Administrative Trustees,
unless there are only two, in which case both must consent.
ARTICLE IX
TERMINATION, LIQUIDATION AND MERGER
SECTION 901. TERMINATION UPON EXPIRATION DATE.
Unless earlier dissolved, the Trust shall automatically dissolve
on ____________, 2055 (the "Expiration Date"), subject to distribution
of the Trust Property in accordance with Section 904.
SECTION 902. EARLY TERMINATION.
The first to occur of any of the following events is an "Early
Termination Event:"
(a) the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation of, the Depositor;
(b) delivery of written direction to the Property Trustee by the
Depositor at any time (which direction is wholly optional and within the
discretion of the Depositor, subject to Depositor having received prior
approval of the Board of Governors of the Federal Reserve System if so
required under applicable guidelines, policies or regulations thereof)
to dissolve the Trust and distribute the Debentures to Securityholders
in exchange for the Preferred Securities in accordance with Section 904;
(c) the redemption of all of the Preferred Securities in
connection with the redemption of all of the Debentures; and
(d) an order for dissolution of the Trust shall have been
entered by a court of competent jurisdiction.
SECTION 903. TERMINATION.
The respective obligations and responsibilities of the Trustees
and the Trust created and continued hereby shall terminate upon the
latest to occur of the following: (a) the distribution by the Property
Trustee to Securityholders upon the liquidation of the Trust pursuant to
Section 904, or upon the redemption of all of the Trust Securities
pursuant to Section 402, of all amounts
47
required to be distributed hereunder upon the final payment of the Trust
Securities; (b) the payment of any expenses owed by the Trust; (c) the
discharge of all administrative duties of the Administrative Trustees,
including the performance of any tax reporting obligations with respect
to the Trust or the Securityholders; and (d) the filing of a Certificate
of Cancellation by an Administrative Trustee under the Delaware Business
Trust Act.
SECTION 904. LIQUIDATION.
(a) If an Early Termination Event specified in clause (a), (b),
or (d) of Section 902 occurs or upon the Expiration Date, the Trust
shall be liquidated by the Trustees as expeditiously as the Trustees
determine to be practicable by distributing, after satisfaction of
liabilities to creditors of the Trust as provided by applicable law, to
each Securityholder a Like Amount of Debentures, subject to
Section 904(d). Notice of liquidation shall be given by the Property
Trustee by first-class mail, postage prepaid, mailed not later than 30
nor more than 60 days prior to the Liquidation Date to each Holder of
Trust Securities at such Holder's address appearing in the Securities
Register. All notices of liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date, the
Trust Securities shall no longer be deemed to be Outstanding and any
Trust Securities Certificates not surrendered for exchange shall be
deemed to represent a Like Amount of Debentures; and
(iii) provide such information with respect to the mechanics
by which Holders may exchange Trust Securities Certificates for
Debentures, or, if Section 904(d) applies, receive a Liquidation
Distribution, as the Administrative Trustees or the Property Trustee
shall deem appropriate.
(b) Except where Section 902(c) or 904(d) applies, in order to
effect the liquidation of the Trust and distribution of the Debentures
to Securityholders, the Property Trustee shall establish a record date
for such distribution (which shall be not more than 45 days prior to the
Liquidation Date) and, either itself acting as exchange agent or through
the appointment of a separate exchange agent, shall establish such
procedures as it shall deem appropriate to effect the distribution of
Debentures in exchange for the Outstanding Trust Securities
Certificates.
(c) Except where Section 902(c) or 904(d) applies, after the
Liquidation Date, (i) the Trust Securities shall no longer be deemed to
be Outstanding; (ii) certificates representing a Like Amount of
Debentures shall be issued to holders of Trust Securities Certificates
upon surrender of such certificates to the Administrative Trustees or
their agent for exchange; (iii) the Depositor shall use its reasonable
efforts to have the Debentures listed on The Nasdaq National Market(SM)
or such securities exchange or other organization as the Preferred
Securities are then listed or traded; (iv) any Trust Securities
Certificates not so surrendered for exchange shall be deemed to
represent a Like Amount of Debentures, accruing interest at the rate
provided for in the Debentures from the last Distribution Date on which
a Distribution was made on such Trust Securities Certificates until such
certificates are so surrendered (and until such certificates are so
surrendered, no payments of
48
interest or principal shall be made to holders of Trust Securities
Certificates with respect to such Debentures); and (v) all rights of
Securityholders holding Trust Securities shall cease, except the right
of such Securityholders to receive Debentures upon surrender of Trust
Securities Certificates.
(d) In the event that, notwithstanding the other provisions of
this Section 904, whether because of an order for dissolution entered by
a court of competent jurisdiction or otherwise, distribution of the
Debentures in the manner provided herein is determined by the Property
Trustee not to be practical, the Trust Property shall be liquidated, and
the Trust shall be dissolved, wound-up or terminated, by the Property
Trustee in such manner as the Property Trustee determines. In such
event, on the date of the dissolution, winding-up or other termination
of the Trust, Securityholders shall be entitled to receive out of the
assets of the Trust available for distribution to Securityholders, after
satisfaction of liabilities to creditors of the Trust as provided by
applicable law, an amount equal to the Liquidation Amount per Trust
Security plus accumulated and unpaid Distributions thereon to the date
of payment (such amount being the "Liquidation Distribution"). If, upon
any such dissolution, winding-up or termination, the Liquidation
Distribution can be paid only in part because the Trust has insufficient
assets available to pay in full the aggregate Liquidation Distribution,
then, subject to the next succeeding sentence, the amounts payable by
the Trust on the Trust Securities shall be paid on a pro rata basis
(based upon Liquidation Amounts). The Common Securityholder shall be
entitled to receive Liquidation Distributions upon any such dissolution,
winding-up or termination pro rata (determined as aforesaid) with
Preferred Securityholders, except that, if a Debenture Event of Default
has occurred and is continuing, the Preferred Securities shall have a
priority over the Common Securities.
SECTION 905. MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR
REPLACEMENTS OF THE TRUST.
The Trust may not merge with or into, consolidate, amalgamate, or
be replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other Person, except
pursuant to this Section 905. At the request of the Depositor, with the
consent of the Administrative Trustees and without the consent of the
Preferred Securityholders, the Property Trustee or the Delaware Trustee,
the Trust may merge with or into, consolidate, amalgamate, be replaced
by or convey, transfer or lease its properties and assets substantially
as an entirety to a trust organized as such under the laws of any state;
provided, that (i) such successor entity either (a) expressly assumes
all of the obligations of the Trust with respect to the Preferred
Securities, or (b) substitutes for the Preferred Securities other
securities having substantially the same terms as the Preferred
Securities (the "Successor Securities") so long as the Successor
Securities rank the same as the Preferred Securities rank in priority
with respect to distributions and payments upon liquidation, redemption
and otherwise; (ii) the Depositor expressly appoints a trustee of such
successor entity possessing substantially the same powers and duties as
the Property Trustee as the holder of the Debentures; (iii) the
Successor Securities are listed or traded, or any Successor Securities
shall be listed or traded upon notification of issuance, on any national
securities exchange or other organization on which the Preferred
Securities are then listed, if any; (iv) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and privileges of the Preferred
Securityholders (including any Successor Securities) in any material
respect; (v) such successor entity has a purpose substantially identical
to that of the Trust; (vi) prior to such merger, consolidation,
amalgamation, replacement,
49
conveyance, transfer or lease, the Depositor has received an Opinion of
Counsel to the effect that (a) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not adversely affect the
rights, preferences and privileges of the Preferred Securityholders
(including any Successor Securities) in any material respect, and
(b) following such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease, neither the Trust nor such successor
entity shall be required to register as an "investment company" under
the Investment Company Act; and (vii) the Depositor owns all of the
Common Securities of such successor entity and guarantees the
obligations of such successor entity under the Successor Securities at
least to the extent provided by the Guarantee, the Debentures, this
Trust Agreement and the Expense Agreement. For purposes of this
Section 905, any such consolidation, merger, sale, conveyance, transfer
or other disposition as a result of which (a) the Company is not the
surviving Person, and (b) the same Person is not both (i) the primary
obligor in respect of the Debentures and (ii) the Guarantor under that
certain Preferred Securities Guarantee Agreement of even date herewith
(the "Guarantee") between the Company and State Street Bank and Trust
Company of Connecticut, National Association, shall be deemed to
constitute a replacement of the Trust by a successor entity; provided
further, that, notwithstanding the foregoing, in the event that upon
the consummation of such a consolidation, merger, sale, conveyance,
transfer or other disposition, the parent company (if any) of the Company,
or its successor, is a bank holding company or financial holding company
or comparably regulated financial institution, such parent company shall
guarantee the obligations of the Trust (and any successor thereto) under
the Preferred Securities (including any Successor Securities) at least to
the extent provided by the Guarantee, the Debentures, the Trust Agreement
and the Expense Agreement. Notwithstanding the foregoing, the Trust shall
not, except with the consent of holders of 100% in Liquidation Amount of
the Preferred Securities, consolidate, amalgamate, merge with or into,
or be replaced by or convey, transfer or lease its properties and assets
substantially as an entirety to any other Person or permit any other
Person to consolidate, amalgamate, merge with or into, or replace it if
such consolidation, amalgamation, merger or replacement would cause the
Trust or the successor entity to be classified as other than a grantor
trust for United States federal income tax purposes.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 1001. LIMITATION OF RIGHTS OF SECURITYHOLDERS.
The death or incapacity of any Person having an interest,
beneficial or otherwise, in Trust Securities shall not operate to
terminate this Trust Agreement, nor entitle the legal representatives or
heirs of such Person or any Securityholder for such Person, to claim an
accounting, take any action or bring any proceeding in any court for a
partition or winding-up of the arrangements contemplated hereby, nor
otherwise affect the rights, obligations and liabilities of the parties
hereto or any of them.
SECTION 1002. AMENDMENT.
(a) This Trust Agreement may be amended from time to time by the
Trustees and the Depositor, without the consent of any Securityholders,
(i) as provided in Section 811 with respect to acceptance of appointment
by a successor Trustee; (ii) to cure any ambiguity, correct or
supplement any provision herein or therein which may be inconsistent
with any other provision herein or therein, or to make any other
provisions with respect to matters or questions arising under this Trust
Agreement, that shall not be inconsistent with the other provisions of
this Trust Agreement; (iii) to modify, eliminate or add to any
provisions of this Trust Agreement to such extent as shall be necessary
to ensure that the Trust shall be classified for United States federal
income tax purposes as a grantor trust at all times that any Trust
Securities are Outstanding or to ensure that the Trust shall not be
required to register as an "investment company" under the Investment
Company Act; or (iv) to reduce or increase the Liquidation Amount per
Trust Security and simultaneously to increase or decrease
correspondingly the number of Trust Securities issued and Outstanding
solely for the purpose of maintaining the eligibility of the Preferred
Securities for quotation or listing on any national securities exchange
or other organization on which the Preferred Securities are then
50
quoted or listed (including, if applicable, The Nasdaq National
Market(SM)); provided, however, that in the case of clause (ii), such
action shall not adversely affect in any material respect the interests
of any Securityholder; and provided further, that in the case of clause
(iv), the aggregate Liquidation Amount of the Trust Securities
Outstanding upon completion of any such reduction must be the same as
the aggregate Liquidation Amount of the Trust Securities Outstanding
immediately prior to such reduction or increase. Any amendments of this
Trust Agreement shall become effective when notice thereof is given to
the Securityholders or, in the case of any amendment pursuant to clause
(iv), as of the date specified in the notice.
(b) Except as provided in Section 601(c) or Section 1002(c)
hereof, any provision of this Trust Agreement may be amended by the
Trustees and the Depositor (i) with the consent of the Securityholders
representing not less than a majority (based upon Liquidation Amounts)
of the Trust Securities then Outstanding; and (ii) upon receipt by the
Trustees of an Opinion of Counsel to the effect that such amendment or
the exercise of any power granted to the Trustees in accordance with
such amendment shall not affect the Trust's status as a grantor trust
for United States federal income tax purposes or the Trust's exemption
from status of an "investment company" under the Investment Company Act.
(c) In addition to and notwithstanding any other provision in
this Trust Agreement, without the consent of each affected
Securityholder (such consent being obtained in accordance with
Section 603 or 606 hereof), this Trust Agreement may not be amended to
(i) change the amount or timing of any Distribution on the Trust
Securities or otherwise adversely affect the amount of any Distribution
required to be made in respect of the Trust Securities as of a specified
date; or (ii) restrict the right of a Securityholder to institute suit
for the enforcement of any such payment on or after such date;
notwithstanding any other provision herein, without the unanimous
consent of the Securityholders (such consent being obtained in
accordance with Section 603 or 606 hereof), this paragraph (c) of this
Section 1002 may not be amended.
(d) Notwithstanding any other provisions of this Trust
Agreement, no Trustee shall enter into or consent to any amendment to
this Trust Agreement which would cause the Trust to fail or cease to
qualify for the exemption from status of an "investment company" under
the Investment Company Act or to fail or cease to be classified as a
grantor trust for United States federal income tax purposes.
(e) Notwithstanding anything in this Trust Agreement to the
contrary, without the consent of the Depositor, this Trust Agreement may
not be amended in a manner which imposes any additional obligation on
the Depositor.
(f) In the event that any amendment to this Trust Agreement is
made, the Administrative Trustees shall promptly provide to the
Depositor a copy of such amendment.
(g) Neither the Property Trustee nor the Delaware Trustee shall
be required to enter into any amendment to this Trust Agreement which
affects its own rights, duties or immunities under this Trust Agreement.
The Property Trustee shall be entitled to receive an Opinion of Counsel
and
51
an Officers' Certificate stating that any amendment to this Trust
Agreement is in compliance with this Trust Agreement.
SECTION 1003. SEPARABILITY.
In case any provision in this Trust Agreement or in the Trust
Securities Certificates shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall
not in any way be affected or impaired thereby.
SECTION 1004. GOVERNING LAW.
THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE
SECURITYHOLDERS, THE TRUST AND THE TRUSTEES WITH RESPECT TO THIS TRUST
AGREEMENT AND THE TRUST SECURITIES SHALL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE LAWS OF THE STATE OF DELAWARE (WITHOUT REGARD TO
CONFLICT OF LAWS PRINCIPLES THEREOF).
SECTION 1005. PAYMENTS DUE ON NON-BUSINESS DAY.
If the date fixed for any payment on any Trust Security shall be a
day that is not a Business Day, then such payment need not be made on
such date but may be made on the next succeeding day which is a Business
Day, with the same force and effect as though made on the date fixed for
such payment, and no distribution shall accumulate thereon for the
period after such date.
SECTION 1006. SUCCESSORS.
This Trust Agreement shall be binding upon and shall inure to the
benefit of any successor to the Depositor, the Trust or the Relevant
Trustee(s), including any successor by operation of law. Except in
connection with a consolidation, merger or sale involving the Depositor
that is permitted under Article XII of the Indenture and pursuant to
which the assignee agrees in writing to perform the Depositor's
obligations hereunder, the Depositor shall not assign its obligations
hereunder.
SECTION 1007. HEADINGS.
The Article and Section headings are for convenience only and
shall not affect the construction of this Trust Agreement.
SECTION 1008. REPORTS, NOTICES AND DEMANDS.
Any report, notice, demand or other communication which by any
provision of this Trust Agreement is required or permitted to be given
or served to or upon any Securityholder or the Depositor may be given or
served in writing by deposit thereof, first-class postage prepaid, in
the United States mail, hand delivery or facsimile transmission, in each
case, addressed, (a) in the case of a Preferred Securityholder, to such
Preferred Securityholder as such Securityholder's name and address may
appear on the Securities Register; and (b) in the case of the Common
Securityholder
52
or the Depositor, to First Banks, Inc., 11901 Olive Boulevard, St.
Louis, Missouri 63141, Attention: Chief Financial Officer, facsimile
no.: (314) 567-3490. Any notice to Preferred Securityholders shall also
be given to such owners as have, within two years preceding the giving
of such notice, filed their names and addresses with the Property
Trustee for that purpose. Such notice, demand or other communication to
or upon a Securityholder shall be deemed to have been sufficiently given
or made, for all purposes, upon hand delivery, mailing or transmission.
Any notice, demand or other communication which by any provision
of this Trust Agreement is required or permitted to be given or served
to or upon the Trust, the Property Trustee or the Administrative
Trustees shall be given in writing addressed (until another address is
published by the Trust) as follows: (a) with respect to the Property
Trustee to State Street Bank and Trust Company of Connecticut, National
Association, 225 Asylum Street, Goodwin Square, Hartford, Connecticut
06103, Attention: Corporate Trust Department, with a copy to: State
Street Bank and Trust Company, 2 Avenue de Lafayette, Boston,
Massachusetts 02110, Attention: Corporate Trust Department; (b) with
respect to the Delaware Trustee, to Wilmington Trust Company, Rodney
Square North, 1100 North Market Street, Wilmington, Delaware 19890-0001,
Attention: Corporate Trust Administration; and (c) with respect to the
Administrative Trustees, to them at the address above for notices to the
Depositor, marked "Attention: Administrative Trustees of First Preferred
Capital Trust II." Such notice, demand or other communication to or
upon the Trust or the Property Trustee shall be deemed to have been
sufficiently given or made only upon actual receipt of the writing by
the Trust or the Property Trustee.
SECTION 1009. AGREEMENT NOT TO PETITION.
Each of the Trustees and the Depositor agree for the benefit of
the Securityholders that, until at least one year and one day after the
Trust has been terminated in accordance with Article IX, they shall not
file, or join in the filing of, a petition against the Trust under any
bankruptcy, insolvency, reorganization or other similar law (including,
without limitation, the United States Bankruptcy Code of 1978, as
amended) (collectively, "Bankruptcy Laws") or otherwise join in the
commencement of any proceeding against the Trust under any Bankruptcy
Law. In the event the Depositor or any of the Trustees takes action in
violation of this Section 1009, the Property Trustee agrees, for the
benefit of Securityholders, that at the expense of the Depositor (which
expense shall be paid prior to the filing), it shall file an answer with
the bankruptcy court or otherwise properly contest the filing of such
petition by the Depositor or such Trustee against the Trust or the
commencement of such action and raise the defense that the Depositor or
such Trustee has agreed in writing not to take such action and should be
stopped and precluded therefrom. The provisions of this Section 1009
shall survive the termination of this Trust Agreement.
SECTION 1010. TRUST INDENTURE ACT; CONFLICT WITH TRUST INDENTURE
ACT.
(a) This Trust Agreement is subject to the provisions of the
Trust Indenture Act that are required to be part of this Trust Agreement
and shall, to the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a
trustee for the purposes of the Trust Indenture Act.
53
(c) If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required to be included in this Trust
Agreement by any of the provisions of the Trust Indenture Act, such
required provision shall control. If any provision of this Trust
Agreement modifies or excludes any provision of the Trust Indenture Act
which may be so modified or excluded, the latter provision shall be
deemed to apply to this Trust Agreement as so modified or to be
excluded, as the case may be.
(d) The application of the Trust Indenture Act to this Trust
Agreement shall not affect the nature of the Securities as equity
securities representing undivided beneficial interests in the assets of
the Trust.
SECTION 1011. ACCEPTANCE OF TERMS OF TRUST AGREEMENT, GUARANTEE
AND INDENTURE.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST
THEREIN BY OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER,
WITHOUT ANY SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL
CONSTITUTE THE UNCONDITIONAL ACCEPTANCE BY THE SECURITYHOLDER AND ALL
OTHERS HAVING A BENEFICIAL INTEREST IN SUCH TRUST SECURITY OF ALL THE
TERMS AND PROVISIONS OF THIS TRUST AGREEMENT AND AGREEMENT TO THE
SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE AND THE
INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST, SUCH
SECURITYHOLDER AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF THIS
TRUST AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE
TRUST AND SUCH SECURITYHOLDER AND SUCH OTHERS. WITHOUT LIMITING THE
FOREGOING, BY ACCEPTANCE OF A PREFERRED SECURITY, EACH INITIAL AND
SUBSEQUENT HOLDER THEREOF SHALL BE DEEMED TO HAVE AGREED TO TREAT, FOR
ALL FINANCIAL ACCOUNTING AND UNITED STATES FEDERAL INCOME TAX PURPOSES,
THE DEBENTURES AS INDEBTEDNESS OF THE COMPANY AND THE PREFERRED
SECURITIES AS EVIDENCING AN UNDIVIDED BENEFICIAL OWNERSHIP INTEREST IN
THE DEBENTURES.
[Signatures on Next Page]
54
FIRST BANKS, INC.
By:
-----------------------------------
Its:
----------------------------------
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION,
as Property Trustee
By:
-----------------------------------
Its:
----------------------------------
WILMINGTON TRUST COMPANY,
as Delaware Trustee
By:
-----------------------------------
Its:
----------------------------------
-----------------------------------------------
Allen H. Blake, as Administrative Trustee
-----------------------------------------------
Frank H. Sanfilippo, as Administrative Trustee
-----------------------------------------------
Lisa Vansickle, as Administrative Trustee
55
EXHIBIT A
CERTIFICATE OF TRUST
OF
FIRST PREFERRED CAPITAL TRUST II
THIS CERTIFICATE OF TRUST of FIRST PREFERRED CAPITAL TRUST II (the
"Trust"), dated as of _________, 2000, is being duly executed and filed
by WILMINGTON TRUST COMPANY, a Delaware banking corporation, ALLEN H.
BLAKE, FRANK H. SANFILIPPO and LISA VANSICKLE, each an individual, as
trustees, to form a business trust under the Delaware Business Trust Act
(12 Delaware Code Section 3801 et seq.).
1. NAME. The name of the business trust formed hereby is FIRST
PREFERRED CAPITAL TRUST II.
2. DELAWARE TRUSTEE. The name and business address of the trustee of
the Trust in the State of Delaware is Wilmington Trust Company,
Rodney Square North, 1100 North Market Street, Wilmington,
Delaware 19890-0001, Attention: Corporate Trust Administration.
3. EFFECTIVE DATE. This Certificate of Trust shall be effective on
_________, 2000.
IN WITNESS WHEREOF, the undersigned have executed this Certificate
of Trust as of the date first above written, in accordance with Section
3811(a) of the Delaware Business Trust Act.
WILMINGTON TRUST COMPANY,
as trustee
By:
-----------------------------------
Its:
----------------------------------
------------------------------------------
ALLEN H. BLAKE
as Trustee
------------------------------------------
FRANK H. SANFILIPPO
as Trustee
------------------------------------------
LISA VANSICKLE
as Trustee
A-1
EXHIBIT B
THIS CERTIFICATE IS NOT TRANSFERABLE
CERTIFICATE NUMBER 1 NUMBER OF COMMON SECURITIES:__________
CERTIFICATE EVIDENCING COMMON SECURITIES
OF
FIRST PREFERRED CAPITAL TRUST II
COMMON SECURITIES
(LIQUIDATION AMOUNT $25 PER COMMON SECURITY)
FIRST PREFERRED CAPITAL TRUST II, a statutory business trust
created under the laws of the State of Delaware (the "Trust"), hereby
certifies that FIRST BANKS, INC. (the "Holder") is the registered owner
of______________________ (___________) common securities of the Trust
representing undivided beneficial interests in the assets of the Trust
and designated the ____% Common Securities (liquidation amount $25 per
Common Security) (the "Common Securities"). In accordance with Section
510 of the Trust Agreement (as defined below), the Common Securities are
not transferable, and any attempted transfer hereof shall be void. The
designations, rights, privileges, restrictions, preferences, and other
terms and provisions of the Common Securities are set forth in, and this
certificate and the Common Securities represented hereby are issued and
shall in all respects be subject to the terms and provisions of, the
Amended and Restated Trust Agreement of the Trust dated as of _________,
2000, as the same may be amended from time to time (the "Trust
Agreement"), including the designation of the terms of the Common
Securities as set forth therein. The Trust shall furnish a copy of the
Trust Agreement to the Holder without charge upon written request to the
Trust at its principal place of business or registered office.
Upon receive of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees of the
Trust has executed this certificate this______day of_________________,
2000.
FIRST PREFERRED CAPITAL TRUST II
By:
-----------------------------------
Its:
----------------------------------
B-1
EXHIBIT C
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT AS TO EXPENSES AND LIABILITIES (this "Agreement") dated
as of _________, 2000, between FIRST BANKS, INC., a Missouri
corporation ("First Banks"), and FIRST PREFERRED CAPITAL TRUST II, a
Delaware business trust (the "Trust").
RECITALS
WHEREAS, the Trust intends to issue its common securities (the
"Common Securities") to, and receive Debentures from, First Banks and to
issue and sell First Preferred Capital Trust II ______% Cumulative Trust
Preferred Securities (the "Preferred Securities") with such powers,
preferences and special rights and restrictions as are set forth in the
Amended and Restated Trust Agreement of the Trust dated as of _________,
2000, as the same may be amended from time to time (the "Trust
Agreement"); and
WHEREAS, First Banks shall directly or indirectly own all of the
Common Securities of the Trust and shall issue the Debentures;
NOW, THEREFORE, in consideration of the purchase by each holder of
the Preferred Securities, which purchase First Banks hereby agrees shall
benefit First Banks and which purchase First Banks acknowledges shall be
made in reliance upon the execution and delivery of this Agreement,
First Banks, including in its capacity as holder of the Common
Securities, and the Trust hereby agree as follows:
ARTICLE I
SECTION 1.1. GUARANTEE BY FIRST BANKS.
Subject to the terms and conditions hereof, First Banks, including
in its capacity as holder of the Common Securities, hereby irrevocably
and unconditionally guarantees to each person or entity to whom the
Trust is now or hereafter becomes indebted or liable (the
"Beneficiaries") the full payment when and as due, of any and all
Obligations (as hereinafter defined) to such Beneficiaries. As used
herein, "Obligations" means any costs, expenses or liabilities of the
Trust other than obligations of the Trust to pay to holders of any
Preferred Securities or other similar interests in the Trust the amounts
due such holders pursuant to the terms of the Preferred Securities or
such other similar interests, as the case may be. This Agreement is
intended to be for the benefit of, and to be enforceable by, all such
Beneficiaries, whether or not such Beneficiaries have received notice
hereof.
C-1
SECTION 1.2. TERM OF AGREEMENT.
This Agreement shall terminate and be of no further force and
effect upon the later of (a) the date on which full payment has been
made of all amounts payable to all holders of all the Preferred
Securities (whether upon redemption, liquidation, exchange or
otherwise); and (b) the date on which there are no Beneficiaries
remaining; provided, however, that this Agreement shall continue to be
effective or shall be reinstated, as the case may be, if at any time any
holder of Preferred Securities or any Beneficiary must restore payment
of any sums paid under the Preferred Securities, under any obligation,
under the Preferred Securities Guarantee Agreement dated the date hereof
by First Banks and State Street Bank and Trust Company of Connecticut,
National Association, as guarantee trustee, or under this Agreement for
any reason whatsoever. This Agreement is continuing, irrevocable,
unconditional and absolute.
SECTION 1.3. WAIVER OF NOTICE.
First Banks hereby waives notice of acceptance of this Agreement
and of any obligation to which it applies or may apply, and First Banks
hereby waives presentment, demand for payment, protest, notice of
nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
SECTION 1.4. NO IMPAIRMENT.
The obligations, covenants, agreements and duties of First Banks
under this Agreement shall in no way be affected or impaired by reason
of the happening from time to time of any of the following:
(a) the extension of time for the payment by the Trust of all or
any portion of the Obligations or for the performance of any other
obligation under, arising out of, or in connection with, the
Obligations;
(b) any failure, omission, delay or lack of diligence on the
part of the Beneficiaries to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Beneficiaries with respect
to the Obligations or any action on the part of the Trust granting
indulgence or extension of any kind; or
(c) the voluntary or involuntary liquidation, dissolution, sale
of any collateral, receivership, insolvency, bankruptcy, assignment for
the benefit of creditors, reorganization, arrangement composition or
readjustment of debt of, or other similar proceedings affecting, the
Trust or any of the assets of the Trust.
There shall be no obligation of the Beneficiaries to give notice to, or
obtain the consent of, First Banks with respect to the happening of any
of the foregoing.
C-2
SECTION 1.5. ENFORCEMENT.
A Beneficiary may enforce this Agreement directly against First
Banks, and First Banks waives any right or remedy to require that any
action be brought against the Trust or any other person or entity before
proceeding against First Banks.
ARTICLE II
SECTION 2.1. BINDING EFFECT.
All guarantees and agreements contained in this Agreement shall
bind the successors, assigns, receivers, trustees and representatives of
First Banks and shall inure to the benefit of the Beneficiaries.
SECTION 2.2. AMENDMENT.
So long as there remains any Beneficiary or any Preferred
Securities of any series are outstanding, this Agreement shall not be
modified or amended in any manner adverse to such Beneficiary or to the
holders of the Preferred Securities.
SECTION 2.3. NOTICES.
Any notice, request or other communication required or permitted
to be given hereunder shall be given in writing by delivering the same
by facsimile transmission (confirmed by mail), telex, or by registered
or certified mail, addressed as follows (and if so given, shall be
deemed given when mailed or upon receipt of an answerback, if sent by
telex):
First Preferred Capital Trust II
c/o First Banks, Inc.
11901 Olive Boulevard
St. Louis, MO 63141
Facsimile No.: (314) 567-3490
Attention: Chief Financial Officer
First Banks, Inc.
11901 Olive Boulevard
St. Louis, MO 63141
Facsimile No.: (314) 567-3490
Attention: Chief Financial Officer
SECTION 2.4. This agreement shall be governed by and construed
and interpreted in accordance with the laws of the State of Missouri
(without regard to conflict of laws principles).
C-3
THIS AGREEMENT is executed as of the day and year first above
written.
FIRST BANKS, INC.
By:
----------------------------------
Its:
---------------------------------
FIRST PREFERRED CAPITAL TRUST II
By:
----------------------------------
Its:
---------------------------------
C-4
EXHIBIT D
CERTIFICATE NUMBER NUMBER OF PREFERRED SECURITIES_________
P-
CERTIFICATE EVIDENCING PREFERRED SECURITIES
OF
FIRST PREFERRED CAPITAL TRUST II
____% CUMULATIVE TRUST PREFERRED SECURITIES
(LIQUIDATION AMOUNT $25 PER PREFERRED SECURITY)
CUSIP NO.___________
First Preferred Capital Trust II, a statutory business trust created
under the laws of the State of Delaware (the "Trust"), hereby certifies
that ________________ (the "Holder") is the registered owner of _____
preferred securities of the Trust representing undivided beneficial
interests in the assets of the Trust and designated the ________%
Cumulative Trust Preferred Securities (liquidation amount $25 per
Preferred Security) (the "Preferred Securities"). The Preferred
Securities are transferable on the books and records of the Trust,
in person or by a duly authorized attorney, upon surrender of this
Certificate duly endorsed and in proper form for transfer as provided
in Section 504 of the Trust Agreement (as defined herein). The
designations, rights, privileges, restrictions, preferences, and other
terms and provisions of the Preferred Securities are set forth in, and
this Certificate and the Preferred Securities represented hereby are
issued and shall in all respects be subject to the terms and provisions
of, the Amended and Restated Trust Agreement of the Trust dated as of
_________, 2000, as the same may be amended from time to time (the "Trust
Agreement"), including the designation of the terms of Preferred Securities
as set forth therein. The Holder is entitled to the benefits of the
Preferred Securities Guarantee Agreement entered into by First Banks,
Inc., a Missouri corporation, and State Street Bank and Trust Company of
Connecticut, National Association, as guarantee trustee, dated as of
_________, 2000, (the "Guarantee"), to the extent provided therein. The
Trust shall furnish a copy of the Trust Agreement and the Guarantee to
the Holder without charge upon written request to the Trust at its
principal place of business or registered office.
Upon receipt of this Certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
Unless the Certificate of Authentication has been manually
executed by the Authentication Agent, this Certificate is not valid or
effective.
IN WITNESS WHEREOF, the Administrative Trustees of the Trust have
executed this certificate this ___ day of ____________, 20__.
D-1
Dated: FIRST PREFERRED CAPITAL TRUST II
CERTIFICATE OF AUTHENTICATION
This is one of the ____% By
Cumulative Trust Preferred Securities -------------------------------
referred to in the within-mentioned Trustee
Trust Agreement.
STATE STREET BANK & TRUST COMPANY By
OF CONNECTICUT, NATIONAL ASSOCIATION, -------------------------------
as Authentication Agent and Registrar Trustee
By
-------------------------------
Trustee
By
--------------------------
Authorized Signature
D-2
LEGEND
FOR CERTIFICATES EVIDENCING
GLOBAL PREFERRED SECURITIES ONLY:
Unless this certificate is presented by an
authorized representative of The Depository
Trust Company, a New York corporation ("DTC"),
to Issuer or its agent for registration of
transfer, exchange, or payment, and any
certificate issued is registered in the name of
Cede & Co. or in such other name as is requested
by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other
entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an
interest herein.
D-3
[FORM ON REVERSE OF CERTIFICATE]
The Trust will furnish without charge to any registered owner of
Preferred Securities who so requests, a copy of the Trust Agreement and
the Guarantee. Any such request should be in writing and addressed to
First Preferred Capital Trust II, c/o Secretary, First Banks, Inc., 135
North Meramec Avenue, St. Louis, Missouri 63105 or to the Registrar
named on the face of this Certificate.
The following abbreviations, when used in the inscription on the
face of this certificate, shall be construed as though they were written
out in full according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - ............Custodian...............
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of under Uniform Gifts to Minors
survivorship and not as tenants Act.................................
in common (State)
TOD - transfer on death direction in event of UNIF TRF MIN ACT - .......Custodian (until age)........
owner's death, to person named on face and (Cust)
subject to TOD rules referenced ........under Uniform Transfers
(Minor)
to Minors Act.......................
(State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, hereby sell, assign and transfer unto
--------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------
- --------------------------------------
- -----------------------------------------------------------------------------
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
Preferred Securities
- ---------------------------------------------------------
represented by the within Certificate, and do hereby
irrevocably constitute and appoint
Attorney
- ---------------------------------------------------------------------
to transfer the said Preferred Securities on the books of the within
named Trust with full power of substitution in the premises.
Dated,
-----------------------
- -----------------------------------------------------------------------------
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
SIGNATURE(S) GUARANTEED:
- -----------------------------------------------------------------------------
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION
(BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH
MEMBERSHIP IN AN APPROVED MEDALLION SIGNATURE GUARANTEE PROGRAM), PURSUANT
TO S.E.C. RULE 17Ad-15.
D-4